England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon Mr Justice Elias

[2004] EWHC 2922 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/11/2005

Sir Anthony Clarke, MR:

Introduction

1. This is the judgment of the court on an appeal, brought with the permission of the judge, from an order made by Elias J on 16 December 2004. By that order he dismissed an application for judicial review of two decisions made by the first respondent, the Coroner for Inner North London ("the coroner"), who has both legal and medical qualifications. The decisions were made in the course of an inquest which took place on 3 and 4 March 2004 into the death of Mr Pavlos Takoushis, who was a man of 64 years of age whose body was found in the River Thames on 14 February 2003. The application was made by his widow, Mrs Helen Takoushis. The second respondent, the Guys and St Thomas' NHS Trust, took part as an interested party. We will call the second respondent "the trust". References below to "the hospital" are references to St Thomas' Hospital. The coroner put evidence before the judge but was not represented before him. He has been represented before us by Mr Clive Lewis. The trust was represented before the judge and before us by Mr Iain Daniels. The Metropolitan Police was an interested party before the judge but, although counsel was present during the hearing of the appeal, he played no significant part in it.
2. In the course of the inquest Ms Ruth Brander made two applications to the coroner on behalf of the family which were refused. Those refusals formed the basis of the application for judicial review to the judge. The first was an application based upon section 8(3)(d) of the Coroners Act 1988 ("the 1988 Act") that the inquest should be before a jury and the second was an application that the inquest should be adjourned in order to enable the family of the deceased to take expert advice with a view to the opinion of an expert being put in evidence. In this appeal the appellant submits that both those decisions were wrong in law and that the judge should have so held.
3. It is fair to say that the argument in this appeal has ranged over wider ground than that before the judge. Before the judge it was assumed that article 2 of the European Convention on Human Rights ("the ECHR") was engaged, whereas before us the coroner, who was not represented before the judge, submitted that that assumption is wrong. In these circumstances the argument on the appeal fell into two broad parts. The first addressed the question whether the refusals complained of were justified on the assumption that article 2 was not engaged and the second addressed the question whether article 2 was engaged. We propose to approach the matter in the same way.

The facts

4. The facts are not for the most part in dispute and, to a considerable extent, can be taken from the clear exposition of them in the judge's judgment. The deceased, Pavlos Takoushis, was the husband of the claimant. He was a long-term schizophrenic who had been treated periodically in psychiatric hospitals, both voluntarily and involuntarily, since he was first diagnosed with the illness in 1974. On 9 January 2003 he was admitted to Chase Farm Hospital as a voluntary psychiatric patient. At about 1115 on 13 January he obtained permission to leave the ward to visit the day hospital within the hospital grounds. He did not return. The ward manager became concerned because he had left without a jacket, which was an odd thing to do, given that it was cold outside.
5. He was next seen at about midday apparently preparing to jump off Tower Bridge. He had his legs over the parapet of the bridge and he was being pulled back from the edge by an American tourist. This was witnessed by a member of the public who was passing, Mr Jeff Wilcox. Mr Wilcox was concerned by Mr Takoushis' behaviour and decided to follow him. He spoke to Mr Takoushis and asked him if he was OK. He was told to go away. After Mr Takoushis had made several more approaches towards the river edge, Mr Wilcox decided to call the emergency services.
6. Police arrived, followed by an ambulance crew. Mr Wilcox told the officers what he had seen. PC Prole spoke to Mr Takoushis and suggested that he go to hospital. Mr Takoushis agreed. PC Prole stated in his evidence at the inquest that he was concerned about Mr Takoushis' safety at that point and said that, if Mr Takoushis had not agreed to go to the hospital voluntarily, he would have considered using his powers to detain him and remove him to a designated place of safety under section 136 of the Mental Health Act 1983. In the event it was not necessary to do so.
7. Mr Takoushis informed one of the other officers present that he was taking a drug for his illness. (He apparently said that it was "Promazone" but presumably meant Promazine, a low-potency anti-psychotic medication.) He did not, however, mention that he was currently an in-patient at the Chase Farm Hospital.
8. Mr Takoushis was then taken by ambulance to St Thomas' Hospital Accident and Emergency Department. The information regarding Mr Takoushis' medication was not passed on to the ambulance crew. He was described by a member of the ambulance crew, Mr Michael Smith, as being calm, alert and orientated but he refused to allow his blood pressure to be taken. He told Mr Smith that he was intending to jump into the river because he had had an altercation that morning with his wife, during which she had accused him of having an affair and told him to throw himself in the river. He denied having tried to commit suicide in the past and, when asked, denied that he would try again in the future because he saw no point.
9. It should be noted that there was other evidence that Mrs Takoushis had not spoken to her husband that morning and (as stated in Paragraph 30 below) the coroner was satisfied that what Mr Takoushis said about being told to jump into the river by his wife was a delusion.
10. Mr Takoushis arrived at St Thomas' A&E at about 1300. The ambulance staff explained to Staff Nurse Blake, who was the triage nurse on duty at that time, that Mr Takoushis had been found trying to jump off Tower Bridge. Nurse Blake took Mr Takoushis to a cubicle used for patients with potential mental health problems.
11. The trust had a system in place for assessing the needs of patients who present themselves at the A&E department. This was based on a document called Emergency Triage which was produced by the Manchester Triage Group. It involves the clinical prioritisation of patients including those with mental health problems and includes a flowchart, which identifies five categories of priority with differing target times for the patient to be seen. The times vary from immediate to 240 minutes. Category two provides for the patient to be seen by a doctor or appropriate person within 10 minutes. This is the most urgent category possible for a patient, including a psychiatric patient, unless he or she has in addition sustained life-threatening physical trauma, requiring, for example, immediate resuscitation.
12. There were two sources of evidence from Nurse Blake. The first was the hospital form which was partially completed by her and the second was her oral evidence. She did not make a written statement or, if she did, it was not put in evidence and we have not seen a copy. The contemporary notes show that Mr Takoushis was registered at 1302 and that he had been "attempting suicide". The time of triage was noted by Nurse Blake as 1311, although it could possibly be 1315. Against "flow chart" she wrote "mental illness", and specified the category as 2. Nurse Blake also recorded that Mr Takoushis was at "high risk of self harm".
13. Nurse Blake took Mr Takoushis' temperature at 1315 and his blood pressure and the like shortly thereafter. Her evidence was that she was with him until about 1330, when she wrote up the notes in which she summarised the position thus:

"Brought in by LAS. Summoned by Police. Patient seen standing on Tower Bridge intending to jump. Police involved with negotiation for 45 mins. O/A patient very calm, complained of slight frontal headache. Says he went to bridge to do "silly thing". Says has been having problem with his wife, who is accusing him of having affairs. Good eye contact. Limited English."

14. Nurse Blake then contacted the psychiatric liaison nurse ("the PLN") because at 1330 she noted: "PLN aware. Will need to be seen by A&E Drs first". The conclusion that the patient would have to be seen by a doctor before being seen by the PLN was in accordance with the protocol then in place. At about 1335 Nurse Blake handed over to a colleague, Staff Nurse Brown, and played no further part in Mr Takoushis' case.
15. There was no evidence from Nurse Brown but it appears that Mr Takoushis was then left alone in his cubicle until 1355, when he was offered an analgesic, which he refused. At 1400 a Dr Fritz attended to see Mr Takoushis but he was nowhere to be found. Unfortunately this was almost an hour after the patient's arrival and well beyond the 10 minutes envisaged by the system. It was we think accepted in the course of the argument that the 10 minutes started at the latest at 1330. Dr Fritz was not called to give evidence at the inquest.
16. Just before 1500, an office worker at St Katherine's Way called Anne Matthews saw a man jump into the Thames at St Katherine's Dock. Her description of the man fitted that of Mr Takoushis. His body was recovered from the River Thames at Wapping some five weeks later, on 14 February.

