QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Joanna Letts
|- and -
|The Lord Chancellor
- and -
The Equality & Human Rights Commission
Martin Chamberlain QC and Malcolm Birdling (instructed by The Treasury Solicitor) for the Defendant
Jessica Simor QC (instructed by EHRC) for the Intervener
Hearing dates: 5th February 2015
Crown Copyright ©
|A Introduction: Issue and Conclusion||1-19|
|(a) The Issue||1-4|
|(b) The Lord Chancellor's Exceptional Funding Guidance (Inquests) ("the Guidance") and the challenge thereto||5-13|
|Conclusions on scope of Article 2||14-15|
|B The scope of the proceedings and the limits of this judgment||20-32|
|C A summary of the relevant facts||33-43|
|D The statutory framework||44-51|
|E The Guidance||52-57|
|F The purpose and object behind the Article 2 duty to investigate and the right of next-of-kin to be represented||58-65|
|G The Article 2 duty to investigate includes a right to legal representation in a proper case||66-70|
|H The circumstances in which the investigative duty arises automatically,
i.e. without evidence of (arguable) breach upon the part of the State
|I Conclusion as to the scope of Article 2 in the case of the suicide of psychiatric patients||92-103|
|J The test to be applied to the legality of Guidance: When should the Court interfere?||104-119|
|K The use of the word "most" in the Guidance, paragraph ||120-122|
|L Appropriate relief||123-124|
Mr Justice Green :
A. Introduction: Issue and conclusion
(a) The issue
(b) The Lord Chancellor's Exceptional Funding Guidance (Inquests) ("the Guidance") and the challenge thereto.
(c) Conclusions on scope of Article 2
B. The scope of the proceedings and the limits of this judgment
"It seems to me that this is a significant issue, particularly as other similar claims can be expected, and requires consideration at a short oral hearing".
He referred to the point as having "potential wider implications".
"The Lord Chancellor is under a statutory duty (under Section 4(4) LASPO) to ensure that the Director acts independently of him in individual cases. Therefore neither the Lord Chancellor nor his officials have had any involvement in any of the cases referred to so I am therefore unable to comment on those decisions or the role the relevant parts of the Guidance may have played in them. Likewise, I am not able to respond to the general criticisms of the Legal Aid Agency's decision-making that are made in these and other witness statements served in these proceedings. My inability to comment on such allegations should certainly not be taken as an acceptance that there might be any force in them. However I do not in any event consider such allegations to be relevant to Ground 1, which is concerned specifically and only with the assertion that the Guidance "suggests that there will only be a breach of the Art 2 substantive duty if there has been a systemic failure and/or fails properly to set out the nature of the operational duty" and so "fails to give adequate guidance on the scope of the State's substantive duties under Art 2 ECHR"".
C. A summary of the relevant facts
"The [approved mental health practitioner] was from Somerset and was not familiar with Christopher. This was a consequence of the Trust placing Christopher out of area. The Trust's subsequent investigation found that "the AMHP reported that it was not able to identify CL's nearest relative due to limited time and information not being on the referral" and "it is likely the contact with the family may have been helpful to the assessment process as there was no one involved in the assessment that had any prior knowledge of CL".
Neither doctor considered that Christopher had present symptoms of mental disorder and did not recommend his detention. In his statement for the inquest, Dr Clark (one of the two assessing doctors) indicates that it was material to his decision that Christopher stated that he was prepared to stay at the Hospital until his health improved.
On 16 August 2013, Christopher changed his mind and asked to leave the Hospital and was allowed to do so. No further assessment was conducted. Staff bought him a ticket and put him on a train to London. There had been no opportunity to observe whether the anti-psychotic treatment, started the day before, was working. The Trust's investigators observed: "CL final admission was very brief and it is not clear that the course of CL's change in presentation had been fully explored prior to him taking his discharge…"".
D. The statutory framework
"1. Everyone's right to life shall be protected by law".
"(3) The Director must -
(a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and
(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions".
"10. Exceptional casesThis sectionnoteType=Explanatory Notes has no associated ""
(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.
