Death by indifference and the Duty for an Effective and Independent Investigation: some thoughts beyond R(Antoniou)

A few days ago, I read this excellent blog by Ross Beaton on the case of R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin), available here.

Antoniou was detained in hospital under Section 3 of the Mental Health Act 1983 as a suicide risk but took her own life because of inadequate supervision. Her death was investigated by the mental hospital she was detained and an inquest by jury subsequently took place.

This duty to investigate death under custody exists under the common law, but more interestingly, for the purposes of this analysis, under Art. 2 ECHR. Despite its title as ‘right to life’, Art. 2 protects a limited right not to be killed unlawfully. (This point is something that I first heard from Professor Ken Mason, who taught me medical law at Edinburgh. I thank him.) 

So when an unlawful killing takes place, a positive obligation to investigate, effectively and independently into the circumstances of the death, kicks in. In Antoniou, the court held that an inquest satisfies these requirements. In stark contrast to what happens in cases of death under police custody there need not be any independent investigation system prior to the inquest stage. Art. 2 was not violated.

For the purposes of this analysis, I will not go into a deeper examination of this issue. I will only note that there is here much, much more than meets the eye. The Equality and Human Rights Commission has very persuasively highlighted the problems for investigating deaths of patients in mental health settings and claimed that current law may not meet Article 2 obligations. Read Chapter 2 of the Human Rights Review 2012 here.

Additionally, if we take an expansive view of what custody means, to cover essentially all situations where loss of liberty occurs (essential control of movement for patient in care settings), the issue becomes more serious still. The  Confidential Inquiry into premature deaths of people with learning disabilities has highlighted the extent of Art. 2 issues that arise from death by indifference. Surprisingly, there is very little in that report as to how much it would improve healthcare standards if accountability measures were put in place, by ensuring an independent and effective inquiry in premature deaths for persons with learning disability.

The point I wish to make is rather simple and relates to the second blog that Ross Beaton wrote on Antoniou, on the discrimination aspect of the case. The court held that no issue of discrimination arose in relation to the differential investigation system for deaths occurring in mental health hospitals and deaths in police custody. I quote paragraphs 103-104 of the judgment

Superficially, it might seem as if there is a difference of treatment if the State’s investigative obligation into a suicide is more stringent in the case of a prisoner of sound mind than in the case of a detained mental patient.   However,  upon reflexion it will be clear that this difference does not arise from the mental patient’s disability;  it arises from the circumstances in which each person is detained.  In the case of the prisoner of sound mind, he will be detained within the prison estate for reasons of punishment, deterrence, protection of the public and rehabilitation.  He will be under the supervision of a prison staff composed mainly of prison officers.  In the case of the detained mental patient, he will be detained principally for his own health, well-being and protection in a hospital staffed mainly by clinicians, nurses and hospital assistants.  If the requirement to investigate suicide in the former case is more stringent than in the latter, it arises because of the difference in the circumstances of the detention of the two individuals, which is reflected principally in the actual place and in the nature of the place in which they are detained.  It does not arise from the fact that one does, and the other does not, suffer from a disability.  So the more stringent obligation would continue to apply in the case of a prisoner detained, by reason of a psychiatric condition or physical disability, in the hospital wing of a prison.  The reason why the more stringent obligation would continue to apply in those circumstances is because he was and remained a prisoner.  There would be no difference in the obligation of the State to investigate his death by comparison with that of a prisoner of sound mind and body who was not in the hospital wing. 

The claimant himself does not suffer from any disability.   Article 14 is irrelevant so far as his rights are concerned.  

My view is very different. Let us assume, as the court asserts, that the difference in treatment between the prisoner of sound mind and the mental health patient arises from the circumstances in which each person is detained. This does not change the fact that the different regimes of detention are, ultimately and usually, dictated by whether the person to be detained has mental health issues: the vast majority of mental health patients are detained in mental health hospitals, because of their mental illness, because of their disability.

Article 14 is therefore very relevant for the rights of the claimant, even though the claimant did not have a disability (you don’t necessarily suffer from disability, but I guess I’m being pedantic). Let us assume that the claimant will take his case to the ECtHR. In the case of an Article 2 application, when the victim has died (direct victim), family and close relatives are treated as indirect victims, who can bring the application on behalf of the direct victim. (See the admissibility decision in Velikova v Bulgaria available here). Of course, in Antoniou the claimant was  divorced from his wife and this might just make his chances of locus standi more difficult.

But let’s cut to the chase: Under European Human Rights law, nothing bars a claimant, as indirect victim without disability to bring a discrimination claim, under Art 14 read together with Art 2, on behalf of a deceased direct victim with disability with regards to the investigation in the circumstances of her death.

How best to translate this claim under English law? If we must accept that the dead cannot be discriminated against under English law, then it is the claimant in Antoniou who is discriminated against by association to the deceased person with disability: he does not enjoy equal protection as indirect victim, by the fact that the indirect victims of non-disabled deaths in custody receive an unjustified differential treatment in how their deaths are investigated.

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