The inquest

17. On the above facts there was reason to suspect that Mr Takoushis "died a violent or unnatural death" so that the coroner was bound to hold an inquest by reason of section 8(1)(a) of the 1988 Act. The coroner formally opened and adjourned the inquest on 24 February 2003. The circumstances were investigated by the coroner's officer and a number of documents were produced by the hospital, including the notes quoted above, an undated and unsigned hospital internal report on the case ('the internal report') and a medical report dated April 2003, which was signed by Dr Niall O'Connor, the Consultant in Emergency Medicine at the hospital. Dr O'Connor gave evidence at the inquest. So far as we are aware, he did not make any further statement for the purposes of the inquest. His report was simply an account of the facts, which was based upon what he read and what he was told because he had no personal involvement in the events of 13 January. That account was entirely consistent with that set out above.
18. Both solicitors for the family and Mr Takoushis' son, Mr Andrew Takoushis, wrote to the coroner in the period before the inquest. On a number of occasions they asked for the inquest to be held with a jury. They relied upon section 8(3), or alternatively 8(4), of the 1988 Act, which provide:

"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect -

(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public,

he shall proceed to summon a jury in the manner required by subsection (2) above.

(4) If it appears to the coroner, [before he proceeds to hold an inquest … ] or in the course of an inquest without a jury, that there is any reason for summoning a jury, he may proceed to summon a jury in the manner required by subsection (2) above."

19. The thrust of the case for a jury as set out in the correspondence was that Mr Takoushis' experiences throughout 13 January were not unique and that further deaths might occur in similar circumstances. It was initially said that there appeared to be what Mr Takoushis' son described as "lack of care" on the part of Chase Farm Hospital, the London Ambulance Service, the police and the hospital. However, the focus of the inquest and, in particular, the focus of the judicial review proceedings were on the hospital and this appeal is only concerned with the nature of the inquest with respect to the events at the hospital. Mr Takoushis' son first asked for a jury in a letter dated 29 July 2003.
20. On 3 September 2003 the appellant's solicitors wrote to the coroner reiterating the request for a jury and asserting that the hospital's failure to have adequate procedures was a breach of Article 2 of the ECHR. On 9 September the coroner wrote to say that he was not satisfied that the circumstances fell within section 8(3)(d) but that he would keep the matter under review. On 18 December he wrote saying that he would not be holding a jury inquest. On 3 February 2004 the solicitors wrote asking for documentation and saying that when they had it they might well decide that it would be appropriate to instruct an expert in Accident and Emergency. They also maintained both their request for a jury and their reliance upon Article 2 and invited the coroner to hold an oral interlocutory hearing.
21. On 19 February the coroner's officer sent the solicitors a witness list. It included evidence from Chase Farm Hospital, Mr Wilcox, the police, the ambulance service, the hospital, Mrs Matthews and the person who found the body. As to the hospital, the only witness on the list was Dr O'Connor, although it is right to say that some days earlier, on 11 February, the coroner's officer had spoken to someone at the hospital. The notes of that conversation suggest that it was contemplated that the triage nurse would give evidence and that the patient's notes would be brought to the inquest.
22. On 19 February the solicitors wrote on similar lines to their earlier letters. They referred in particular to the obligation to investigate in Article 2 and said that they intended to obtain expert evidence. On 25 February and 1 March the solicitors sent chasing letters and on 1 March the coroner replied saying that he was not satisfied that this was a case for a jury or that Article 2 was engaged and that it would not be appropriate to adjourn the inquest, which had been fixed since December 2003, in order to await a response from the Legal Services Commission. The coroner added this:

"[The internal report] concedes that the initial triage category did not match subsequent action. I am not satisfied that this amounts to "systemic neglect"."

That was the first of a number of occasions in which the coroner expressed the view that he was not persuaded that there was any defect in the system operated by the hospital.

23. In the event the adjourned hearing of the inquest took place on 3 and 4 March. At the outset Ms Brander applied for an adjournment on behalf of the family. She made both written and oral submissions in support of the argument that an adjournment was necessary in order to enable a jury to be summoned and to enable an expert to be instructed and the family to play a full part in the inquest. An important part of her submission was that the coroner should enquire into the system employed by the hospital for dealing with members of the public identified as being at high risk of suicide or self-harm. She noted that, although Mr Andrew Takoushis had been informed of the date of the inquest, the solicitors were not informed of the date until 24 February and, in the light of the correspondence, had thought that they would be informed of the date by or on behalf of the coroner.
24. Quite apart from her reliance upon Article 2 of the ECHR, Ms Brander submitted in short that there was reason to suspect that the death occurred in circumstances "the possible recurrence of which is prejudicial to the health or safety of the public" within the meaning of section 8(3)(d) of the 1988 Act, so that a jury should be summoned, and that in order to investigate the system at the hospital and to see whether there was systemic neglect it was necessary for the family to instruct an expert.
25. As we read the transcript of the rulings of the coroner, he accepted that the question whether there was systemic neglect was or would be a relevant matter for investigation at the inquest but he concluded that there was no defect in the system and that there was no necessity for a jury or expert evidence. After considering Ms Brander's submissions, he said (among other things) that he was satisfied that there were triage procedures and a method of assessment of the patient. He added:

"But in documentation that has been disclosed it will be accepted that there was a delay between the initial assessment and then the intended subsequent assessment by a psychiatric liaison nurse and junior A&E doctor, during which time the deceased absconded. On the evidence available before the inquest, I am and remain satisfied that the State's obligation in relation to Mr Takoushis at the A&E Department at St Thomas' Hospital had been discharged by virtue of the fact that there were triage and assessment procedures. As a matter of fact I will be determining what happened when he absconded initially from the Chase Farm Hospital on the 13^th January 2003, and I will be establishing as of fact timings in relation to his assessment and absconding from the A & E Department at the St Thomas' Hospital. The fact that there was a delay has not, in my opinion, meant that there were systemic failings. Factually, I find that there was a narrow issue that will be explored in relation to the timings of the initial assessment and the timing of him absconding. This may or may not be an error, but it does not necessarily imply a systemic failing. I'm therefore satisfied that the circumstances do not require me to proceed with a jury, but nevertheless, having summoned a lot of witnesses to come to give direct oral evidence today, if it is decided elsewhere that Article 2 is engaged then this inquest, even though I'm proceeding without a jury will discharge the State obligation into investigating the full circumstances of Mr Takoushis's death. If, after hearing the evidence, I am satisfied that I should make a Rule 43 recommendation or report, then I will do so, but that possibility is ancillary to the inquest the scope of which is to determine who Mr Takoushis was, how, when and where Mr Takoushis died and the registration particulars. I'm not here to deal with any issue of criminal liability by a named person, or civil liability."

26. Ms Brander made some further submissions to the coroner which were directed to much the same end and the coroner said this:

"It's my view that the circumstances boil down to a delay, a delay between the assessment or the initial assessment and then a formal assessment by a psychiatric liaison nurse and a junior doctor and then what would have followed from that. That kind of error, if it is an error, is something which can occur as an individual or a specific episode. I don't regard them as circumstances broad or general circumstances, systemic circumstances that are likely to continue or recur and that's why I don't feel that this is a case where I am persuaded under Section 8(3)(d) to proceed with a jury."