(2) This subsection is satisfied where the Director—
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
(4) This subsection is satisfied where—
(a) the services consist of advocacy in proceedings at an inquest under the Coroners Act 1988 into the death of a member of the individual's family,
(b) the Director has made a wider public interest determination in relation to the individual and the inquest, and
(c) the Director has determined that the individual qualifies for the services in accordance with this Part,
(and neither determination has been withdrawn).
(5) For the purposes of subsection (4), a wider public interest determination is a determination that, in the particular circumstances of the case, the provision of advocacy under this Part for the individual for the purposes of the inquest is likely to produce significant benefits for a class of person, other than the individual and the members of the individual's family.
(6) For the purposes of this section an individual is a member of another individual's family if—
(a) they are relatives (whether of the full blood or half blood or by marriage or civil partnership),
(b) they are cohabitants (as defined in Part 4 of the Family Law Act 1996), or
(c) one has parental responsibility for the other".
E. The Guidance
"1. This guidance is issued by the Lord Chancellor to the Director of Legal Aid Casework under section 4(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the Act"). The Director must have regard to this guidance in determining whether civil legal services in relation to an inquest are to be made available under section 10 of the Act. As, in practice, applications will be considered by caseworkers on the Director's behalf, this guidance is addressed to caseworkers.
2. This guidance sets out some of the factors that caseworkers should take into account in deciding exceptional funding applications in relation to inquests. It is not intended to be an exhaustive account of those factors. In particular, it is not intended to replace the need for consideration of representations in individual cases and new case law that arises. Applications should be considered on a case by case basis.
3. The Government has retained Legal Help, the advice and assistance level of legal aid, for inquests into the death of a member of the individual's family. Legal Help can cover all of the preparatory work associated with the inquest, which may include preparing written submissions to the coroner. Legal Help can also fund someone to attend the inquest as a "Mackenzie Friend", to offer informal advice in Court, provided that the coroner gives permission.
4. Funding for representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one. The role of the coroner is to question witnesses and to actively elicit explanations as to how the deceased came by his death. An inquest is not a trial. There are no defendants, only interested persons, and witnesses are not expected to present legal arguments. An inquest cannot determine civil rights or obligations or criminal liability, so Article 6 ECHR is not engaged.
5. There are two grounds for granting legal aid exceptionally for representation at an inquest. The first is that it is required by Article 2 ECHR. The second is where the Director makes a "wider public interest determination" in relation to the individual and the inquest. These are dealt with in turn below.
Article 2 ECHR
6. Pursuant to section 10(3) of the Act, Article 2 ECHR may require legal aid to be granted for representation before the Coroners Court. Funding will be granted where:
The procedural obligation under Article 2 ECHR arises and, in the particular circumstances of the case, representation for the family of the deceased is required to discharge it.
7. In effect this is a two tier test. Caseworkers should first be satisfied that there is an arguable breach of the State's substantive obligation under Article 2 ECHR. Where the caseworker is satisfied, he or she will then decide whether funded representation is required to discharge the procedural obligation.
Article 2 – Background and caselaw concerning inquest funding
8. Article 2 ECHR confers a "right to life". It imposes on States a "substantive obligation" both not to take life without justification, and also to establish a framework of laws, precautions, and means of enforcement which will, to the greatest extent reasonably practicable, protect life.
9. Article 2 also imposes a "procedural obligation" on the State. However, this only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life. In R (Gentle) v Prime Minister  1 AC 1356 Lord Bingham said that:
"the procedural obligation under article 2 is parasitic upon the existence of the substantive right, and cannot exist independently".
10. This position has been recently reiterated in R (Claire Humberstone) v Legal Services Commission  EWCA Civ 1479:
"…article 2 will be engaged in the much narrower range of cases where there is at least an arguable case that the state has been in breach of its substantive duty to protect life; in such cases the obligation is proactively to initiate a thorough investigation into the circumstances of the death." (para 67)
Has there been an arguable breach of the substantive obligation?
