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Should non-causative failings by the state be included in the record of inquest?

In R (Tainton) v H.M. Coroner for Preston and West Lancashire (2016) 4 WLR 157 the court ruled that admitted failings in a prisoner's medical care should be recorded as part of the Record of Inquest (R.O.I.), even though they were found not to be causative of the prisoner's death.

In the recent case of R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin) the court appears to have reached a different conclusion. How can these apparently contrary decisions be reconciled?

Brief Facts

Leah Smith ('the deceased') was found to have hanged herself on 28 April 2017. In the weeks prior to her death, she had been under the care of Betsi Cadwaladr University Hospital Health Board ('the Health Board'). In a serious incident report prepared by the Health Board, it identified several care delivery problems with the mental health team. Essentially the faults were identified as "inadequate cover" for psychiatric patients treated at home.

At a pre-inquest review, the Coroner decided that Article 2 of the ECHR was engaged. This meant that the inquest was an "enhanced" enquiry where the Coroner had to determine not just "by what means" Ms. Smith had come by her death but also "in what circumstances" she had died. (R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182). As part of the investigation the Coroner had obtained an independent report from a consultant forensic psychiatrist. The report was highly critical of the care provided to the deceased, including the medication she had been prescribed and the lack of face to face psychiatric assessment. The expert concluded that, with appropriate treatment, it was probable that the deceased's death would have been avoided, and this opinion was actually accepted by the Health Board, although was disputed by the treating clinicians at the inquest.

However, the expert stuck to his guns and the Coroner ultimately, whilst concluding that the admitted failings did not cause the death, nevertheless made critical findings against the Health Board in her reasoning.

Consequently, it must have been something of a surprise to the deceased's family when just the following was recorded in the ROI:

Box 3: "On 28/4/17 the deceased was found hanging by the neck from a bannister at her home address. She was taken to hospital where she was placed on life support. Tests revealed no brain activity was evident and she sadly passed away on 2/5/17. The deceased had a short history of mental health issues with an attempted overdose a week prior to her death. She was receiving antipsychotic medication and was under the care of the Mental Health Services at the time of her death."

Box 4: "The deceased hung herself with a ligature on 28/4/17. This act caused her death. At the time she took this action it is likely that she was suffering from an episode of psychosis of unknown origin."

There was no mention whatsoever of the admitted failings. The family sought judicial review on a number of points. I am dealing here only with the issue of why the Coroner did not follow Tainton and include the admitted failings in the R.O.I. It's worth remembering that it was thought necessary in the Tainton case, to record the failings in order to comply with the investigative procedural obligation imposed by Article 2.

The High Court held that the Coroner was not obliged to include her criticisms in the R.O.I. They pointed to the fact that it was necessary that the R.O.I. be a simple and brief statement, even in Article 2 cases and it was important in accordance with Section 10(2) of the Coroners and Justice Act that the conclusion must not appear to determine civil liability. (Since proving causation is essential to a finding of civil liability and the failings had been acknowledged as non-causative this was something of a strange reason proffered by the High Court).

My comment

On the surface the Smith case seems to fly in the face of the previously decided case of Tainton. There is a difference however in that Smith was an Article 2 inquest without a jury unlike Tainton where a jury was involved in the conclusion. Why a difference? Well the logic seems to be that in Smith, whilst the critical findings did not appear in the R.O.I. they were apparent in the public record as part of the Coroner's reasoning, (which the court appears to have concluded meant it was "Middleton and therefore Article 2 compliant). Where a jury sits, the jury's reasoning is not recorded on the public record so if their view on non-causative failings is to be recorded at all it has to be in the R.O.I.

Quite what the Smith family, and their legal team made of this somewhat esoteric distinction (having also been told by the High Court that their complaint was one of "form over substance") one can only guess as this too (perhaps fortunately) is not recorded. However, I suspect it's a fair bet they might well have found themselves agreeing with Mr. Bumble's* view of the law. *Oliver Twist by Charles Dickens.

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