Ms Brander then reminded the coroner that it was noted in the hospital's internal inquiry that what had happened was something that happened on a regular basis and the coroner said this:

"I note that and that kind of comment is obviously a hostage to fortune. I can say that I am aware from previous experience that there is a difficulty about how to deal with a voluntary patient who attends then absconds before being assessed, not only in the psychiatric setting, but in a general medical or general surgical setting."

27. Finally, after yet further submissions by Ms Brander, in which she asked the coroner in effect to elaborate on his reasons for saying that there was no systemic delay, the coroner said:

"Well subject to hearing direct oral evidence on the issue. Although it is accepted that the difference between the triage category and subsequent action maybe the cause of some comment. In retrospect it may have prevented Mr Takoushis absconding, but in terms of any lack of attention and whether or not such a lack of attention was gross and directly causative. The grossness has got to be judged in terms of when such act or omission occurred and not simply judged retrospectively, I'm satisfied that in terms of systems, there were systems there designed to prevent or designed to promote the rapid assessment of a patient and to assess and determine, not only medical, or surgical, but psychiatric risks and therefore I'm not satisfied that there is a systemic failing by the Trust per se, but it appears that there was an operational failing at that particular time."

28. Having refused the applications, the coroner proceeded with the inquest. He heard a considerable amount of evidence, but only Nurse Blake and Dr O'Connor from the hospital. He heard no expert evidence, although Dr O'Connor gave evidence about the system at the hospital. At the end of the evidence a number of submissions were made to the coroner, including submissions by Ms Brander that there had been systemic neglect on the part of the hospital. She invited the coroner to consider a verdict of suicide contributed to by neglect. Having heard those submissions the coroner adjourned the inquest until the next morning 4 March.
29. It is we think clear that the coroner reconsidered the question whether a jury should be summoned in the light of the evidence he had heard and concluded that it should not. As we read his reasons, which he gave on the morning of 4 March, they were twofold. The first was that there was no systemic neglect and the second was that there had been changes in the system since the death of Mr Takoushis. As to the first he said this in a passage quoted by the judge:

"From this Court's experience of the practice, protocols and procedure of A&E Departments in acute NHS Trusts within this jurisdiction… I was satisfied that action has been taken by NHS bodies generally to recognise the risk of psychiatric patients in an A&E setting… I was therefore satisfied that St Thomas' Hospital had already taken action and that there was a reasonable system for voluntary psychiatric patients who appear to be at risk of self-harm but on their symptoms and denial of intent not at immediate risk of self harm. Despite these symptoms these patients do abscond and despite reasonable systems to assess them and treat them and prevent them from absconding. Unfortunately absconding in those circumstances is the nature of their disease and in the circumstances there was no reason to suspect that the circumstances were prejudicial to public health."

As to the second, he said this in a passage also quoted by the judge:

"It was not the intention of Parliament or the Department of Health to render clinical improvements to patient care as a cause to subject previous reasonable systems to scrutiny in the courts. Deaths occur sadly even where there are reasonable systems."

30. The coroner then set out his conclusions of fact in some detail. Those conclusions included the events at the hospital. They also included the finding that what Mr Takoushis told Mr Smith as to the altercation with his wife (referred to above) was based on his "delusional belief system" and part of the symptoms of his underlying condition. As to Mr Takoushis' intentions the coroner said:

"I'm satisfied that when he was assessed by the staff at the A&E department at St Thomas' he was given a category 2 stage triage on the basis of his previous contemplation of suicide and risk. I'm satisfied that he remained cooperative calm and not distress[ed] and therefore wasn't at immediate risk of absconding and committing suicide. I'm satisfied that on the evidence it was reasonable to expect him to remain for at least 10 minutes to be assessed by the psychiatric nurse and therefore for the psychiatric liaison nurse and the staff at St Thomas' to hopefully identify and trace him back to Chase Farm and arrange for his transfer back there. Unfortunately the ideal time was not followed."

The coroner said that Mr Takoushis was seen by Mrs Matthews at St Katherine's Dock 55 minutes after he left the hospital and held that it was in that 55 minutes that he had changed from contemplating suicide to making deliberate plans to do so and that he committed suicide. He added that there was insufficient evidence for him to be able to say that he did so while the balance of his mind was disturbed.

Before the judge

31. Before the judge the application for judicial review was of the coroner's refusal to adjourn the inquest in order to summon a jury and/or to enable the family to take expert advice with a view to putting expert evidence before the inquest. There was no challenge to the verdict of suicide. Very shortly before the hearing of this appeal an application was made for permission to appeal on the basis that the coroner should have held that Mr Takoushis committed suicide while the balance of his mind was disturbed. We will return to that point below.
32. The judge accepted a submission that, in so far as the coroner based his decision not to summon a jury on the ground that the circumstances here were a one off event he was wrong to do so. The coroner did not expressly base his decision on that ground in the reasons he gave at the inquest but, as the judge observed in paragraph 39 of his judgment, in paragraph 22 of the statement made by the coroner in order to assist the judge hearing the application for judicial review, he said that in the 22 months during which he had been HM Coroner for Inner North London, Mr Takoushis' case was the only case of a voluntary psychiatric patient absconding from an A&E Department and killing himself. On the basis of that experience, he expressed his conclusion thus:

"There is therefore no evidence within this jurisdiction to support the assertion made by Marjorie Wallace, the Chief Executive of SANE… I am not aware of any evidence which would support the assertion that mentally ill individuals are regularly absconding from A&E Departments and committing suicide shortly thereafter."

The claimant had relied upon the fact that the St Thomas' internal inquiry into Mr Takoushis' death recorded that patients attending A&E following an attempted suicide abscond regularly and upon evidence from SANE that a proportion of such patients go on to take their own lives.

33. The judge held that the conclusion in paragraph 22 of the statement was not one which the coroner could properly reach, given (as the judge put it) the volume of evidence which demonstrated that the situation of Mr Takoushis was sadly not atypical. However, the judge held that the coroner was entitled to reach the conclusion that it was not necessary to summon a jury on the basis that the procedures at the hospital were reasonable.
34. On the second point, which the judge considered under the heading of "insufficiency of inquiry", the judge held that the claimant's argument fell with the first ground. The judge expressed his reasons in this way in paragraph 46 of his judgment:

"I can understand the argument that expert evidence should be made available if the system itself is under consideration. There may then be a debate as to what a reasonable system requires and how the system may be improved. In addition there may be evidence, for example, about what is done in other hospitals or even other countries. But once the focus is on the specific error, namely the failure properly to implement the system which meant that Mr Takoushis did not see the doctor in ten minutes, then it is difficult to identify any significant role for an expert of the kind which the claimant wished to call."

35. The claimant's case was put both under article 2 of the ECHR and under English law without reference to the Convention. It was conceded on behalf of the trust that article 2 was engaged on the facts of this case. The judge was willing to decide the application on that assumption. He held that there was no infringement of article 2. In short he held that an inquest is an inquisitorial process and that the family were permitted to play a full part in the inquest. Submissions were made to the coroner on their behalf as to who should be called to give evidence. They were considered by the coroner but he decided that the evidence he called was sufficient. That was a matter within his discretion which could not be said to be wrong in principle.
36. It should be noted that part of the judge's reasoning was based upon the coroner's view that there was no systemic failure on the part of the hospital. Thus he said this:

"51. … He made a decision as to the witnesses to be called which was, in my judgment, well within his discretion, particularly given his preliminary view on the question of systemic failure. The claimant relied upon some observations in Amin to the effect that it is important that culpable and discreditable conduct should come to light and dangerous procedures rectified (per Lord Bingham at para 31). But the Coroner clearly was of the opinion, which I consider that he was entirely justified in forming, that there was no question of such culpable conduct here. …

52 … His decision not to call for more evidence on this issue was in my judgment fully justified, particularly given his view that there was no basis for saying that there had been a defective system in play."