11. As explained in paragraph 7, in assessing applications for inquest representation under section 10(3) of the Act, caseworkers must first determine whether there has been an arguable breach of the State's substantive obligation under Article 2 ECHR.
12. It is likely that there will be an arguable breach of the substantive obligation where State agents have killed the individual: for example, a police shooting. It is also likely that an arguable breach of the substantive obligation will occur where the individual has died in State custody other than from natural causes: for example, killings or suicides in prison.
13. It is unlikely that there will be an arguable breach of the substantive obligation where there is no State involvement in the death, for example, the fatal shooting of one private individual by another private individual (where the authorities had no forewarning or other knowledge prior to the death). Another example is a death (in State detention) through natural causes.
14. There may be an arguable breach of the substantive obligation where it is alleged that the State has played some role in the death, including a failure to take reasonable steps to prevent the death.
15. In the context of allegations against hospital authorities Humberstone makes clear that there will not be a breach of the substantive obligation where a case involves only allegations of ordinary medical negligence as opposed to where the allegations of negligence are of a systemic nature. The judgment also emphasises the necessity for care to be taken to ensure that allegations of individual negligence are not dressed up as systemic failures.
16. Coroners may express a view as to whether they consider there has been an arguable breach of the substantive obligation and whether they intend to conduct a "Middleton inquiry". It should be noted that, should the coroner choose to express their views, they are material and not determinative. There is no expectation that the coroner's views should be actively sought.
If there has been an arguable breach of the substantive obligation, is funded representation for the family of the deceased required to discharge the procedural obligation?
17. In cases where a caseworker has decided that there is an arguable breach of the substantive obligation, he or she must then consider the second tier of the test for funding under Article 2 ECHR.
18. Where there is an arguable breach of the substantive obligation, and the "procedural obligation" does arise, Middleton (R (Middleton) v HM Coroner for Western Somerset (2004) 2 AC 182) makes clear that a Jordan compliant inquest is necessary. Jordan is a reference to the case of Jordan v UK  37 EHRR 2. This case concerned the shooting by police in Belfast of a young, unarmed man in 1992. The court established in Jordan that in order to satisfy the requirements of Article 2, any investigation had to satisfy the following five criteria to be effective:
• The inquiry must be on the initiative of the State, and it must be independent;
• It must be capable of leading to a determination of whether any force used was justified, and to the identification and punishment of those responsible for the death;
• It must be prompt and proceed with reasonable expedition;
• It must be open to public scrutiny to a degree sufficient to ensure accountability; and
• The next-of-kin of the deceased must be involved in the inquiry to the extent necessary to safeguard their legitimate interests.
19. In most cases the coroner can conduct an effective investigation, with the family's participation, without the family of the deceased needing to be legally represented. In the case of Khan, the court found that:
"…the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented…" (para 74., Khan v Secretary of State for Health  EWCA Civ 1129).
20. In considering whether funded representation may be necessary to discharge the procedural obligation, all the individual facts and circumstances of the case must be taken into account by caseworkers, including: i) the nature and seriousness of the allegations against State agents; ii) previous investigations into the death; and iii) the particular circumstances of the family".
i) First, the Director is duty bound to have regard to the Guidance in determining applications for legal aid and this, in practice, means that the Guidance is "addressed to caseworkers" (para ). It is not intended to be exhaustive and it is not a substitute for the proper consideration of individual cases and representations. In particular caseworkers will need to consider "new case law that arises" (para ).
ii) Secondly, the Guidance recognises (para ) that legal aid may be "required by Article 2 ECHR", in other words it is not optional. This is also reflected in para  where the Guidance states that legal aid may be required to be granted where "…the procedural obligation under Article 2 ECHR arises".
iii) Thirdly, in order to determine whether the procedural obligation in Article 2 requires legal aid there is a two tier "test". The first part of the test is whether: "…there is an arguable breach of the State's substantive obligations under Article 2 ECHR". This is quite plainly intended by the Lord Chancellor to be a test of general application. This can be seen from the location of this test in the overall structure of the Guidance. It comes as a preface to the more detailed analysis which follows and is under the heading "Funding Criterion". The typical caseworker who read this would construe it as "the" test or criterion to be applied and no exceptions or caveats to that test are elsewhere laid down or contemplated in the Guidance.
