Dove (Part 1): Jamieson Inquests, Causation, and Conclusions

Last week the Court of Appeal gave judgment in Dove [2023] EWCA Civ 289, an appeal against the Divisional Court’s decision not to order a new inquest into the death of Jodey Whiting, in proceedings brought by her mother Joy Dove. Ms Whiting died a self-inflicted death in the community, after a mental health crisis, in which the decision of the Department of Work and Pensions to cease her benefits was said to have played a contributory role. An inquest in 2017 came to a conclusion of “suicide” (§1).

The appeal was brought on two grounds: first, that because of fresh evidence it was in the interests of justice to order a new Jamieson inquest (§3(i)); or second, that it was in the interests of justice to order a new Middleton inquest (§3(ii)). The appellant was successful on the first ground, but not on the second. What the Court of Appeal had to say about both grounds, however, will be of interest and of benefit to families in inquests.

This is the first of two posts about the judgment. In this post I consider the implications for inquests generally and in particular Jamieson inquests (i.e. those in which Article 2 ECHR is not engaged). In the second post I will examine the Court of Appeal’s analysis of the case in respect of Article 2 ECHR.

Before the Divisional Court, Ms Dove had raised several arguments to support her argument for a new Jamieson inquest, all of which were rejected. The case was narrower on appeal, based entirely on the availability of a new expert report. The report draws a causal connection between the Department’s decision to withdraw support from Ms Whiting and her self-inflicted death. It should, her mother argued, be put before a new coroner for their consideration as a contributory factor in her daughter’s death. The Court of Appeal, in a leading judgment by Whipple LJ, agreed to by Lewis and Davis LJJ, agreed that this would be ‘desirable’ and ordered a new inquest.

The Court of Appeal affirmed that, in law, the Jamieson definition of ‘how’ someone came by their death (‘by what means’) is not as expansive as the Middleton one (‘by what means and in what circumstances’) (§11). This is sometimes what is understood by an inquest’s ‘scope’. But ‘scope’ is also used to refer to the ‘key issues’ for investigation – and in that regard there is ample recent authority that this is not necessarily narrower in a Jamieson investigation (see: Boyce [2022] EWHC 107 (Admin), §72; Patton [2022] EWHC 1377 (Admin), §81; Morahan [2022] EWCA Civ 1410, §8). The distinction between the legal question, and the key issues, therefore remains important.

Overall, however, Dove strengthens the usefulness of Jamieson inquests as a means for families to get answers about the deaths of their loved ones. Three aspects of the decision are likely to be helpful: (1) causation; (2) the test to be applied to applications for a new inquest; and (3) the completion of the record of inquest.

Causation: Why Mental Health Deteriorates

First, in terms of causation, the Court of Appeal’s decision articulates the need for a coroner to consider why there may have been a deterioration in a person’s mental health, prior to a self-inflicted death. The attempt by the Respondent to distinguish between Ms Whiting’s mental health deterioration, and her suicide, was given polite but firmly short shrift. At §69 Whipple LJ agreed with the appellant that the question was not “but for” causation because

“…causation is a broader concept, which encompasses acts or omissions which contribute (more than trivially) to death and that it is open to a coroner in a suicide case to consider the extent to which acts or omissions contributed to the deceased’s mental health deterioration, which in turn led them to take their own life…”

Moreover, at §70 she went on to affirm that:

• Coroners may record facts which contributed to circumstances that may or may not have led to death because there is a “wide discretion conferred on coroners to establish the background facts, and then determine whether those facts were or were not causative of death”;
• No distinction need be drawn between physical causes and psychiatric causes which might have exacerbated mental illness, and it would be undesirable to restrict coroners in that way;
• Where suicide is a possible conclusion, the coroner needs to investigate the deceased’s intentions, so that they can properly consider the appropriate conclusion. This may require an investigation into why there was a mental health deterioration.

On this point, then, the judgment provides reassurance to families who seek to have inquests, whether Jamieson or Middleton, investigate the causes of deterioration of a deceased person’s mental health. If that deterioration was causative of death then the Coroner will need to consider the factors which made a contribution to it. It may well be that most, perhaps all, coroners already do this – but if the Respondent had been successful on this point it could have prompted a restriction of ‘key issues’ in inquests.