The appeal

37. In this appeal Mr Clive Lewis submitted on behalf of the coroner that article 2 of the ECHR was not engaged. However, Mr Fitzgerald's primary submission was that the reasoning which led to the coroner's decisions under review was flawed whether article 2 was engaged or not.
38. Before going any further we think it may be helpful to clarify what is meant in this context by saying that article 2 is or is not engaged. For reasons which will become apparent later in this judgment we are satisfied that article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents. A common example is where there are grounds for thinking that a death may have been caused by negligence on the part of a member of staff in an NHS hospital. In such cases the question is not whether article 2 imposes any obligation on the state in relation to the investigation of the death, but whether, in order to discharge its obligation under article 2, the state must carry out an appropriate investigation itself (which in this country will normally be done through the medium of the coroner's inquest), or whether it discharges its obligation by establishing a satisfactory system under which the death can be properly investigated by civil, criminal, disciplinary or other procedures, or a combination of all of them. As we understand it, when the parties and the judge spoke in terms of article 2 being engaged what they meant was that the state had an obligation to investigate the death itself through the medium coroner's inquest which therefore had to comply in all respects with the requirements of that article.
39. We consider first Mr Fitzgerald's submissions on the assumption that in this case article 2 was not engaged in the sense we have just described. Put shortly, his submission was that, although the coroner correctly decided that the question whether there was systemic neglect was a proper subject of inquiry at the inquest, he then concluded that there was no such neglect before hearing the evidence and, having called only a limited amount of evidence, reached the same conclusion at the end of the inquest. In these circumstances he submitted that there was no proper or sufficient investigation of the system at the hospital.
40. Having heard submissions on these questions from both Mr Fitzgerald on behalf of Mrs Takoushis and Mr Daniels on behalf of the trust we have reached the clear conclusion that Mr Fitzgerald's submissions in this regard are well founded.
41. It is not in dispute that the system at the hospital was a proper matter for investigation at the inquest. Although the possible verdicts at an inquest under the 1988 Act are circumscribed and, in particular must not ascribe criminal or civil liability, that does not mean that the facts should not be fully investigated: see R v N Humberside Coroner ex p Jamieson [1995] QB 1, per Sir Thomas Bingham MR, giving the judgment of the court at pages 23-26.
42. In R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, Lord Bingham set out a resumé of the position in English law, without reference to the ECHR. He said at paragraph 28:

"28.  Remarkably, as it now seems, the Court of Appeal made no reference to the European Convention in Ex p Jamieson, and the report does not suggest that counsel referred to it either. Counsel for Mrs Middleton criticised the reasoning of that decision, but it appears to the committee to have been an orthodox analysis of the Act and the Rules and an accurate, if uncritical, compilation of judicial authority as it then stood. Thus emphasis was laid on the function of an inquest as a fact-finding inquiry (page 23, conclusion (1)). Following R v Walthamstow Coroner, Ex p Rubenstein (19 February 1982, unreported), R v HM Coroner for Birmingham, Ex p Secretary of State for the Home Department (1990) 155 JP 107 and R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357, the Court of Appeal interpreted "how" in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules narrowly as meaning "by what means" and not "in what broad circumstances" (page 24, conclusion (2)). It was not the function of a coroner or an inquest jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame (page 24, conclusion (3)). Attention was drawn to the potential unfairness if questions of criminal or civil liability were to be determined in proceedings lacking important procedural protections (page 24, conclusion (4)). A verdict could properly incorporate a brief, neutral, factual statement, but should express no judgment or opinion, and it was not for the jury to prepare detailed factual statements (page 24, conclusion (6)). It was acceptable for a jury to find, on appropriate facts, that self-neglect aggravated or contributed to the primary cause of death, but use of the expression "lack of care" was discouraged and a traditional definition of "neglect" was adopted (pages 24-25, conclusions (7), (8) and (9)). Where it was found that the deceased had taken his own life, that was the appropriate verdict, and only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death (pages 25-26, conclusion (11)). Reference to neglect or self-neglect should not be made in a verdict unless there was a clear and direct causal connection between the conduct so described and the cause of death (page 26, conclusion (12)). It was for the coroner alone to make reports with a view to preventing the recurrence of a fatality (page 26, conclusion (13)). Emphasis was laid on the duty of the coroner to conduct a full, fair and fearless investigation, and on his authority as a judicial officer (page 26, conclusion (14))."

43. In that passage Lord Bingham does not explore the relationship between conclusions (2) and (14). Nor, however, does he refer to the decision of this court in R v Inner West London Coroner ex p Dallaglio [1994] 34 All ER 139, to which both he and Simon Brown LJ were parties. In Dallaglio Simon Brown LJ identified a tension between the apparently narrow definition of "how" in section 11(5)(b)(ii) and the wider provisions of section 8(3)(d) of the 1998 Act, which looks to the future, as does rule 43 of the 1984 Rules.
44. Subsections 11(3) and (4) of the 1988 Act provide for the verdict to be certified by an inquisition whether or not there is a jury. Section 11(5) provides, so far as relevant:

"(5) An inquisition –

(b) shall set out, so far as such particulars have been proved –

(i) who the deceased was; and

(ii) how, when and where the deceased came by his death; …"

Rule 36(1) of the Coroners Rules 1984 is to much the same effect. Section 11(5) is to be contrasted with section 8(3)(d) which is quoted above.

45. In Dallaglio (at page 154) Simon Brown LJ approved the statement of Morland J in R v HM Coroner for Western District of East Sussex ex p Homberg (1994) 158 JP 357 at 381 that rule 36 should not be interpreted so as to defeat the purpose of section 8(3)(d) and that if the "proceedings and evidence" are narrowly confined, the answer to the "how" question will not serve the purpose of the section, namely the prevention or reduction of the risk of future injuries in similar circumstances.
46. Simon Brown LJ added that in any section 8(3) case the coroner should have in mind paragraph (14) of the conclusions in Jamieson:

"It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused when deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry."