iv) Fourthly, paras  –  are concerned with background matters and "case law concerning inquest funding". As such a caseworker would look to these paragraphs for a broad summary of the existing case law. It is notable that paragraph 2 does instruct the caseworker to look out for "new case law"; but this would serve to highlight in the caseworker's mind that the Guidance was intended to be – in broad terms at least - a fair summary of the existing law (i.e. old case law). As to the existing law para  states in unqualified terms that the Article 2 "procedural obligation" on the State "only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life." Two words here are of particular significance. First the word "only" (in para ) is important because the reasonable caseworker would construe this as strong guidance that there were no exceptions to the need to conduct an arguability of breach test. Secondly, the word "evidence" is also important because, in its context, it is clear guidance to the caseworker that evidence must be collected and only if it has been and is sufficient to show an arguable case of breach is the first threshold test to be treated as met. The citation of the dictum in Humberstone of the expression "at least an arguable case" (cf para ) reinforces this conclusion. The Guidance portrays this case as a recent reiteration of what is presented as a basic principle.
v) Fifthly, as to what has to be shown, arguably, to have been breached the Guidance indicates that it is the substantive obligation. I note that the Guidance uses the singular "obligation" when, in law, it is clear that Article 2 imports numerous sub-duties and obligations. I do not however criticise the Guidance for this since, it seems sufficiently plain, the gist of the Guidance is that the caseworker must look for an arguable breach of any of the constituent duties found within Article 2.
vi) Sixthly, paragraph  would be viewed by any caseworker as a reinforcement of the obligation upon him/her to assess the evidence to see whether there was a case of arguable breach by the state because the Guidance explicitly equates evidence of arguable breach with the statutory duty under section 10(3) LASPO.
vii) Seventhly, paragraphs  –  give a steer to the caseworker in five specific and important factual circumstances. In each case the Guidance classifies the case in terms of the probability of the caseworker finding an arguable breach on the evidence. The Guidance identifies types of case where it is "likely" that there would be an arguable breach, or "unlikely that there would be an arguable breach, or, where there "may" be such an arguable breach. The case types are: (a) a killing committed by a state agent (para ); (b) a death in police custody other than from natural causes (para ); (c) deaths where there is no state involvement whatsoever (para ); (d) deaths where the state might in some degree be complicit because there was a failure to prevent death (para ); and (e), deaths caused in hospital where there are allegations of negligence but not systemic failures (para ). In each case the Guidance is clear that the assessment of probability is based upon the likelihood of there being "an arguable breach" or "a breach" of a substantive obligation. This conclusion is buttressed by the terms of para  which focuses upon the relevance of a conclusion by a coroner that "there has been an arguable breach of the substantive obligation". The significance of this is that, as I set out below, these types of case include those where the courts have made clear that the trigger for the investigation is automatic, i.e. not arguable breach. The consequence of this is that the only place in the Guidance where these types of case are referred to is still in the context of the arguability test.
viii) Eighthly, para  is important. Here the Guidance makes clear to the caseworker that they are not to proceed to the second step (which involves a consideration of the need for funding) unless he/she has "decided that there is an arguable breach". The indication that the caseworker must make a decision on arguability as the threshold for moving to stage two (need) is, in fact, no more than a repetition and reinforcement of the point made throughout the entirety of the Guidance which is that the Article 2 procedural obligation is triggered by "evidence" showing that there has been an arguable breach by the State. However, the notion of a "decision" implies a degree of formality about a conclusion that there must be an arguable breach and entrenches the importance of that test.
ix) Ninthly, para  makes the conducting of a Middleton type inquest conditional upon the existence of an arguable breach cf "…where there is an arguable breach".
F. The purpose and object behind the Article 2 duty to investigate and the right for next-of-kin to be represented
"5. Compliance with the substantive obligations referred to above must rank among the highest priorities of a modern democratic state governed by the rule of law. Any violation or potential violation must be treated with great seriousness".
