Greenough v Ministry of Justice [2013] EWHC 3112 (Admin)

Case No CO/3570/2013

[2013] EWHC 3112 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester Greater Manchester

Date Wednesday, 11th September 2013

England

M60 9DJ

B e f o r e:

HIS HONOUR JUDGE PELLING QC

(Sitting as a Judge of the High Court)

Between

GREENOUGHClaimant

Between

MINISTRY OF JUSTICEDefendant

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Mr Adam Fullwood appeared for Claimant

Mr Chamberlain (instructed by Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]HIS HONOUR JUDGE PELLING: This is an application for permission to continue judicial review proceedings, permission having been refused on the papers by His Honour Judge Raynor QC sitting as a judge of this court by an order made on 15th July 2013.

[2]The challenge is brought by the claimant against a refusal by the Ministry of Justice acting by Lord McNally, a Minister of State, on behalf of the Lord Chancellor, to authorise exceptional funding, pursuant to section 6(8) subparagraph (b) of the Access to Justice Act 1999 for representation at an inquest into the death of her brother, Mr Paul Shovelton, who I refer to hereafter as "the deceased", who it is common ground died in his own home on 8th February 2012, on the day following his discharge from hospital.

[3]The need for exceptional funding arises because advocacy at an inquest is excluded from the scope of funding by Schedule II of the Access to Justice Act 1999. It will therefore only be in exceptional cases that funding advocacy will be necessary and appropriate for inquests. The policy by reference to which applications for legal aid in exceptional cases will be determined is contained in guidance issued by the Lord Chancellor.

[4]The guidance that is issued by the Lord Chancellor identifies the criteria that the Lord Chancellor would expect to have met before exceptional funding will be granted. In summary, there are two gateways that are provided. The first is where there is a significant wider public interest in the applicant for legal aid being represented at the inquest. Although relied upon on the written procedure in this case, this gateway has not been relied upon before me at this hearing. The second gateway applies where it is necessary for the family of the deceased to be represented so as to enable the Coroner to carry out an effective investigation into the death as required by

Article 2 of the European Convention

of Human Rights. It is that second gateway that the claimant relied upon in support of the application to the Minister. The factual circumstances that give rise to the claim are complicated. In essence however, it comes to this. Mr Shovelton suffered from a history of alcohol and substance abuse, and poor health generally, having suffered from heart attacks, strokes and depression at various stages in his life. The documentation reveals a history of self-harm and self neglect as well.

[5]The particular facts which led up to the death of the deceased and thus the application that had been made followed incidents in November and December 2011 when the deceased was admitted to hospital, having been found in what, on any view, are deeply distressing personal circumstances which relate to his self neglect. The repeated pattern was of discharge from hospital and some social work support, followed by further examples of self-harm and self neglect which resulted in further admissions to hospital.

[6]On 24th January 2012 the deceased was found on the floor of his flat by employees or agents of the local authority housing association who were attending at the flat for the purposes of cleaning it. The result was that the deceased was taken to hospital and whilst he was in hospital what is described as "a deep clean" of his flat took place.

[7]On 2nd February 2012 the claimant attended the hospital where the deceased was a patient. She asked for help in relation to the management of the deceased given the history of admissions to hospital following self neglect and she was assured that the deceased would be noted as a vulnerable person.

[8]The relevant immediate history I can pick up as having occurred on 6th, 7th and 8th February 2012. On the 6th February the claimant apparently contacted the Social Services Department of the relevant local authority to explain the problems suffered by the deceased. She maintains that the flat that was the deceased's home was not suitable for him to live in and asked for an emergency care package to be arranged. The local authority Housing Association informed the claimant that an emergency care package would be delivered, so she says on 7th February 2012. On 7th February 2012 the deceased discharged himself from hospital, the more detailed circumstances surrounding that decision being those I turn to in a moment. It would appear the care package did not commence. On 8th February 2012 the deceased was found dead in his flat, having apparently collapsed by the side of his bed.

[9]The further evidence concerning the circumstances of the deceased's death come from a statement of the interested party in these proceedings, Mr Alan Peter Walsh, Her Majesty's Deputy Corner for Greater Manchester West. In that statement, which was filed principally to deal with a misapprehension that appeared in the initial Decision Letter to which I refer in a moment, the Coroner sets out in summary form the results of a postmortem examination carried out on the deceased by Dr Stephen Mills on 14th February 2012. Initially, a decision was taken to postpone providing a cause of death until various blood samples had been analysed, particularly for alcohol content. A blood sample was analysed which showed concentration of alcohol in the blood sample of a level which was expected to cause drunkenness but was not fatal.