47. Jamieson was a death in custody case but it is clear from the next part of Simon Brown LJ's judgment that he regarded the same approach as applicable in the context of a case like Dallaglio, where the deaths had of course occurred as a result of the collision between the Marchioness and the Bowbelle on the Thames. He said that it was for the individual coroner to recognise and resolve the tension existing between section 11(5)(b) of the 1998 Act (and rule 36) on the one hand and section 8(3) on the other. The inquiry, he said, was almost bound to stretch more widely than strictly required for the purposes of a verdict, although how much more widely was a matter for the coroner. In Dallaglio Sir Thomas Bingham agreed with Simon Brown LJ's reasoning and at page 164 emphasised again the need for a full, fair and fearless investigation but observed that it was for the coroner to decide, on the facts of a given case, at what point the chain of causation becomes too remote to form a proper part of the investigation.
48. It was no doubt with those principles in mind that the coroner here decided to investigate the events at the hospital. It was recognised on all sides that the circumstances in which Mr Takoushis came to leave the hospital, only shortly after he had apparently taken steps to jump into the river and gone voluntarily to the hospital and only shortly before he in fact jumped into the river and thus took his own life, were by no means too remote from his death so that, in Sir Thomas Bingham's words, they became too remote to form a proper part of the investigation.
49. The question is whether those circumstances were fully investigated in the way contemplated in both Jamieson and Dallaglio. Such an investigation surely involved investigating both what the system at the hospital was and how it operated on the day in question. The coroner recognised that but, in our judgment, did not investigate the system in sufficient detail. He correctly identified the system as the Emergency Triage system described above, namely that it was for the triage nurse to put the patient in a suitable category, which Nurse Blake did when she put him into category 2. However, he did not investigate how the system was to work after that and did not consider, for example, what was to be done and, in particular, what safeguards were in place if, for some reason, the patient could not be seen within the target time. Instead, he concluded before the inquest began that what occurred after the triage decision had been made was a breakdown of the system rather than any defect in the system itself.
50. That he reached such a conclusion before the inquest began is in our view clear both from his letter of 1 March and from his response to Ms Brander's submissions to which we have referred in paragraphs 22 and 25 to 27 above. Thus he concluded in the passage quoted in paragraph 27 that he was not satisfied that there was a systemic failing by the trust but that there appeared to have been an operational failing at that particular time.
51. We do not see how the coroner could properly reach that conclusion without further investigation of what the system was. Viewed before the inquest began and in the light of the information available to the coroner, he could not say why Mr Takoushis was able to leave the hospital. There were essentially three possibilities. The first is that identified by the coroner, namely that the system was a reasonable system but that it was not properly operated on the day in question, the second is that the system was properly operated, but that there was a failure in the system itself, and the third is that there was both a failure in the system itself and in the operation of the system.
52. As stated earlier, before the inquest began the coroner only had information from Nurse Blake, from the notes, from Dr O'Connor and from the internal report. There was no information from Nurse Brown, from the PLN or from Dr Fritz. As a result there was in our opinion no basis upon which the coroner could properly judge that there was no defect in the system itself but only in the operation of the system.
53. If there had been evidence from them, they would have been able to explain why it was that Mr Takoushis was not seen before 1400. No-one suggested that Nurse Blake had not assessed Mr Takoushis sensibly, or indeed correctly, as triage category 2. It is plain that she assessed him as at "high risk of self harm" because he had been reported as "attempting suicide". There is no suggestion that the risk of self harm was other than a risk that he would again attempt suicide. Since there is also no suggestion that he might attempt suicide while waiting to be seen in the hospital, it must follow that there was thought to be a risk that he would first leave the hospital. It also follows that it was important that he be seen in 10 minutes and, since he was not, that any inquiry should ascertain why that was so.
54. If the evidence of the PLN, or more importantly Nurse Brown and Dr Fritz, had been available to the coroner when he wrote to the family or when he responded to the submissions of Ms Brander at the outset of the inquest, he would have been able to make at least a preliminary assessment of why it was that Mr Takoushis was not seen before he left the hospital. It might have emerged that there was some error on their part or on the part of someone else at the hospital or it might have emerged that there was other pressing work which one or more of them had to do before Mr Takoushis could be seen. It might, for example, have emerged that pressure was often so great at the A&E Department that, notwithstanding that the system provided in principle for a person assessed as a category 2 patient to be seen within about 10 minutes, it was not always possible for the system to be operated in that way because of the demands of other patients. In that event the question would have arisen whether the system was satisfactory (or indeed reasonable) or whether other steps should have been taken, and in particular safeguards put in place, in order to improve the system, so as for example to keeping a watch on a patient like Mr Takoushis, who had very recently attempted suicide, by seeking at least to persuade him not to leave the hospital before he could be seen. The question would also have arisen whether safeguards were in place for the future, since, so far as we can see on the evidence, the coroner was not aware of the remedial steps taken by the hospital before the inquest began.
55. Without making an assessment of why Mr Takoushis was not seen and asking those questions, the coroner could not in our opinion properly conclude that the system was not defective and that the problem was simply the way in which the system was operated. In reaching that conclusion the coroner erred in principle. It follows that the basis upon which he rejected the applications that he should adjourn the inquest in order to summon a jury and to give the family time to instruct an expert was flawed. It does not follow that he should have summoned a jury or that he should have called an expert. As we see it, all would have depended upon what was discovered when he had enough information to form a judgment on the questions why the system or its operation might have failed and whether any such failure would have prevented Mr Takoushis from leaving the hospital.
56. It was submitted that the case was not put before the coroner in quite the way described above. There is some force in that submission but the essential basis of the arguments advanced on behalf of the family has throughout been that the inquest should consider whether there was a systemic failure, in the sense of defect in the system being operated at the hospital. The coroner considered those arguments but, for the reasons we have given, rejected them on a flawed basis. In short, the coroner did not carry out a full and fair investigation of the kind which the court said in Dallaglio should be carried out.
57. It is true that the coroner said that he would keep Ms Brander's submissions under review as the inquest progressed and, indeed, that he did so. We have summarised the submissions and rulings at the end of the inquest in paragraphs 28 to 30 above. It is clear from the passages quoted in paragraphs 29 and 30 that he again concluded that there had been no systemic (as opposed to operational) failure at the hospital and that that was an important factor in his rejection of Ms Brander's submissions. That conclusion suffers from the same flaw as his earlier conclusion to the same effect. There was no full and fair investigation of that question because there was no investigation of why Mr Takoushis was not seen by a doctor before 1400.
58. It follows that the decisions made by the coroner both before and at the end of the inquest were flawed and that, for the reasons we have given, we have reached a different conclusion from the judge on this part of the case. The question arises what should be done now. Mr Daniels submitted that, even if the court reached the conclusions set out above, the public interest does not require a fresh inquest. His submission was based in part upon the fact that it is clear that Mr Takoushis committed suicide and in part upon the fact that after the relevant events (and before the inquest) the trust changed its system in order to try to ensure that, so far as reasonably possible, a patient like Mr Takoushis will not be able to leave the hospital in the future before being seen by a doctor or appropriate PLN.
59. There is some force in that submission and it is true that the trust had indeed changed its system before the inquest. However, it is of considerable importance that coroners should carry out full and fair inquests and both the public and the family of the deceased are entitled to expect them to do so. For the reasons we have given the coroner did not do so here. As a result the reason why Mr Takoushis was able to leave the hospital was not investigated as it should have been. In these circumstances, justice requires that an inquest should now take place which does investigate that question.
60. The precise form of the investigation will of course be a matter for the coroner. Whether to summon a jury will be a matter for the coroner, as will the question whether to call any expert evidence which the family seeks to put before the inquest.
61. As to expert evidence, if an interested person wishes a coroner to call expert evidence in any particular case, it is for that person (if at all possible) to identify the witness and put the substance of the evidence which the witness may be able to give before the coroner so that the coroner may be able to decide whether or not it is appropriate. Whether or not it is appropriate here may well depend upon the evidence of fact, which (for the reasons discussed above) has not so far been available, as to why Mr Takoushis was able to leave the hospital before 1400. It may also depend upon precisely what system the hospital now has and the views of any such expert on it.
62. As to the possibility of summoning a jury, it appears to us that whether the coroner should do so will depend upon the circumstances as they are presented to the coroner at the time. In the course of the argument it was submitted by Mr Fitzgerald on behalf of Mrs Takoushis that the coroner should have summoned a jury (and thus any new coroner should do so) on the ground that, viewed as at the time of the relevant events, that is on 13 January 2003, the circumstances were such that their continuance or possible recurrence was prejudicial to the health or safety of the public. By contrast, it was submitted by Mr Lewis and Mr Daniels that the question posed by section 8(3)(d) should be judged as at the time of the inquest, looking forward, and that, as at that time, changes had been such that there was no possibility of a continuation or recurrence which might be prejudicial to the health and safety of the public.
63. It will be recalled that section 8(3)(d) of the 1988 Act provides:

"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect -

(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public,

he shall proceed to summon a jury in the manner required by subsection (2) above."

