Dove (Part 2): Article 2 ECHR, Rabone, and Responsibility

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). In an earlier post I dealt with the first, successful, ground of appeal: that because of fresh evidence it was in the interests of justice to order a new Jamieson inquest. In this post I examine the Court of Appeal’s analysis of the case from the point of view of the engagement of Article 2 ECHR. 

It is well-known that, where Article 2 ECHR is engaged, an inquest must examine ‘by what means and in what circumstances’ the deceased came by their death: this is a Middleton inquest. Article 2 ECHR is understood to be ‘automatically’ engaged in some circumstances (e.g. self-inflicted deaths in state custody). Otherwise, the law requires that there is an arguable breach of one of the substantive duties that Article 2 imposes on states, including the positive operational duty to take reasonable steps where there is a real and immediate risk to life.

In Ms Whiting’s case, the family’s position was that there was an arguable breach of that positive operational duty – i.e. that the Department of Work and Pensions was or ought to have been aware of a real and immediate risk to life and failed to take reasonable steps to avoid it. Neither the Coroner nor the Divisional Court agreed. Although the argument also failed before the Court of Appeal, who ordered a new Jamieson and not a new Middleton inquest, the judgment nevertheless offers some analysis of use to families who seek to engage the duty. 

Rabone, By Way of Gardner

The relevant law is set out in the European Court of Human Rights decision in Osman [1998] ECHR 101, as formulated in national law by the Supreme Court in Rabone [2012] UKSC 2. Whether a duty arises requires consideration of any real and immediate risk to life, any assumption of responsibility, vulnerability of the victim, and exceptionality of the risk (§§21-25). There is, though, no “sure guide” to when the Strasbourg Court will find a duty engaged (§25). This was the law applied by the Court of Appeal in Dove.

It is often the case that where an argument about the engagement of Article 2 ECHR becomes difficult relates to the second of these matters: any assumption of responsibility. It is in this regard that Dove may be of assistance to families. As well as referring to Rabone directly, in Dove the Court of Appeal, affirmed the more recent articulation of the law found in R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin), [2022] 4 All ER 896. There, at §250, the High Court held that the domestic and Strasbourg case-law (including Rabone) gave rise to the following principles:

(i) A real and immediate risk to life is a necessary but not sufficient factor for the existence of an art 2 operational duty;

(ii) Generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals, of whom prisoners, detainees under mental health legislation, immigration detainees and conscripts are paradigm examples since they are under State control;

(iii) However, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent or unlawful acts of others (Osman) or man-made hazards (Oneryildiz, Kolyadenko) or natural hazards (Budayeva), or from appalling conditions in residential care facilities of which the authorities had become aware (Nencheva, Campeanu);

(iv) Watts suggests that, in appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know pose a real and immediate risk (according to Maguire, an exceptional risk) to the life of a vulnerable individual or group of individuals.”

Dove/Gardner confirms that, while an assumption of responsibility is an indicator of an operational duty being owed, it is not (in contrast with a real and immediate risk to life) a strict necessity. It is for this reason that the different parts of the Rabone test are best referred to not as ‘criteria’ but as ‘indicia’ (as the Supreme Court did in Rabone at §22, language repeated by the Divisional Court at §52 of Dove). They are not cumulative and don’t necessarily all have to be present for the operational duty to arise.

Indeed, from Dove/Gardner, it is only the first of the indicia that is said to be “necessary”: a real and immediate risk to life of which the authorities knew or ought to have known. In Dove, the Court of Appeal held that this indicator was missing, as there was not a risk to Ms Dove’s life of which the Department ought to have been aware (§90). Thus, even if other indicia were present, no operational duty would have arisen.

Responsibility in Dove

In relation to the assumption of responsibility, the Court of Appeal said at §91:

The third Rabone criterion relates to the state’s assumption of responsibility for the individual (noted in Maguire to be the unifying feature of the operational duty: see [72]). The policy documents before us demonstrate the Department’s arrangements for dealing with vulnerable persons as defined in the policies described above. But none of those policies, even assuming they were correctly implemented, indicates that the Department assumed responsibility for Jodey, or indeed for any vulnerable person who is in receipt of benefits. The fact that the Department is the agency responsible for administering the welfare benefits system does not of itself involve any assumption of responsibility to safeguard against the risks of suicide or self-harm by any of the many millions of persons with whom the Department has dealings.

There are two aspects to the analysis. First, the Court of Appeal considers whether or not the policies of the Department, applicable to Ms Whiting, were ones that assumed responsibility for her. Second, in looking at those policies and any responsibility that might be assumed, the focus is on the relevant risk (suicide or self-harm). 

The first point makes clear that in at least some instances – a community mental health team treating a patient for suicide or self-harm; or an alcohol/drug rehabilitation service treating someone for addiction – an assumption of responsibility might well arise. In Lee [2019] EWHC 3227 (Admin) the High Court remitted back to the coroner the question of whether an operational duty was owed to a mentally ill outpatient whose death was self-inflicted. There had been a suggestion that, in her initial decision-making, the coroner may have equated assumption of responsibility with ‘control’; and that vulnerability may not have been sufficient considered (§§47-50; §95 albeit the transcript is not always clear in its expression). Dove/Gardner confirms that such decision-making would be erroneous: responsibility must be looked at alongside other factors; and does not amount to control. 

The second point recalls the emphasis in Maguire [2020] EWCA Civ 738, [2021] QB 409 (§96-97) and Morahan [2022] EWCA Civ 1410, [2023] 2 WLR 497 that there should be a link between the type of risk, the scope of any duty, and the death. A positive operational duty might be owed to a psychiatric outpatient to protect them from self-inflicted death, but might not, for example, to protect them from death in a road-traffic accident (see Morahan §45). However, those seeking to engage Article 2 ECHR should consider links between the risk in respect of which a duty can be said to be owed, and the death which occurs. If, for example, the nature of someone’s psychiatric risk meant they were more likely to be involved in a road traffic accident, that could well be relevant. Perhaps more common may be the potential for mental health risks to overshadow or mask physical health risks. These all fall for consideration in appropriate cases.

How to Argue Rabone? Holistically...

Finally, it is important to reiterate that Dove/Gardner confirms that not only must any assumption of responsibility be understood in the context of all the Rabone indicia, there may be a duty owed even absent any such assumption. Looking at examples where no assumption of responsibility was necessary, these include violent acts of another, man-made or unnatural hazards, and “appalling” care home conditions. The common thread is the exceptionality of risk and/or vulnerability of victims. This too is foreshadowed in Rabone (§§23-24) and provides the other two indicia. As such it bolsters the case that the examination of indicia must be a holistic assessment and not a tick-box consideration of cumulative criteria.

The key points, then, for those arguing for the engagement of Article 2 ECHR in inquests because of an arguable breach of positive operational duty are:

• There must, arguably, be a real and immediate risk to life of which the authority knew or ought to have known;
• If it is arguable there was such a risk, analysis of whether or not there was a duty in respect of it must also take into account – holistically – any assumption of responsibility, any exceptionality of the risk, and any particular vulnerability of the deceased;
• An assumption of responsibility does not have to amount to control, but the responsibility said to be assumed must (at least arguably) be related to the risk which materialises and causes or contributes to death;
• If there is no arguable assumption of responsibility it is likely that the other indicia will need to be strongly present – an exceptional risk or particularly vulnerable victim – for the positive operational duty to be owed;
• Of course, if the duty was owed, there must also be an arguable breach of duty to trigger the obligation to hold an Article 2 ECHR/Middleton inquest.