Joy Dove v (1) HM Assistant Coroner for Teesside and Hartlepool and (2) Dr Shareen Rahman  EWCA Civ 289
In Issue 10 of QMLR, I considered the judgment of the Divisional Court that refused the Applicant’s four grounds seeking an order to quash the Coroner’s determination. That article, and a more detailed summary of the factual background, can be found here.
This case concerned Ms Whiting, who had a history of spinal conditions, mental health problems, and suicidal ideation. In September 2016, Ms Whiting needed a reassessment for her ESA benefit allowance. She requested a home visit due to her mobility problems and anxiety. The DWP failed to action this, and required her to attend an appointment in person. Ms Whiting was unable to do so, at that time being housebound with pneumonia.
DWP took no steps to ascertain the reasons for Ms Whiting’s non-attendance and considered that no ‘good cause’ was proven for Ms Whiting’s failure to attend, that there was no evidence of limited capability for work, and stopped her ESA benefits on 7 February 2017.
Between 10 and 15 February 2017, Ms Whiting had discussions with DWP about this decision, and both she and a CAB representative submitted decision reconsideration requests. However, she was found dead on 21 February. The medical cause of death was recorded as being the synergistic effects of morphine, amitriptyline, and pregabalin, and cirrhosis. At the inquest, the Coroner referenced the ESA problems, but gave a short-form conclusion of suicide.
Following the inquest, two pieces of fresh evidence were obtained. The first was a report by an Independent Case Examiner (‘ICE’) report which criticised the DWP for failing to refer Ms Whiting for a home visit for her reassessment, failing to call her/undertake a safeguard visit, and failing to contact her GP. The second was a psychiatric report from Dr Turner which concluded that “there was likely to have been a causal link between [the Department’s] failings outlined in the…ICE report and Jodey’s state of mind immediately before her death.”
Ground i: The Divisional Court was wrong to conclude that a fresh Jamieson inquest was not necessary or desirable in light of the fresh evidence relating to the abrupt cessation of Ms Whiting’s benefits by the DWP and the likely effect of that on Ms Whiting’s mental health.
The Appellant submitted to the Court of Appeal that the fresh evidence obtained since the first inquest revealed at least a possibility that the abrupt cessation of Ms Whiting’s benefits was a factor that contributed to the deterioration in her mental state, which led to her taking her on life. A fresh inquest would investigate if there was a causal connection between the failings identified in the ICE report and Ms Whiting’s death, with the assistance of objective evidence from Dr Turner’s report.
The Court considered that the evidence before the Coroner in the first inquest did not go beyond the assertions of the Deceased’s family, to link Ms Whiting’s death to the fact that the Department stopped her benefits. However, the ICE report set out why Ms Whiting’s benefits were cut suddenly, and it was accepted that the DWP should not have done so, and that their failings were extensive. Furthermore, Dr Turner’s report concerned the way in which the abrupt cessation of benefits was likely to have affected Ms Whiting’s state of mind.
Consequently, the Court concluded that the subjective evidence of Ms Whiting’s family members “is a forensic world away from evidence of an expert psychiatrist who can speak with objectivity, drawing on long clinical experience, about the likely impact on the deceased’s established mental illness of actions by third parties such as the Department” .
Further, the Court accepted that the Divisional Court was in error in separating the issue of Ms Whiting’s mental health deterioration from her death and in approaching causation on the basis of whether the death would have occurred ‘but for’ the particular act or omission.
At , the Court laid out four reasons for its decision that, contrary to the First Respondent’s submission, it should be open to a coroner to investigate the impact of past events on a person’s mental health in a suicide case:
- There is existing authority which shows that it is open to a coroner to record facts which contributed to the circumstances which may or may not have led to death;
- There was no support for the First Respondent’s approach distinguishing between physical causes that may have contributed to death (e.g. an unattended open window or sexual assault) and psychiatric causes that may have exacerbated mental illness;
- It is undesirable to restrict a coroner’s discretion to conduct whatever investigations are appropriate within a Jamieson inquest to establish ‘how’ a person came to their death, and;
- It is the role of a coroner to investigate whether a deceased intended to take their own life and whether they did so while their mind was disturbed. In this way, investigating the cause of any such disturbance may be part of, or lie very close to, matters which are already before the coroner.
For these reasons, the Court of Appeal found that the Divisional Court was in error in its approach to the fresh evidence in two different respects.
The Court then turned to consider the statutory test of whether it is necessary or desirable in the interests of justice that a further inquest should be held. It was reiterated that an inquest’s purpose is to seek out and record as many of the facts concerning the death as the public interest requires and to establish the ‘substantial truth’. The Court considered that the family should have the opportunity to invite a coroner to make a finding of fact that DWP’s actions contributed to Ms Whiting’s deteriorating mental health, and if that finding were to be made, it would be open to the family to invite the Coroner to include a reference to that finding in the conclusion at box 3 or 4 of the ROI. This was considered to be desirable.
Further on desirability, the Court considered at  –  that:
- The matter of the possibility for the cessation of benefits to have contributed to Ms Whiting’s death was of real significance to Ms Whiting’s family, and it was reasonable for the family to press for this to be investigated – this is part of determining the ‘substantial truth’;
- If a coroner finds that Ms Whiting’s death was connected with the abrupt cessation of benefits by DWP, the public would have a legitimate interest in knowing that, and for the matter to be examined in public;
- It is possible that a coroner would want to submit a PFD report, and to hear from DWP about remedial steps already taken, and a coroner should have this opportunity, and;
- The fact that the conclusion may be the same after a second inquest is not a reason not to direct for a second inquest.
Ground ii: The Divisional Court was wrong to conclude that a fresh Middleton inquest was not necessary or desirable in light of arguable breaches of the Article 2 operational duty owed to Ms Whiting by the DWP.
This ground was dismissed by the Court, who concluded that the DWP did not owe Ms Whiting an article 2 operational duty.
In considering the facts, the Court found that some suicidal ideation was mentioned in exchanges between Ms Whiting and the DWP in 2014 and 2016, but not at all in the exchanges immediately preceding her death in 2017. There was also evidence that no one around Ms Whiting that was aware that she was at real and immediate risk of suicide. As such, there was no proper basis for concluding that the DWP knew, or ought to have known, of there being a real and immediate risk to Ms Whiting’s life on cessation of the benefits. The fact that the DWP has policy arrangements for dealing with vulnerable persons did not indicate an assumption of responsibility to safeguard against the risk of suicide either.
The Court of Appeal dismissed ground 2 of the appeal, but allowed the appeal on the basis of ground 1, and directed for a fresh Jamieson inquest to be conducted.
This author considers the following to be the key points from the decision:
- Bear in mind not simply the content of evidence, but the potential sources that can present that evidence. Although the original inquest had evidence of the link between the cessation of benefits and Ms Whiting’s deteriorating mental state from her family, such evidence sourced from an expert’s perspective marked that evidence out as ‘fresh evidence’ for the purposes of directing a new inquest, as it provided the scope for new conclusions that could be reached by a coroner.
- A strong reminder that the narrow ‘but for’ causation test is inappropriate, and rather consideration should be given to factors that are more than a ‘non-trivial’ cause. The Court of Appeal did not take well to the submission seeking to separate Ms Whiting’s mental health deterioration from her death. Consequently, a coroner’s scope of investigation can be broad, as long as it still fits the confines of considering ‘how’ a person came to their death.
- In a similar vein, investigating how it came to be that a deceased’s mental health deteriorated prior to their death is here considered to be within the confines of what a coroner could investigate in determining how a person came to their death.