64. In our opinion section 8(3)(d) is looking to the future as at the time of the inquest. The coroner has a duty to summon a jury under the subsection if it appears to him that the death occurred in circumstances the continuation or possible recurrence of which is prejudicial to the health or safety of the public (our emphasis). Quite apart from the precise language, the purpose of the provision seems to us to be to stop similar risks to the health and safety of the public in the future. If the coroner is satisfied that because of steps taken since the relevant events there is no such risk, we can see no reason why the coroner should summon a jury under section 8(3)(d). He of course retains a broad discretion to summon a jury under section 8(4).
65. That approach seems to us to be consistent with the approach of this court in R v Her Majesty's Coroner at Hammersmith ex p Peach [1980] QB 211. So, for example, Lord Denning said at page 226 that a jury must be summoned:

"when the circumstances are such that similar fatalities may possibly recur in the future, and it is reasonable to expect that some action should be taken to prevent their recurrence."

Bridge LJ said at page 227:

"The key to the nature of that limitation is to be found, I think, in the paragraph's concern with the continuance or possible recurrence of the circumstances in question."

See also, to the like effect per Cairns LJ at page 228.

66. In these circumstances, the coroner will wish to consider all the circumstances of the case in deciding whether to summon a jury when a new inquest is held. It would not be appropriate for this court to prejudge that decision in any way. However, for the reasons we have given we have reached the conclusion that a new inquest should be held.
67. It follows that the verdict of the inquest must be quashed. However, that is not to say that we doubt that a new inquest will decide that Mr Takoushis committed suicide. Indeed, no-one has suggested otherwise although, as we noted in paragraph 31 above, Mrs Takoushis wishes to argue that the coroner should have held that Mr Takoushis committed suicide while the balance of his mind was disturbed. We do not think that it would be right for this court to give permission to appeal on that basis. It raises a question of fact and, in any event, was not raised before the judge. However, the new inquest will be an entirely fresh investigation which will no doubt consider, among many other circumstances, whether it would be right to return such a verdict.
68. For the reasons we have given we would allow the appeal. We should add that, in reaching the above conclusions, we are conscious of the fact that in Middleton,, the House of Lords observed in paragraph 47 that there is force in the criticism made by all parties in that case of the distinction drawn between individual and systemic neglect, since the borderline between them is indistinct and there will often be some overlap between the two: there are some kinds of individual failing which a sound system may be expected to detect and remedy before harm is done. There will, moreover, be individual failings which need to be identified even though an individual is not to be named. On the other hand, the distinction has a clear meaning as applied to the facts of this case. The problem here was that the system was not sufficiently investigated.
69. We allow the appeal on the basis that article 2 of the ECHR was not engaged in the sense we described earlier. However, we turn to consider that question, partly because it was extensively argued before us and partly because it may be a live question before the coroner at the new inquest and it is not entirely satisfactory to leave it undecided, in circumstances where the coroner held that, while article 2 was not engaged, the inquest nevertheless complied with it and where it was assumed before the judge without argument that article 2 was engaged. The point is of some potential importance for the future.

Article 2

70. Article 2 is entitled "Right to life" and provides by article 2.1:

"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law."

71. There has been much discussion in recent years as to the scope of article 2 and of the role played by an inquest in the discharge of the United Kingdom's obligations under it. Given the express terms of the article it is perhaps remarkable how much discussion there has been. However that may be, the focus had been on the first sentence of the article.
72. The jurisprudence in the United Kingdom has perhaps been most clearly developed in the context of deaths occurring in custody, whether in police custody or in prison. The leading cases in our courts are the decisions of the House of Lords in Regina (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653, and the Middleton case to which we referred earlier.
73. Article 2 is sometimes said to comprise both a positive obligation on the state to provide for protection of life and a procedural or adjectival obligation on the state to investigate death. In Middleton Lord Bingham (delivering the opinion of the appellate committee) summarised the position thus in paragraphs 2 and 3 of his speech:

"2.  The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom (App No 45305/99, unreported 4 May 2000), 16-17; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88-90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy (App No 32967/96, unreported, 17 January 2002); Öneryildiz v Turkey (App No 48939/99, unreported, 18 June 2002).

3.  The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom, supra p 17; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (App No 37602/97, unreported, 29 March 2001); Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, supra, para 69; Öneryildiz v Turkey, supra, paras 90-91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002)."

74. In Amin the deceased was murdered by his cellmate, who was convicted of murder. An inquest had been opened but not resumed after the conviction. No public inquiry was held into the circumstances of the death. Hooper J held that there should have been and should be a public inquiry in order to comply with the United Kingdom's obligations under article 2. This court allowed an appeal from his decision but his decision was restored by the House of Lords. The case was concerned with a death in custody but its potential relevance for present purposes is that this was not a case where the deceased was killed by agents of the state but an inquiry was sought in order to investigate how it was that the two men could have been cellmates.
75. In paragraph 20 of his speech Lord Bingham (with whose reasoning the other members of the appellate committee agreed), having set out the principles to be deduced from the Strasbourg jurisprudence with regard to cases where the deceased was or may have been killed by agents of the state, added:

"3)  As it was put in Salman v Turkey (2000) 34 EHRR 425, paragraph 99,

"Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused [footnote omitted]. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies."

Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, paragraph 100; Jordan v United Kingdom (2001) 37 EHRR 52, paragraph 103.

(4)  The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, paragraph 105.

(5)  The essential purpose of the investigation was defined by the Court in Jordan, paragraph 105:

"… to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures …..."

(6) The investigation must be effective in the sense that (Jordan, paragraph 107)

"it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances . . . and to the identification and punishment of those responsible . . . This is not an obligation of result, but of means.

(7)  For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, paragraph 106)

"for the persons responsible for and carrying out the investigation to be independent from those implicated in the events . . . This means not only a lack of hierarchical or institutional connection but also a practical independence . . . ".

(8)  While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, paragraph 121), there must (Jordan, paragraph 109)

"be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case."

(9)  "In all cases", as the Court stipulated in Jordan, paragraph 109:

"the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".

(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, paragraph 143. But it is "indispensable" (Jordan, paragraph 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."

76. Lord Bingham then stressed the importance of the decision of the ECHR in Edwards v United Kingdom (2002) 35 EHRR 487, in which the deceased was also killed by his cellmate, who pleaded guilty to manslaughter on the ground of diminished responsibility, so that there was no contested trial. Lord Bingham said in paragraph 21:

"There was in that case a long and thorough inquiry conducted by independent Queen's Counsel. But the case is important because, although addressing a case in which there had been no killing or alleged killing by state agents and the responsibility of the state (if any) could only rest on its negligent failure to protect the life of Christopher Edwards, a prisoner in its custody, the European Court applied essentially the same principles as in the cases already considered. In my respectful opinion, the Court was fully justified in doing so, for while any deliberate killing by state agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state's main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems."

77. In paragraph 25 Lord Bingham approved the approach of Jackson J in R (Wright) v Secretary of State for Home Affairs [2001] UKHRR 1399, where he had held that there should be a public inquiry into the death of a prisoner who suffered an asthmatic attack in his cell and died. He further held that the family should be represented at the inquiry. There had been an inquest at which the family were present but unrepresented for want of legal aid. He held that, in order to satisfy article 2, the investigation must be independent, effective and reasonably prompt and that there must be a sufficient element of public scrutiny and an involvement of the family to an appropriate extent. Jackson J added:

"Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paras 106-109".