"5. These statistics, grim though they are, do not of themselves point towards any dereliction of duty on the part of the authorities (which have given much attention to the problem) or any individual official. But they do highlight the need for an investigative regime which will not only expose any past violation of the state's substantive obligations already referred to but also, within the bounds of what is practicable, promote measures to prevent or minimise the risk of future violations. The death of any person involuntarily in the custody of the state, otherwise than from natural causes, can never be other than a ground for concern".
"31. The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred …. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country … effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others".
G. The Article 2 duty to investigate includes a right to legal representation in a proper case
"41. The duty to investigate is partly one owed to the next of kin of the deceased as representing the deceased: it is partly to others who may in similar circumstances be vulnerable and whose lives may need to be protected".
"(i) The investigation must be initiated by the State itself;
(ii) The investigation must be prompt and carried out with reasonable expedition;
(iii) The investigation must be effective;
(iv) The investigation must be carried out by a person who is independent of those implicated in the events being investigated;
(v) There must be a sufficient element of public scrutiny of the investigation or its results;
(vi) The next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".
"72. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
73. For the same reasons, there must 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. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".
H. The circumstances in which the investigative duty arises automatically i.e. without evidence of (arguable) breach upon the part of the state
"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".
"The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred. The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances. The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental health illness who have been detained under the Mental Health Act: Savage v South Essex Partnership NHS Foundation Trust (MIND intervening)  AC 681".
Further, Lord Mance at para  identified five categories of death where the substantive rights contained within Article 2 have been held to be potentially engaged "…with the result that the procedural obligation has been held to exist". These categories were: killings by State agents; deaths in custody; conscripts; and, mental health detainees. The fifth category is "… other situations where the State has a positive substantive obligation to take steps to safeguard life". With regard to the category of mental health patients Lord Mance cited Savage of which he stated:
"…although concerned not with any duty to investigate under Article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide – highlights the analogy between the State's duty towards persons in custody and persons in detention for mental health reasons as well as conscripts".
"58. Precisely because the obligation on the prison authorities to protect a prisoner from himself is not absolute and depends on the particular circumstances, a suicide can occur without there having been any violation of the prison authorities' obligations under article 2 to protect the prisoner. Focusing on that point, Mr Giffin QC argued on behalf of the Secretary of State that article 2 did not require an independent investigation to be held unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner.
59. That argument is mistaken. Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong".
"113. In common, I understand, with all of your Lordships, I would reject the Secretary of State's submission that an article 2 investigation is only required where the State is in arguable breach of its substantive article 2 duty to protect life, in the sense that it ought arguably to have known of a real and immediate risk of a prisoner committing suicide and failed to take out reasonable preventive measures. While it is dangerous to generalise and I confine myself for the present to circumstances such as those of the present case, I agree that the relationship between the State and prisoners is such that the State is bound to conduct an article 2 compliant inquiry whenever its system for preventing suicide fails and as a result the prisoner suffers injuries in circumstances of near-suicide significantly affecting his or her ability to know, investigate, assess and/or take action by him or herself in relation to what has happened".
"Troops on active service are at risk of being killed despite the exercise of due diligence by those responsible for doing their best to protect them. Death of a serviceman from illness no more raises an inference of breach of duty on the part of the State than the death of a civilian in hospital. For these reasons I reject the submission that the death of a serviceman on active duty…automatically gives rise to an obligation to hold an article 2 investigation".
"28. As regards the differences between an informal psychiatric patient and one who is detained under the MHA, these are in many ways more apparent than real. It is true that the paradigm of a detained patient is one who is locked up in a secure hospital environment. But a detained patient may be in an open hospital with freedom to come and go. By contrast, an informal patient may be treated in a secure environment in circumstances where she is suicidal, receiving medication for her mental disorder which may compromise her ability to make an informed choice to remain in hospital and she would, in any event, be detained if she tried to leave. Informal in-patients can be detained temporarily under the holding powers given by section 5 of the MHA to allow an application to be made for detention under section 2 or 3 of the MHA. The statutory powers of detention are the means by which the hospital is able to protect the psychiatric patient from the specific risk of suicide. The patient's position is analogous to that of the child at risk of abuse in Z v United Kingdom, where at paras 73-74 the court placed emphasis on the availability of the statutory power to take the child into care and the statutory duty to protect children. No such powers exist, or are necessary, in the case of the capable patient in the ordinary healthcare setting.
