Article 2 and vulnerable people in the community

The case of Parkin -v- HM Assistant Coroner for Inner London (East) was published last week.

The family has lost their judicial review of the decision of a coroner that Article 2 did not apply to their relative, who was a vulnerable, high risk person in the community, and who had input from multiple state agencies.

Key takeaways:

1. A “real and immediate risk” combined with “vulnerability” is not enough to engage Article 2
    
2. A person in the community, with known risks, who is being supported by health and social care services, does not automatically mean Article 2 is engaged
    
3. The crux is still the Rabone criteria
    
4. The test remains, essentially:
    
   1. Duty - Has the state assumed responsibility for P (ie is the state exercising control over her)?  And/or, is there sufficient vulnerability?
       
   2. Duty - Is there a real and immediate risk to life that the state did or ought to have known about?
       
   3. Scope of duty - If the state has assumed a degree of responsibility, what is the nature of the risks for which it has assumed responsibility?
       
   4. Breach – reasonably, should the state have done more to ameliorate that risk?
       
   5. Causation – has to relate to the failures above
       
5. Article 2 remains complex and fact specific – but a hallmark remains whether the state has defacto assumed responsibility for the relevant risks.

Factual background

Mrs Wolfe (the deceased) was a vulnerable adult under the care of multiple state agencies. She was a hoarder.  She smoked.  She had poorly controlled diabetes.  Her lifestyle was one which featured “socially atypical risk-taking behaviours.”

However, she had been assessed on multiple occasions as having capacity to make relevant decisions about her life, care, and treatment.

She had been warned as to the risk of hoarding, and the fire risk from smoking, many times.  

She was very reluctant to engage with services, but a limited plan had been put in place and she had previously agreed to having fire alarms installed by the fire service.

The Judgment

The judge has confirmed that the mere existence of staff in public authorities owing professional duties to P (eg by drawing up a welfare plan) does not come close to establishing a positive operational duty.

Helping or supporting an individual, even in the discharge of legal duties, does not routinely give risk to the operational duty.

If P is sufficiently vulnerable, then the operational duty may be engaged – but the key question is that of “sufficient” vulnerability.

There is no general duty on the state to protect an individual from deliberate self harm, even if there is a real and immediate risk of death. The autonomy of properly autonomous individuals must be respected.  The crux will be the question of a “properly autonomous individual.” Inquest practitioners may therefore wish to become more familiar with the provisions of the Mental Capacity Act and how capacity is assessed.

The nature of the risk is relevant. If it is an “ordinary” risk, then the state’s duty is unlikely to be engaged.  If the risk is “exceptional,” then the duty may be engaged.  In the case of Mrs Wolfe, the risk of house fire was assessed as one that anyone could encounter. 

Even if the state organisations are considered to have a duty to P, the next question is the scope of that duty.  The question is what it is reasonable for the state to be responsible for – and this includes taking into account operational choices including resource choices, the ease or difficulty of taking precautions and the respect due by public authorities to the personal autonomy of the deceased.  In other words, what is actually, practically possible?

As with any case where it is argued Article 2 is engaged on the operational basis, even if it is established that the state had a duty to P, and that duty has been breached, Article 2 is only engaged if it is arguable that those breaches were causative.

Analysis

This judgment continues to re-affirm the law on Article 2.

It is likely to come as a relief to agencies who support service users in the community, as it reiterates that the mere ongoing involvement of state agencies with a vulnerable person is not enough to engage Article 2.

Each case will, as always, have to be treated on its own facts.  But as a theme, the following would seem to make the application of Article 2 more likely:

• A greater degree of control
• An exceptional degree of vulnerability
• Exceptional risks, that are above “normal” risks
• The state having greater involvement in mitigating those risks
• It being those risks identified that caused the death

Next steps

Our team of expert inquest lawyers regularly advise clients on the application of Article 2 and make legal arguments for clients on the same. This includes pragmatic, client centred advice as to the merits of making these arguments.

Please do not hesitate to get in contact if you would like to discuss this further with anyone in our team.