[10]On 6th March 2012 the pathologist, Dr Mills, reported the deceased had severe narrowing of his coronary arteries, there was an acute left ventricular failure affecting his lungs and he stated in his opinion the cause of death 1(a) acute ventricular failure; 1(b) coronary artery atheroma. Dr Mills further reported that in his opinion death was due to natural causes and not directly related to alcohol consumption.

[11]In relation to the circumstances surrounding the discharge of the deceased from hospital, in the last unnumbered paragraph on the second page of the Coroner's witness statement he sets out material information supplied to him by Dr Jay Roomey, a consultant physician, who had managerial responsibility for the treatment of the deceased. Dr Roomey reported that the deceased had made a good physical recovery whilst in hospital, had been seen by a psychiatrist and pointed out that the deceased had a history of excessive alcohol consumption, great risk of self neglect and confirmed the deceased had been referred to the Vulnerable Adult Team by his social worker. Dr Roomey further reported to the Coroner that during the last few days of his stay in hospital the deceased threatened to discharge himself at a time when the deceased’s social worker was trying to arrange an emergency care package, but the deceased refused to stay in hospital whilst the package was put in place and chose to discharge himself against the advice of medical and nursing staff. The statement then has this paragraph:

"I have information that the Wigan Council duty social worker from the hospital discharge team based at Lee Infirmary was involved with the deceased immediately prior to his discharge and subsequently to his discharge and two social workers visited his home address on 7th February 2012. The view expressed by the Wigan Council People Directorate was the deceased had been assessed as having mental capacity to decide where he should live and the local authority had no legal powers to prevent him from returning home. Furthermore, there has been a psychiatric assessment and the deceased had been assessed as not having a mental illness. The Wigan Council People Directorate also indicates that it was recognised the deceased was vulnerable and therefore considerable efforts were made to offer him appropriate support but the local authority was unable to exercise any legal powers."

[12]That then is the evidence that is available and it was against that background that an application was made for funding by reference to the second of the two gateways for exceptional funding which I have described, that is funding representation for the family of the deceased because it was likely to be necessary to enable the Coroner to carry out an effective investigation into the death as required by

Article 2 of the European Convention

of Human Rights.

[13]The Decision Letter that was initially provided is dated 4th December 2012. It included, at page 3, a paragraph to the effect that:

"The Minister also noted that the Coroner's office had indicated to you that the Coroner does not consider an Article 2 type inquest to be appropriate in this case ..."

This stimulated the Coroner, who is an interested party in this claim, to write to the court and I think also the parties on 10th April 2013. That included the statement from the Coroner to which I have referred earlier in this judgment and he says this in the third paragraph of his letter:

"I am enclosing a witness statement which I signed on the 9th April 2013. Having read the claimant's claim form and the attached documentation including the decision letter under review I have noted the suggestion that I have decided that Article 2 of the ECHR is not engaged in relation to the death of Paul Shovelton. I consider that to be a misunderstanding of the factual position. The purpose of my statement is set out in the history of this matter and it is plain that I had not yet reached any conclusion as to whether Article 2 is or not engaged in the inquest. I intend to hold a pre-inquest review hearing once these judicial review proceedings are concluded which I shall hear submissions from the interested parties and then form a view as to the engagement of Article 2 and the proper scope of the inquest."

[14]This resulted in the original decision being referred back to the Minister for further consideration since it appeared, on the face of the original Decision Letter, that he had proceeded on the basis of the factual assumption which the Coroner said was misplaced. The result was a further decision making process as set out in a letter from the Treasury Solicitors dated 8th May 2013. The end result was that the Minister again rejected the application for exceptional funding, withdrawing his reliance upon what had turned out to be a misplaced assumption, but otherwise confirming his decision by reference to all the other matters there referred to. The letter from the Treasury Solicitor included the sentence "Lord McNally considered that the fact that the Coroner has yet to come to any view of the engagement of Article 2 did not affect the vast balance of those reasons."

[15]At the outset of this case I enquired of counsel for the claimant whether in circumstances where the Coroner had yet to take a decision as to whether or not an Article 2 type inquest was to be held, the application of exceptional funding was premature and on that ground this application ought to fail. Counsel maintained that the claimant was entitled to seek funding on the assumption that an Article 2 type inquest would be ordered and that I should proceed to evaluate the application on that basis.