29. Although informal patients are not "detained" and are therefore, in principle free to leave hospital at any time, their "consent" to remaining in hospital may only be as a result of a fear that they will be detained. In Principles of Mental Health Law and Policy (2010 OUP) ed Gostin and others, the authors have written in relation to admission at para 11.03:
"Since the pioneering paper by Gilboy and Schmidt in 1979, it has been recognised that a significant proportion of [informal] admissions are not 'voluntary' in any meaningful sense: something in the range of half of the people admitted voluntarily feel coerced into the admission; it is just that the coercion is situational, rather than using legal mechanisms."
30. As regards the voluntary psychiatric patient who is at risk of suicide and the patient suffering from a life-threatening physical illness who is in an "ordinary" hospital setting, the nature of the risk to which these two categories of patient are exposed is very different. In the case of the suicide of a psychiatric patient, the likelihood is that, given the patient's mental disorder, her capacity to make a rational decision to end her life will be to some degree impaired. She needs to be protected from the risk of death by those means. The present case is a tragic illustration of this. Melanie was admitted to hospital because she was suffering from a mental disorder and had attempted to commit suicide. The very reason why she was admitted was because there was a risk that she would commit suicide from which she needed to be protected. On the other hand, the patient who undergoes surgery will have accepted the risk of death on the basis of informed consent. She may choose to avoid the risk by deciding not to go ahead with the medical treatment".
"34. So on which side of the line does an informal psychiatric patient such as Melanie fall? I am in no doubt that the trust owed the operational duty to her to take reasonable steps to protect her from the real and immediate risk of suicide. Whether there was a real and immediate risk of suicide on 19 April 2005 (and if so whether there was a breach of duty) is the second issue that arises on this appeal. But if there was a real and immediate risk of suicide at that time of which the trust was aware or ought to have been aware, then in my view the trust was under a duty to take reasonable steps to protect Melanie from it. She had been admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The trust assumed responsibility for her. She was under its control. Although she was not a detained patient, it is clear that, if she had insisted on leaving the hospital, the authorities could and should have exercised their powers under the MHA to prevent her from doing so. In fact, however, the judge found that, if the trust had refused to allow her to leave, she would not have insisted on leaving. This demonstrates the control that the trust was exercising over Melanie. In reality, the difference between her position and that of a hypothetical detained psychiatric patient, who (apart from the fact of being detained) was in circumstances similar to those of Melanie, would have been one of form, not substance. Her position was far closer to that of such a hypothetical patient than to that of a patient undergoing treatment in a public hospital for a physical illness. These factors, taken together, lead me to conclude that the ECtHR would hold that the operational duty existed in this case".
"The extent of the procedural obligation of [the] State in relation to inquiries after such MHA deaths is therefore a matter of public interest and importance".
I. Conclusion as to the scope of Article 2 in the case of the suicide of psychiatric patients
J. The test to be applied to the legality of guidance: When should the Court interfere?
"Your Lordships have been referred to the House's decision in
Royal College of Nursing v. Department of Health and Social
Security  AC 800http://www.bailii.org/uk/cases/UKHL/1980/10.html. The background to that case was
exceptional, as only becomes fully clear when one reads the
judgment of Woolf J at first instance, reported at  1 All
E.R. 545. The Royal College of Nursing ("R.C.N.") and the
D.H.S.S. had received conflicting legal advice as to whether or not it was lawful, on the true construction of certain provisions of the Abortion Act 1967, for nurses to perform particular functions in the course of a novel medical procedure for the termination of pregnancy, when acting on the orders and under the general supervision of a registered medical practitioner but not necessarily in his presence. The R.C.N. had issued a memorandum and a later circular to its members to the effect that it was not lawful. The D.H.S.S. had issued a circular advising that it was lawful. The desirability of an authoritative resolution of this dispute on a pure question of law was obvious in the interests both of the nursing profession and of the public. The proceedings took the form of a claim by the R.C.N. against the D.H.S.S. for a suitable declaration and the D.H.S.S. in due course counterclaimed a declaration to the
opposite effect. As Woolf J. pointed out, neither side took any
point as to the jurisdiction of the court to grant a declaration.