Inquests & the Interests of Justice

Second, in relation to any order to hold a new inquest, the Court of Appeal explored what was required by the statutory test, set out in s.13(1)(b) Coroners Act 1988. The provision includes a list of reasons which may make a new inquest "necessary or desirable in the interests of justice” including “fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence”. However, the list of indicative reasons also includes “or otherwise”, which opens the decision up to a wide range of possibilities. The decision therefore hinges on what is necessary or desirable in the interests of justice – something that is not statutorily defined in relation to inquests.

The Court of Appeal, in the judgments of Whipple LJ (§72) and Lewis LJ (§99) that while it was not ‘necessary’ to have a new inquest, it was desirable. This was so that the family would have the opportunity to invite a coroner to find that the Government Department contributed to Ms Whiting’s mental health deterioration, and to record that on the Record of Inquest. Whipple LJ’s reasons included the significance of the matter for the family, the public interest in a coroner considering “the wider issue of causation”, and the potential for a PFD Report to be made to the Department, given the “potentially wider significance” of the inquest. Moreover, this was so even though the second inquest would not necessarily reach a different conclusion. Lewis LJ also referred to consideration of causation – albeit he recalled that a Jamieson record of inquest must not express “judgment or opinion” (§99).

The Court’s consideration of the statutory test could have wider implications. The ‘interests of justice’ is referred to throughout Coronial law without statutory definition. For example, in the recent decision in Officer B50 [2023] EWHC 81 (Admin), the Divisional Court concluded (in its examination of Galbraith Plus, which governs the matters a coroner may leave to a jury), that where there is sufficient evidence upon which a jury safely arrive at a conclusion (the Galbraith part of the test), it should be left to them unless it is in the interests of justice to withdraw it (the Plus part) (§§64-65). By analogy with Dove, it can be argued that those interests include the significant of a matter to the family, and/or any wider public interest in it, adding weight in favour of leaving matters where there is evidential sufficiency, to be balanced against any counter-veiling factors that are said to exist. To have this decision in the context of a Jamieson inquiry, where Article 2 ECHR is not said to be engaged, is a welcome development.

The Outcome: A Better Record of Inquest

Third, in terms of the Record of Inquest, Dove supports the argument for more complete narratives in Jamieson inquests. A key limitation in a Jamieson inquest is that, while a Coroner (or jury) may return a narrative conclusion, that narrative may not be judgemental. There is already acknowledgement in the Chief Coroner Guidance No. 17 that “the difference in some cases may be slight and not much more than a matter of words” (§23). The Guidance states, in a Jamieson inquest some terms should be avoided – such as ‘missed opportunities’ or ‘inadequate failures’ (a difficult term of itself). But the following would be permissible: “The evidence leads me to find that the registrar did not seek advice from the consultant who was nearby and available at the time and the registrar knew that. The registrar acted on his own.”

In Dove, Whipple LJ held that in a fresh inquest into Ms Whiting’s death, a coroner could record (in either Box 3 or Box 4) that “the deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA on 7 February 2017 by the Department”. Their Lordships agreed (though Lewis LJ did reiterate the prohibition on judgmental language).

Only the family, in any given inquest, will know what will give them satisfaction. But such a conclusion, in a Jamieson inquest, would represent clear recognition of the causative role played by the decisions in question. A public authority might argue that terms such as “abrupt cessation” carry judgmental overtones. Yet, the summary of the expert evidence in the case suggest that it could be an accurate factual finding. Dove, therefore, may be authority for the proposition that while a Jamieson record of inquest must not be explicitly critical, it can records facts from which criticism could be inferred.

Overall, Dove is a welcome reinforcement of the fact-finding function in Jamieson inquests. In addition to helping to answer the questions families may have they also perform a wider role in relation to matters of public interest. Ms Whiting’s sad death is a reminder that public interest, in particular as it relates to Government Departments, is a potential consideration in all deaths – and not only those where Article 2 ECHR is held to be engaged. More, on that, in Part 2.