Lee, R (On the Application Of) v

For an Article 2 operational duty, a court or coroner must consider the relevant factors together. These include the existence of a real and imminent risk to life, the claimant’s vulnerability, and the extent to which the state assumed responsibility for the claimant’s welfare and safety. Control is not an exhaustive test.

Where a coroner has failed to undertake that assessment, the appropriate remedy may be remission for further factual findings rather than quashing the decision. A systemic Article 2 duty requires evidence of a failure in the system or regulatory arrangements. Ordinary clinical negligence, without more, is insufficient.

The claimant sought judicial review of the Assistant Coroner’s decision that Article 2 was not engaged in the inquest into her daughter’s death. The deceased had significant mental health difficulties, lived in the community under a care plan, and died after taking an overdose.

The claim originally advanced nine grounds. Permission was granted or renewed on grounds concerning the operational duty, systemic duties, the evidential threshold, causation and the interpretation of Powell v United Kingdom. The central questions were whether the Coroner had properly assessed the operational-duty factors identified in Rabone v Pennine Care NHS Trust, and whether there was an arguable systemic Article 2 breach.

1. Ground 2 allowed to the extent of remission. The Coroner had treated assumption of responsibility, effectively equated with control, as the decisive issue. She had not substantively considered Melissa’s vulnerability or the nature and extent of the risk to her life. That approach failed to engage with the three factors identified in Rabone v Pennine Care NHS Trust.
2. The existence of a real and imminent risk to life is necessary but not sufficient for an operational duty. The court must consider, as relevant, risk, vulnerability and assumption of responsibility, including control. Those factors may need to be assessed individually and cumulatively. Whether the circumstances justified extending the duty beyond the situations previously recognised was primarily a matter for the Coroner as fact-finder.
3. The court declined to quash the decision. The facts had not been fully examined before the Coroner, and the judicial review court should not make the primary factual findings in a developing area of law. The matter was remitted on Ground 2 so that the Coroner could reconsider the written submissions and receive fuller submissions on vulnerability, risk and assumption of responsibility.
4. Ground 8 failed. The Coroner correctly applied the distinction in Powell v United Kingdom between ordinary clinical negligence and a systemic failure capable of engaging Article 2. There was no evidence before her of a failure in the Trust’s arrangements for securing high professional standards and protecting patients’ lives. Fernandes v Portugal did not provide an arguable basis on the facts for a separate exceptional systemic case.
5. The remaining grounds were unarguable or unsupported. The applicable threshold was an arguable breach, and the Coroner had applied that threshold. Grounds 4 to 9 did not justify quashing the decision, apart from the remission limited to Ground 2.

The judgment describes the procedural history of the judicial review claim. Permission was initially refused by Soule J on 4 July 2017. On renewal, permission was granted on Ground 2 and other grounds were adjourned. Floyd LJ refused permission to appeal on 7 October 2018. The High Court then conducted the substantive and rolled-up hearings, remitting Ground 2 to the Coroner and dismissing the remaining grounds.