QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
HHJ PETER THORNTON QC, THE CHIEF CORONER
| The Queen on the application of Maxine Hamilton-Jackson
|- and -
|HM Assistant Coroner for Mid Kent and Medway
Sian Davies (instructed by Kent County Council Legal Services) for the Defendant
Hearing date: 22 June 2016
Crown Copyright ©
Lord Justice Beatson:
"On 10 January 2013 at a time between 11:45 and 14:40 Sean Joseph Jackson suspended himself by a ligature made out of strips torn from a sheet that was tied to his cell light fitting in his cell at HMP Elmley and declared deceased at 15:42pm".
Mr Odogwu, on behalf of the claimant, stated at the hearing and in his post-hearing submissions (as to which see below) that these conclusions are not challenged in this judicial review. The challenge is to the answers to the questions on the jury questionnaire appended to the Record of Inquest about "closing" the deceased's ACCT and not reopening it, and the handwritten statement on that questionnaire relating to the ACCT policies. I set the questions out at  below and the answers and the handwritten statement at  below. The claimant seeks an order quashing the jury questionnaire. She does not seek an order for a fresh inquest. Mr Odogwu stated that the basis of her position is that the Record of Inquest complied with the statutory requirements under section 10 of the 2009 Act as to the determinations and findings to be made at an inquest, and that the procedural obligations of Article 2 of the European Convention on Human Rights are met by the inquest investigation itself together with a declaration by this court that the jury questionnaire was unlawful.
II. The relevant policies
"Any member of staff who receives information, including that from family members or external agencies, or observes behaviour which may indicate a risk of suicide/self-harm, must open an ACCT by completing the Concern and Keep Safe form".
The significance of the italics is that words in italics contain mandatory instructions. The national ACCT policy's procedures require the assessment of prisoners at risk, engagement with them and the completion of a Concern and Keep Safe form, an action plan to ensure that the prisoner is safe from harm including, within 24 hours, an assessment interview by a trained ACCT assessor and a case review attended and chaired by the residential manager or equivalent, the case manager, the assessor, and other relevant members of staff.
"In the event of any incident of self-harm, or whenever a member of staff believes a Prisoner is at risk of suicide or self-harm, they must (where there is not one open already) open an ACCT Plan".
It is then stated that the person opening the ACCT Plan must take a number of specified steps to ensure that the opening of the plan is known by relevant prison and healthcare staff, including completing a "Concern and Keep Safe" form; ensuring the prisoner is safe and passing the ACCT Plan to the prisoner's unit manager or the night orderly officer in person; ensure C-NOMIS is updated; and record (or ensure that the wing staff records) in the observation book and on C-NOMIS that an ACCT Plan has been opened.
- The mandatory action "is intended to empower all staff to determine current risk and thereby, the appropriate action to take, based on the available information before them".
- The mandatory action "is not intended to prompt staff to open an ACCT on all prisoners based on historical information about risk to self unless a current risk assessment/warning form, event or incident has occurred which indicates they are presently at risk of harm to themselves".
- "Historical information should be used as part of the overall risk assessment conducted as per local procedures to make an informed decision on the most appropriate course of action".
- Where historical information becomes available when a prisoner has been at the prison for a lengthy period, "this does not mean that an ACCT document must be opened, however, the information should be considered in the current context of the prisoner's behaviour and mental state".
III. The factual background and the evidence
"Yes, but the ACCT document itself doesn't protect the prisoner or patient, it's what level of observation, and obviously the ACCT document could be opened at any time during a 24 hour period. So that's why I would also bring in my second colleague, which would either be a nurse on duty at that time, possibly, so it's always good to liaise with colleagues because obviously one observation isn't necessarily correct, and that's why I refer back to, you definitely need a team approach, especially with such risks."
"I don't know how that would have changed the situation. Sorry, I'm unable to really comment. Obviously I can only apologise for what's happened".
In response to a question from the Assistant Coroner as to whether there were circumstances in place which could have initiated her into opening an ACCT, she stated that from her judgment at the time she felt it was not necessary, and that she had considered whether to open an ACCT. When asked what judgment she brought into play to decide not to open the ACCT, she replied "the evidence at the time, obviously linking with the policy, obviously I'd agree that that wasn't correct. Sorry."
"Yes, but also our nursing assessment which would also be on System One would also have the triggers, the protective factors etc. So it's not just the ACCT document that we have for guidance on these key points".
"So obviously he reported his self-harm, so and also handed me the object so was quite futuristic in his thinking. This was behaviour which he had displayed many times. So I'm looking at them type of factors. I wouldn't have considered that he was a high risk, obviously I was concerned because of the stresses such as he was in court, which is why I raised the level of observation, also the relationship with the girlfriend, that's another stressor, I hope that is an answer to your question".