[16]In my judgment, whilst I proceed to consider the application on its merits, I note that the gateway which is relied upon by the claimant for the purposes of this application is one which is premised on it being likely to be necessary for the family of the deceased to be represented to enable the Coroner to carry out an effective investigation into the death as required by Article 2. If and to the extent a decision is yet to be taken as to whether or not an inquest which is of the enhanced type necessary to comply with Article 2 is to be held, it remains my view that the application for funding was premature. The Minister was entitled to refuse exceptional funding unless and until a decision had been taken as to whether or not an Article 2 type inquest was to be held. However, having made that point, I put it to one side because I am invited to deal with this application on the basis that on the facts it is highly likely that the Coroner would make such an order.

[17]The principles which apply in this area of the law are set out in the only case that has been formally cited to me R (on the application Humberstone v The Legal Services Commission

[2010] EWCA Civ 1479

, by reference to a number of earlier decisions which have not been formally cited to me. The relevant start point for these purposes is what is said in paragraph 21 of that case, concerning the effect of

Article 2 of the Convention

. As is well known, Article 2 provides that everyone's right to life should be protected by law. As is observed in paragraph 21 of the judgment in Humberstone, that carries with it a primary duty not to take life , a duty to take appropriate legislative and administrative steps to protect life and imposes on State authorities a duty to protect those in their immediate care from violence at the hands of others or their own hands. The point which is made in the circumstances of this case is that because the deceased was a vulnerable person, and because Social Services had become involved in attempting to provide a package of social care support, it therefore follows that the State, in the form of the local authority, had come under a duty to protect the deceased as being a person within its immediate care.

[18]So far as Coroners' inquests are concerned, Article 2 imposes an obligation on the State to investigate by effective public investigation, conducted by an independent official any death where it appears that any of the State's obligations have been or may have been violated, and it appears that agents of the State are or may in some way be implicated. The key words in that formulation, which is to be found in paragraph 22 of the judgment in Humberstone, are the words "may have been" and "may be in some way". This, in my judgment, carries with it a requirement that there must be some potential causal link between the alleged breach of duty and the death of the deceased.

[19]In this case it is to be remembered that the only evidence available to me is that the deceased discharged himself from hospital apparently in the face of advice from medical and nursing staff not to do so, pending the provision of an appropriate care and died subsequently, albeit shortly subsequently to his discharge, as a result of a naturally occurring condition.

[20]The Article 2 duty has been explored as far as I can see in the case law which is referred in Humberstone, principally by reference to the State manifested by the National Health Service in its various forms. Thus, in Takoushis

[2005] EWCA Civ 1440

[2006] 1 WLR 461

, Sir Anthony Clarke MR, giving the judgment of the court referred specifically to the position where a person died as a result of what was arguably medical negligence in an NHS hospital, as triggering this particular jurisdiction and as requiring the State to have a system which provides for the practical and effective investigation of the facts and the determination of civil liability. This of course is provided in the context of clinical negligence both by the Coroner's court and by the civil courts.

[21]The claimant relies upon paragraphs 56 and 58 of the judgment in Humberstone as supporting her contention that in the circumstances of the present case the Article 2 duty was triggered as against the local authority and thus there must be an Article 2 compliant inquest.

[22]In paragraph 56 of the judgment in Humberstone, Smith LJ, referred to the judgment of Richards J (as then was) in Takoushis, where at paragraph 59 of his judgment Richards J said this:

"59. I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows: (i) Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life. This is stated clearly in Powell. (ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life."

At paragraph 58 of her judgment Smith LJ said this:

"I would summarise his conclusions [that is the conclusions of Richards J (as then was)] by saying that article 2 imposes an obligation on the state to set up a judicial system which enables any allegation of possible involvement by a state agent to be investigated. That obligation may be satisfied in this country by criminal or civil proceedings, an inquest and even disciplinary proceedings or any combination of those procedures. This obligation envisages the provision of a facility available to citizens and not an obligation proactively to instigate an investigation. Only in limited circumstances (I depart from Richards J only so far as to decline to call them exceptional) will there be a specific obligation proactively to conduct an investigation. Those limited circumstances arise where the death occurs while the deceased is in the custody of the state or, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation. They do not include cases where the only allegations are of 'ordinary' medical negligence."

[23]By reference to this analysis, it is submitted on behalf of the claimant that there is at least an arguable case for saying that the Coroner should, in the circumstances of this case, conduct an Article 2 compliant inquest because there is nothing in the case law which limits the scope of an Article 2 enquiry to the death of someone while in the custody of State, but can arise in the context of any allegation where the allegation is of a systemic failure on the part of a State organ to either provide suitable facilities or adequate staff or appropriate systems of operation.