Woolf J. himself felt it necessary to raise and examine certain
questions as to the locus standi of the R.C.N. to bring the
proceedings and as to the propriety of their form. He answered
these questions in a favourable sense to enable him to decide the disputed question of law on its merits. No technical question bearing on jurisdiction attracted any mention in the Court of Appeal or in this House. In the litigation the original conflict between the parties was reflected in a conflict of judicial opinion. On a count of judicial heads a majority of 5 to 4 favoured the R.C.N. But by a majority of 3 to 2 in your Lordships' House the D.H.S.S.. carried the day and obtained the declaration they sought.
Against this background it would have been surprising indeed
if the courts had declined jurisdiction. But I think it must be
recognised that the decision (whether or not it was so intended)
does effect a significant extension of the court's power of judicial review. We must now say that if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi, has jurisdiction to correct the error of law by an appropriate declaration. Such an extended jurisdiction is no doubt a salutary and indeed a necessary one in certain circumstances, as the Royal College of Nursing case  AC 800 itself well illustrates. But the occasions of a departmental non-statutory publication raising, as in that case, a clearly defined issue of law, unclouded by political, social or moral overtones, will be rare. In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to deciding whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or preferring answers to hypothetical questions of law which do not strictly arise for decision".
"These defects in the memorandum constitute in my opinion
a mistake of law on the part of the D.H.S.S. The memorandum
assumes and asserts that the doctor is entitled by himself to
decide whether an unmarried girl under the age of 16 shall be provided with contraceptive facilities and that the doctor is
entitled to conceal that decision from the parent. In my opinion
the decision cannot lawfully be made without the consent of the parent in charge of the girl unless the parent has abandoned or abused parental powers or is not available. If the memorandum is defective by reason of a mistake of law and if, in consequence, a doctor making a decision in reliance on the views, expressed in the memorandum may unlawfully interfere with the rights of a parent and make and act upon a decision which the doctor is in law not entitled to make, then in my opinion, the D.H.S.S. which is responsible for the memorandum is amenable to the remedies of judicial review. It matters not whether the memorandum constitutes an order or guidance or advice or a mere expression of views directed to the medical profession or directed to doctors who are engaged in the National Health Service. The issue is not whether the D.H.S.S. are exercising a statutory discretion in a reasonable way but whether by mistake of law the D.H.S.S., a public authority, purports by the memorandum to authorise or
approve an unlawful interference with parental rights. In this
respect I gratefully acknowledge and accept the observations of my noble and learned friend, Lord Bridge of Harwich, and his warning against the involvement of the courts in areas of social and ethical controversy or hypothetical questions".
"The relevant law was considered by the judge at paragraphs 42-52 of his judgment. He said that the authorities recognise three bases on which a court can conclude that a government policy is unlawful. First, it is well established that a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful: Gillick v West Norfolk and Wisbech Area Health Authority  AC 112. Secondly, it was established in Munjaz that the test in article 3 cases is whether a policy exposes a person to a significant risk of the treatment prohibited by the article. The third basis is that laid down in the Refugee Legal Centre case. The judge said that Sullivan LJ in the Medical Justice case "held that despite Silber J referring to a wider test, he had in fact applied the Refugee Legal Centre test" and that Sullivan LJ "did not support the wider test which Silber J advanced in the course of his judgment" (paragraph 48). The judge then considered the two further first instance cases to which I have referred."
K. The use of the word "most" in the Guidance paragraph 
L. Appropriate relief