Death under the microscope

When caring for and treating sick and frail patients, it is inevitable some will die; some deaths will be the subject of a coroner's inquest.

The impact of the Human Rights Act - particularly Article 2 of the European Convention on Human Rights (the 'right to life') - and recent case law means it is more likely there will be an inquest looking closely at systems failures which may have contributed to, or prevented, death.

The convention places obligations on the state and public authorities 'to protect and promote certain rights and freedoms of individuals'. For the purposes of the HRA, the NHS is a 'public authority'.Article 2 of the convention provides that the state:

must not (other than in defined exceptional circumstances, such as war) take life intentionally;

must take steps to protect life where its servants are, or ought reasonably to be, aware that a person in the state's care is at immediate risk of death or serious injury.

Potentially, the state faces an enormous obligation to organise effective investigations into hundreds, if not thousands, of deaths each year, to fulfil the implied need to investigate.

It is not surprising, then, that there has been considerable focus on whether a coroner's inquest fulfils this.

What type of investigation will satisfy Article 2?

InWright and Bennett v Home Office - a case of a young man's death in prison following a severe asthma attack - the court referred to 'an obligation to procure an effective official investigation... in order to maximise future compliance'. It further commented that an inquest may or may not satisfy the implied obligation to investigate.

In the earlier case of Jordan v UK, where the applicant's son had been shot and killed by a sergeant of the Royal Ulster Constabulary, there had been no investigation by the authorities.

The court outlined what it saw as the features of an effective investigation: initiated by the state; effective and independent;

capable of determining responsibility; prompt; include sufficient public scrutiny to ensure accountability; and give next of kin adequate opportunity to participate.

Since Jordan, the courts appear to have pulled back from insisting that all these elements are required. A more flexible approach was approved in the later Edwards v UK case, providing the investigation satisfies the 'interlocking aims' of minimising the risk of future similar deaths; giving the beginnings of justice to the bereaved; and assuaging the anxiety of the public.

Does an inquest satisfy Article 2?

An inquest may satisfy an Article 2 investigation.However, there are significant difficulties.

Participation by the family:legal representation at inquests does not generally attract public funding and legal challenges are pending as to the state's failure to provide funding for legal representation.

Public accountability: the coroners' rules provide that no verdict shall be framed in such a way as to identify a named individual as responsible for the death, nor to lead to any conclusion as to liability.

However, in the recent (R) Middleton v Coroner for West Somerset case, the Appeal Court found a coroner might return a verdict of 'system neglect'within an organisation that had caused or contributed to the death. This is a significant extension of the existing concept of 'neglect' in coroners' inquests.

The rationale behind the system neglect verdict is that if the inquest investigation and verdict can be extended in this way, it is more likely to fulfil the state's Article 2 obligation.

The Middleton system neglect inquest lays open the NHS and other public authorities to closer scrutiny and more wide-ranging investigation. If the public authority has not undertaken its own effective review of systems failures, the coroner may be persuaded to extend his inquest to include systems failures. This will involve more staff giving evidence in formal, public proceedings. An inquest is not the best environment in which to explain complex systems, medical treatments, staffing and resource issues, etc. It also does not sit easily with the culture of openness the NHS has been keen to foster in recent years. l Diane Hallatt is a partner at Beachcroft Wansbroughs and chair of West Midlands mental health review tribunal.

Further information l www. doh. gov. uk/humanrights l www. hmso. gov. uk/acts/ acts1998/19980042. htm