[24]The submission which is made on behalf of the Secretary of State is in essence that the original decision letter of 4th December 2012 correctly sets out the legal gateway that can properly be relied upon, accurately summarises the case law and in particular Humberstone and correctly rejects the claim form for legal aid by reference to the gateway relied on because, first, in the circumstances there is nothing in the case law which suggests that an Article 2 type duty could arise as against a local authority simply by reason of the local authority having agreed to provide a social care package, and secondly, and in any event that there is no evidence or no sufficient evidence to justify the suggestion that the local authority was potentially liable for breach of its Article 2 duties by reference to the failure to provide the relevant care package.

[25]In particular, reliance is placed on the fact that the deceased died the day after he had been discharged from hospital but in circumstances where his cause of death has been found to be a heart attack and natural causes and not related to his drinking, at any rate directly. There is no evidence at all that the non-provision of care by the local authority either was even arguably a cause of the death of the deceased or in any way accelerated what was otherwise an entirely natural death. It was submitted that it is difficult to see how on the evidence it could be said that the relevant local authority could have known or ought to have known that there was a real or immediate risk of death, when he had made an apparently full physical recovery by the time he came to discharge himself from hospital.

[26]In those circumstances, the question that arises is whether it is realistically arguable that the Lord Chancellor has acted unlawfully by refusing to grant exceptional legal aid in the circumstances of this case. In my judgment, it cannot be so argued and that is so for the following reasons. First, as I have already said, no decision has yet been taken by the Coroner as to whether or not an Article 2 inquest is to be held. Thus, and to that extent it seems to me an application for exceptional legal aid was premature and that was so not least because the legal aid that was sought was not in aid of making an application to the Coroner that the inquest should be one held on the wider Article 2 compliant basis but rather was sought solely for the purpose of funding advocacy at such an inquest, assuming one was to be held. Thus, it seems to me, that the Lord Chancellor was entitled as at the date of his decision and his revised decision to refuse the request because, at that stage, and indeed, as at today's date, no decision has been taken as to whether or not an Article 2 compliant inquest is to be carried out.

[27]More generally however, and irrespective of that point, before it could be said that the Lord Chancellor or Minister of State had acted unlawfully, by refusing exceptional legal aid, it would have to be demonstrated that there was at least a credible basis for suggesting that systemic failings by the emanation of the State concerned were a contributory factor to the death of the deceased. There is no such evidence that that is so. The evidence suggests, as I have said, that at the date the deceased discharged himself from hospital he had made, as it was put in the statement from the Coroner "a good physical recovery" and that his discharge from hospital was a discharge by the deceased himself, against the advice of medical and nursing staff to remain in hospital pending the provision of a support package.

[28]There is no evidence that the deceased died or died earlier than he might otherwise have done as a result of any failings on the part of the local authority to provide the care package. Indeed, there is no evidence as to what care package it was intended should be provided, so it becomes extremely difficult to analyse that issue with any degree of precision. The fact remains however, that the post mortem report on the deceased, as summarised by the Coroner, describes in fairly clear detail that the deceased was a chronically ill man, with severe heart disease, which had compromised his lungs and that his death was the result of that chronic ill-health.

[29]In the absence of any material which suggests that potentially his death occurred earlier than it would have as a result of the failure by the local authority to provide the relevant care package (whatever that was) it is difficult to see how the Lord Chancellor can be criticised for failing to provide discretionary legal funding for representation at an inquest, and particularly when there is a decision yet to be taken as to whether or not the inquest should be in the more wide-ranging Article 2 compliant format.

[30]I then return to the analysis of Smith LJ in Humberstone at paragraph 58 and remind myself of the limited circumstances that can trigger the Article 2 duty. The deceased was not in the custody of the local authority or any other emanation of the State. The deceased was not a detained patient, or a voluntary patient in a mental hospital. He was a patient in a hospital who had fully mental capacity who discharged himself as he was entitled to. In summary most of not all the critical indicia of an Article 2 claim are not made out in the circumstances of this case. The deceased was not under the care or control of the emanation of the state concerned at the time of his death, and there is no evidence that what is alleged to have constituted the breach of duty (the failure to provide a care package or alternative accommodation more suited to his needs) was is any way causative of the deceased’s death, either directly or indirectly.

[31]This leads me to the conclusion that permission should be refused. Post Judgement Note 33. I was asked by counsel for the Defendant after delivery of the judgment set out above whether I would give permission for this judgment to be used in similar cases. Counsel for the Claimant was neutral on the issue. Whilst expressing the view that these cases are likely to be acutely fact sensitive, I gave permission.