IV. The summing up
"However, because this [is] an inquest which requires you to examine not simply by what means Sean died, but additionally, in what circumstances, you are required to examine wider issues of the death, in order to establish whether there have been or may have been failures of system, failures of system which caused or might possibly have caused Shaun's death."
"If you think that there was an appropriate system in place but that there was an error of judgment or a wrong decision taken within it, then be sure to indicate that by as neutral a statement as possible, without naming names or apportioning blame. Equally, if your view is that there was a proper system and it was operated appropriately, then you will not be troubled to declare anything at all."
"1. Was the decision to close Sean's ACCT on 30 December 2012 a reasonable one in all the circumstances?
2. Should the inpatient department staff have opened an ACCT on 8 January 2013 after Sean drew attention to his deliberate act of self-harm?
3. Should the inpatient department staff have opened an ACCT on 9 January 2013 on his return from court after Sean's circumstances changed when he became a convicted prisoner?
"You do not have to comment on the questions [on the questionnaire], however you may expand on them or explain your answers should you so wish. You are not confined to answering these questions alone, and you may comment on any matter which you deem relevant to the death."
He also stated that the jury should not record any act, omission or failure unless it had caused or contributed to the death on the balance of probabilities. If they chose to make further comment, their conclusions should be expressed in brief, factual and neutral language and must not include any indication of criminal liability on behalf of a named individual or any indication of civil liability but they "may come to a judgmental conclusion and may describe acts or omissions in more neutral terms as 'failures' and use such words as 'inappropriate', 'inadequate', 'omission', 'insufficient' or 'lacking'".
"You may choose to use the accompanying questionnaire as a prompt to focus your further deliberations, and draft your own concise comments, or you might simply select one of the optional answers and attach an answered questionnaire to the record of inquest".
" and he summoned a nurse in order to show that nurse that he had scratched himself. The evidence seems to be that it was a superficial scratch and that it was undertaken with some metal implement, like a paperclip, something like that."
"the questionnaire is posed in this way so that you may, if you think it right, reflect in your announcements whether there was in effect a failure of system. Not was there an operational failure, I stress, was there a failure of system, by polarising the dichotomy between: is it mandatory to open an ACCT when a particular event occurs or is it mandatory to open an ACCT when the relevant official considers there is a risk of suicide or self-harm? If it's mandatory to open an ACCT simply on the event of self-harm, or perhaps change of circumstance, then there doesn't seem to be any opportunity for the relevant member of staff to assess risk, but if it's not mandatory because of the event, but is mandatory if the event, considered in the round, suggests to the observer a real risk of harm or suicide, then it may be that an ACCT should be opened. But in this way, this dichotomy represents, you might think, a system failure, or you might not, entirely a matter for you. You can reflect that, I daresay, in response to the questionnaire."
"You will have to consider whether the circumstances were in place which required an ACCT to be opened on the 8th January or whether one was required to be opened on the 9th of January, what your view is about that. You will have to ask yourself, is the essence of the ACCT policy that it calls for an assessment of risk of self-harm or risk of suicide, is it the risk which has to be looked at, and is it the risk which leads a person to decide, well I think there's a risk so I must open an ACCT.
Or is it, as Mr Odogwu has explored with all of the witnesses, that there are circumstances, at least as they prevail in Elmley, contrary to the spirit of both the national policy and its quicktime learning clarification, it's not so much risk which has to be assessed, but an event which must be responded to.
If it's the event, it would seem that it doesn't matter how slight or how trivial in itself that event is, it dictates that an ACCT must be opened. If that is the correct interpretation, then you may think that the way in which you answer one or other of the questions posed is effectively set by that conclusion."
V. The jury's conclusion
"We suggest, having looked at the local and national ACCT policy documents, that the amendments to the national policy need to be reflected in the local Suicide Prevention and Self-Harm Management policy document."
VI. The challenge
(1) The Assistant Coroner's direction to the jury on questions 2 and 3 of the jury questionnaire was unclear, incomplete and inaccurate, and/or misleading;
(2) The Assistant Coroner's presentation of the key evidence of Claire Cortez to the jury was inaccurate and/or misleading;
(3) The jury's findings on the inquisition are perverse and demonstrate that they could not have understood, and certainly failed properly to apply, the law prohibiting findings of opinion and recommendations in section 5 of the Coroners and Justice Act 2009; and
(4) The Assistant Coroner's "misdirection" was a breach of the procedural obligation arising from Article 2 of the European Convention on Human Rights.
Ground 1: Misdirection concerning ACCT policies
Ground 2: Misdirection concerning Nurse Cortez's evidence
Ground 3: unlawful opinion and recommendation in jury's conclusion
"Neither the Senior Coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than
(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable;
(b) the particulars mentioned in subsection (1)(c)".
The particulars mentioned in section 5(1)(c) are those required by the 1953 Act to be registered concerning the death.
Ground 4: breach of Article 2 ECHR
The Chief Coroner: