The Health and Care Brief – Inquests: Hoarding and Local Authorities

The Article 2 duty

An inquest is a fact-finding inquisitorial process and is not about civil liability, criminal liability, blame, guilt or innocence. Coroners are commissioned to fact find and to reach a conclusion as to who died, when they died, where they died and how they died. In the majority of inquests which do not trigger the enhanced Article 2 duty, the “how” question is answered in terms of “by what means” someone came by their death. However, in the limited number of cases where it is determined that the enhanced Article 2 duty is owed, the Coroner conducts a wider investigation into the death, in the sense that the “how” question is expanded to include “in what circumstances” the person came by their death.

In an inquest setting, Article 2 has relevance when considering the involvement of public bodies/public authorities. In essence, it is the State’s enhanced obligation to take appropriate steps to safeguard the lives of citizens. From a practical perspective, an inquest labelled Article 2 allows the Coroner to investigate more broadly and to reach a conclusion which is not only broader in scope but also potentially more judgmental when assessing the core factual issues and the role of those public agencies that interacted with the deceased individual prior to their death. It is therefore an issue that will be considered at an inquest where a public body is involved, for instance a Local Authority, NHS Health Trust, Fire and Rescue Service and Police Force, amongst others.

The facts of Parkin

This tragic inquest involved a 78-year-old lady who had died at her home from smoke inhalation. It was likely that her sofa had caught fire due to a discarded cigarette. The Deceased, Mrs Wolff, was a hoarder. Her home was reported to be unhygienic, and the evidence suggested that it was filled with both debris and detritus. She was noted to have lived alone.

The evidence revealed that Mrs Wolff had agreed prior to her tragic death, and after some persuasion, to accept a care package which was aimed at supporting her in maintaining personal hygiene and monitoring other medical conditions. A referral had also been made to the London Fire Brigade (LFB) who would conduct home safety visits. Mrs Wolff did subsequently agree to have smoke detectors fitted in her property.

Mrs Wolff was however reported to be generally reluctant to engage with Local Authority social services and with other agencies. She was assessed as having capacity to make decisions regarding her wellbeing.

Was Article 2 engaged in this case?

Following her tragic death, Mrs Wolff’s family submitted to the Coroner presiding over her inquest that Article 2 should be engaged on the basis that Mrs Wolff had been let down by the public authorities who had been charged with assisting her in the period prior to her death.

In short, the Coroner disagreed with the submissions of Mrs Wolff’s family and ruled that Article 2 was not engaged. This was on the basis that individuals are free to live their lives without restraint or interference from the State and the fact that public authorities may have interacted with a citizen does not thereby determine itself the engagement of Article 2. The evidence in this case was that Mrs Wolff resided in her own home and had declined additional intervention by the State. She was deemed to have capacity to take her own decisions and was entitled to exercise her own free will and choice. It did not matter that her decisions may be deemed by ordinary persons to be unwise ones, in terms of her hoarding and the general tidiness of her property.

The family appealed by way of judicial review to the High Court and the case came before Mrs Justice Collins-Rice. The Judge was mindful that the test for engagement of Article 2 in an inquest setting was whether it was arguable that a public authority was in breach of a substantive duty under Article 2. Whether there was an arguable breach of a substantive duty was dependent upon whether a relevant duty existed in the first place. In Mrs Wolff’s case, the duty in question was whether there was a real and immediate risk to life which the relevant authorities were or ought to have been aware of and a failure on their part to take steps to deal with such a risk.

In assessing whether such a duty was owed, the Judge considered the Supreme Court decision of Rabone v Pennine Care NHS Trust [2012] 2 AC 72. In Rabone, the Supreme Court made clear that the existence of a “real and immediate risk” to life is a necessary but not sufficient condition for the existence of an Article 2 duty. The relevant criteria (or “indicia”) for such a duty arising are as follows:

1. An assumption of responsibility, which includes but is not limited to, the exercise of control.
2. The vulnerability of the victim.
3. The nature of the risk; was this an ordinary risk of the kind that individuals in the relevant category should reasonably be expected to take?

The Judge was also mindful that such a duty must be interpreted in a way which does not impose an impossible or disproportionate burden on public authorities.

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Why Article 2 was not deemed to be engaged in this case

The Judge found on the evidence that Mrs Wolff lived a more than usual risky lifestyle in the sense that she was a hoarder, had poor smoking habits and was known to discard cigarettes around her property. This placed her at a greater risk of experiencing a fire than the ordinary citizen. There was therefore a risk of a house fire occurring within Mrs Wolff’s home which could prove fatal.

However, Mrs Wolff did not lack capacity to make her own decisions regarding her living arrangements and lifestyle. She would have been aware of the risks and had capacity to take her own decisions regarding how she lived her life. Whilst her decisions in terms of how she lived her life may have been considered unwise by many, she was entitled as a capacitous individual to make her own choices. In addition, the risk in question (fire as a result of the discarding of cigarettes) was an ordinary one. The responsibility for dealing with such risks, the Court ruled, rested with individuals, as opposed to the State itself. In light of this, no Article 2 duty was deemed to be owed.

What is the significance of this decision?

Whenever public bodies, such as Local Authorities, are involved in inquests, consideration will always be given as to whether or not Article 2 is engaged. The decision in Parkin highlights that it is ordinarily a high threshold for Article 2 to be engaged and that more is required than public authorities merely offering services to a person which might assist in ameliorating a known risk of death.

If you would like further advice or guidance on inquests or any of the issues highlighted in this article, please do get in touch with James Donnelly.