78. The House of Lords stressed the importance of an appropriate investigation in such cases. Lord Bingham observed in paragraph 33 that a properly conducted inquest can discharge the state's investigative obligation under article 2, as established in McCann v United Kingdom 21 EHRR 97. It all depends upon the circumstances.
79. For present purposes there is an important passage in the speech of Lord Steyn, with whom Lord Bingham expressed his agreement. Lord Steyn said at paragraph 50:

"The Court of Appeal plainly thought that in the case of acts by state agents causing death in custody there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. That cases in the former category may be a greater affront to the public conscience than cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan v United Kingdom (2001) 37 EHRR 52 to acts by state agents. The distinction drawn by the Court of Appeal infected its analysis of the Strasbourg decisions. Relying on this distinction the Court of Appeal in effect departed from the requirements as explained in Edwards. Given the crucial public importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence. I prefer the decisions of Jackson J R (Wright) v Secretary of State for the Home Department [2001] UKHRR 1399 and Hooper J in the instant case to the judgment of the Court of Appeal."

The House of Lords said much the same in Middleton: see paragraph 19 of the opinion of the appellate committee, delivered by Lord Bingham.

80. That is an important passage because Mr Fitzgerald submitted that the same is or should be true of persons in state hospitals, that is NHS hospitals. He recognised that a hospital is not the same as a prison or police cell, but he submitted that the same principles would plainly apply to mental patients who are compulsorily detained under the Mental Health Act and that they should apply by analogy in a case like this where, as he submitted, it is likely that, if Mr Takoushis had tried to leave the hospital, it would have sought to detain him either at common law or under an appropriate provision of the Mental Health Act.
81. It is not necessary to say anything further about Middleton, except to note three points. The first is that in paragraphs 30 to 32 the House set out its conclusion that in some, but not all, cases, a strict Jamieson approach would not satisfy article 2. The second is that the House said in paragraph 35 that the only change required in such a case was to interpret "how" as meaning not simply "by what means" but "by what means and in what circumstances". The third is that in paragraphs 36 to 37 the House gave guidance to coroners as to the correct approach in such a case.
82. The question in the instant case is whether such an approach applies in a case of this kind. Mr Lewis submitted that it does not. He submitted that a series of decisions of the European Court show that the court has drawn a distinction between cases of death in custody and death in hospital. He recognised (without conceding it) that the same or similar principles might apply to mental patients who were compulsorily detained but submitted that they do not apply to a case like this where Mr Takoushis was not detained in any way. He relied in particular upon Erikson v Italy, application 37900/97, 26 October 1999, Powell v United Kingdom, application 45305/99 of 4 May 2000, Calvelli v Italy, application 32867/96, 17 January 2002, Sieminska v Poland, application 37602/97, 29 March 2001 and Vo v France (2005) 40 EHRR 12. Mr Lewis also relied in particular upon the recent decision of Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2005] 2 All ER 791.
83. Mr Lewis' submissions may be summarised in this way. He submitted that in the context of medical treatment by the state, the relevant principles to be derived from article 2 are as follows:

i) there is a positive obligation on the state to ensure that there is adequate provision for securing high professional standards and the protection of patients;

ii) errors of judgment or negligence on the part of a health professional or negligent co-ordination amongst health professionals do not constitute a breach of any positive obligation on the part of the state under article 2;

iii) in relation to potential medical negligence, there is a procedural obligation to have in place a system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on their part;

iv) where, the issue is alleged medical negligence, the availability of a civil remedy (in a claim initiated by the next of kin or the deceased's estate) is sufficient to satisfy the state's obligations under article 2;

v) in ordinary cases of medical negligence, there is no additional requirement for an effective, official inquiry, initiated by the state, although the position may be different if there is an allegation of gross negligence amounting to a criminal offence.

84. Much of the debate in the course of the argument centred on the decision and approach of Richards J in Goodson. Mr Lewis invited us to follow it, whereas Mr Fitzgerald invited us to say that it was wrong. Richards J directed himself by reference of paragraphs 2 and 3 of the opinion of the appellate committee in Middleton, which we have quoted in paragraph 72 above. He then observed:

"On that formulation the substantive or positive obligations are (1) not to take life without justification and (2) to establish a framework of laws etc. which will, to the greatest extent reasonably practicable, protect life; and the separate, procedural obligation to investigate arises where it appears that one of those positive obligations has been or may have been violated and that agents of the state are or may be implicated. Thus the existence of the procedural obligation is linked with a breach or possible breach of one of the positive obligations. If taken at face value, that appears to limit very substantially the circumstances in which the investigative obligation will arise. In the case of deaths in hospital, a breach or possible breach of one of the positive obligations is likely to exist in only a small minority of cases."

85. We agree that, if the procedural obligation is linked to the positive obligation in article 2, the investigative obligation would indeed be very limited. While it is true that there are a number of statements which link the two, the European Court does not always do so. This can we think be seen from Powell v United Kingdom, which is one of the cases relied upon by Mr Lewis and referred to by Richards J. It is also one of three medical negligence cases referred to by the House of Lords in support of the principles set out in paragraph 72 above; the others were Sieminska v Poland and Calvelli v Italy.
86. In Powell, as Richards J observed, a young boy had died of Addison's disease which had been suspected but for which he had not received appropriate treatment because the relevant tests had not been carried out. An inquest was refused. There were allegations that medical records had been falsified after the death. Various avenues of complaint were pursued. In a civil action the health authority admitted liability for negligence on the basis of the failure to diagnose and treat Addison's disease, but the allegations relating to post-death misconduct were struck out. The parents complained to the Strasbourg court that inter alia the falsification of records was in breach of article 2 and that they had been provided with no remedy for that breach. The court held that the application was inadmissible because the parents, having settled civil proceedings against the health authority, were not "victims".
87. Richards J said (and we agree) that the court's observations on the obligations under article 2 (at pages 17-18 of the judgment) are of importance:

"The Court observes that the applicants do not in any manner allege or imply that their son was intentionally killed by the doctors responsible for his care and treatment at the material time. They aver, on the other hand, that the responsible doctors knew or can be considered in the circumstances to have known that their son's life was at immediate risk but failed dismally to take the necessary measures to treat him. In the Court's opinion, the reasoning employed by the applicants in support of their argument that the doctors' inadequate response to their son's condition at the time amounted to a breach of the State's duty to protect the right to life cannot be sustained ….

Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …. The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.

In the Court's opinion, the events leading to the tragic death of the applicants' son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny – not least for the benefit of the applicants.

The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention. It recalls that the obligation to protect life under Article 2, read in conjunction with the State's general duty under Article 1 to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State ….

The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as result of an act of violence. In its opinion, and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health care professionals and any liability on the part of the latter.

The Court stresses that its examination of the applicants' complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame …"

88. Pausing there, it does not seem to us that the court was saying that there was an arguable breach of the positive obligation to protect the lives of patients by reason of any failure going beyond "matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient". Yet it was saying that the state's obligation under article 2 extends to "the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health care professionals and any liability on the part of the latter". It perhaps does not matter whether that second obligation is described as a substantive obligation or a procedural obligation. In either case, the court was identifying the necessity for the state to institute an effective independent system for establishing both the cause of death of a patient and any liability on the part of his professional carers, which (as we read it) would include liability in negligence.
89. The court went on to examine the various forms of investigation that had taken place, looking first at proceedings before the Medical Services Committee of the relevant health authority and an appeal to the Welsh Office which was abandoned. The judgment continued:

"Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court's opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctors' responsibility for their son's death ….

Having regard to the above considerations the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son's death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death."

90. The language of the court in Powell reflected very similar language in the earlier case of Erikson, where the court described part of the state's obligation under article 2 as including "the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned." The court held the application inadmissible on the ground that the authorities had carried out a thorough investigation into the events and it was open to the applicant to bring an action for negligence against the hospital.
91. The court adopted much the same approach in Sieminska v Poland, where the complaint under article 2 was that the applicant's husband had died as a result of negligence by the staff of an ambulance station in failing to despatch an ambulance with special resuscitation equipment. The court again declared the application inadmissible. It repeated but (as Richards J put it) also built on what had been said in Erikson about the need for effective investigation:

"… The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims ….

In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients' lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims …."

92. As we read the judgment, the obligation to investigate did not depend upon the state being in breach of article 2, but upon the fact that the death occurred in the care of the state or in circumstances in which a servant of the state was arguably responsible on the ground of, say, negligence. The complaint was declared inadmissible because there was a criminal investigation which found that no criminal offence had been committed and because it was open to the applicant both to bring a civil action in tort against the state and to institute disciplinary proceedings against the medical practitioners concerned.
93. As we read the judgment in Calvelli v Italy, the court adopted the same approach there. The applicants complained of a violation of article 2 on the ground that, owing to procedural delays, a time-bar had arisen making it impossible to prosecute the doctor responsible for the delivery of their child, who had died shortly after birth. The court found that there had been no violation of article 2. Having referred to the obligation under article 2, not only to refrain from the intentional taking of life but also to take appropriate steps to safeguard life, the court continued:

"49. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable (see, among authorities, Erikson v. Italy … and Powell v. United Kingdom …).

50. The Court therefore considers that Article 2 is applicable. It must now determine what judicial response was required in the specific circumstances of the present case.

51. … However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal- law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.

…

54. In the instant case, the Court notes that the criminal proceedings instituted against the doctor concerned became time-barred …. However, the applicants were also entitled to issue proceedings in the civil courts and that is what they did …. It is true that no finding of liability was ever made against the doctor by a civil court. However, the case file shows that in the civil proceedings … the applicants entered into a settlement agreement with the doctor's and the clinic's insurers and voluntarily waived their right to pursue those proceedings ….

55. The Court accordingly considers that the applicants denied themselves access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor's responsibility for the death of their child. In that connection, the Court reiterates, mutatis mutandis, that 'where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim' (see Powell …)."

94. The position there was the same as in the earlier cases. Article 2 was, as the court put it, "held applicable" because the patient died while in the care of the medical profession but the complaint failed because Italy had set up an appropriate system, including the right to bring a civil claim, either alone or in conjunction with criminal proceedings, (and disciplinary proceedings were also possible) and the applicants settled their civil claim and waived their rights.
95. Richards J expressed his conclusions derived from the Strasbourg cases as follows in paragraph 59 of Goodson:

"59. I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows:

(i) Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life. This is stated clearly in Powell.

(ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.

96. We entirely agree with those conclusions but add this with regard to conclusion (i). It is important to note that Richards J refers to simple negligence. The position is or may be different in a case in which gross negligence or manslaughter is alleged: see eg Regina (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971. By gross negligence we mean the kind of negligence which would be sufficient to sustain a charge of manslaughter.
97. Richards J's conclusion (iii) was in these terms:

(iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases the availability of a civil action in negligence and/or the applicant's settlement of such an action is central to the court's conclusion that there has been a sufficient investigation of the death: i.e. it is the existence of an effective judicial system that seems to be decisive. Secondly, Calvelli is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.

98. We agree with those conclusions, subject to this. We recognise that Calvelli, and indeed the other cases, tend to refer to the state's positive obligation to set up an effective judicial system but it seems to us that central to the court's approach throughout is that the relevant events should be subject to an effective investigation. In order to comply with article 2, the state must set up a system which involves a practical and effective investigation of the facts. While we agree that the cases do not support the conclusion that there is an independent obligation on the state to investigate every case in which it is arguable that there was, for example, medical negligence, the system must provide for a practical and effective investigation. Thus, for example in Middleton the House of Lords said in paragraph 8:

"8.  The Court has recognised (in McCann v United Kingdom, para 146) that its approach to the interpretation of article 2

"must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective."

Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established."

99. If, as in our opinion is the case, the system must be practical and effective, we are not persuaded that the mere fact that the state has made it possible in law for the family to begin a civil action against those said to be responsible is by itself a sufficient discharge of the state's obligation in every case. For example, it may not be practicable for the family to procure an effective investigation of the facts by the simple expedient of civil proceedings. Their claim may be for a comparatively small sum, as for example where the only claim is that of the estate of the deceased, such that it would not make practical or economic sense for civil proceedings to be begun, especially for a family who is not able to obtain legal aid.
100. Another possibility is that the facts may be such that liability has been admitted, with the result that, at any rate under the adversarial system in operation in England, there can be no trial and thus no independent investigation of the facts as part of the civil process.
101. Some light is we think thrown on this point by Vo v France (2005) 40 EHRR 12, which was decided in July 2004 but not cited to Richards J in Goodson. In Vo, following medical negligence at the hands of her doctor, the applicant suffered injury to her amniotic sac, which necessitated termination of her pregnancy. The foetus was between 20 and 24 weeks at termination. The doctor was charged with causing unintentional injury but was acquitted on the ground that the foetus was not at that stage a human person. The acquittal was upheld by the Cour de Cassation. The applicant alleged a breach of article 2. The court dismissed objections as to admissibility but held (by 14 to 3) that there was no violation of article 2.
102. The court said this in paragraphs 88 to 91:

"88.  The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the State not only to refrain from the "intentional" taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36).

89.  Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, § 49).

90.  Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, "the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged" (see Calvelli and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).

91.  In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury – which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor's alleged negligence (see Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor's part, which nonetheless, in the Court of Appeal's opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable."

103. There was thus no violation of article 2 because there was an appropriate system in place. However, the passage we have italicised suggests to us that a factor in the court's conclusion was that, if the applicant had started civil proceedings in time she would have been entitled to an adversarial hearing and thus an investigation of the relevant facts. If the position were, for example, that the doctor had admitted civil liability and that no independent investigation was possible as a result, the court might well not have held that the system sufficiently provided for the cause of death to be determined, as envisaged by paragraph 89 of the judgment.
104. The fourth, fifth and sixth conclusions set out by Richards J in Goodson were these:

"(iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.

(v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state's positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state's positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.

(vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state's positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in oral argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state's positive obligations under article 2."

105. Subject to what is said in paragraphs 97 to 103 above, we agree with those conclusions. It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European Court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.
106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act by giving a wider meaning to "how" as envisaged in Middleton, and provided that it carries out the kind of full and fair investigation which is discussed earlier in this judgment and which (we hope) will now take place, in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective. Moreover, the family will be able to take a full part.
107. In these circumstances, while article 2 is engaged in the sense described above, the present system including the inquest does not fall short of its requirements in any way. On the contrary it complies with it.
108. We add only this. We do not accept Mr Fitzgerald's submission that the principles in the custody cases which have been analysed in some detail in Amin and Middleton apply here because Mr Takoushis would have been detained if the hospital had been aware that he was about to leave the hospital. In our opinion there is an important difference between those who are detained by the state and those who are not. Mr Takoushis was not.

CONCLUSION

109. It is important to note that the principles applicable to a case of this kind are different from those which apply to a death in custody. In the result, however, we allow the appeal, quash the verdict of the inquest and order a new inquest, which should be conducted in accordance with the principles identified in Jamieson, Dallaglio and Middleton, without any reading down of the 1988 Act. On the facts of this case, the system in operation in England, including an inquest conducted in such a way, will comply with article 2 of the ECHR.