In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court in R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 6 has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue. Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death. It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.

Mrs Speck’s 31 year-old daughter, who had a history of mental illness that had previously led to hospital admission, had been found screaming and acting erratically in the street and was detained under s.136 Mental Health Act. Miss Speck was said to be agitated and violent; she was taken to a police station and placed in a cell. A community care team were called. Sadly, some three hours after her detention commenced and before any care team had arrived, Miss Speck was found unresponsive and was later declared dead.

The police station was designated as the local place of safety for those detained under s.136 under MHA. The local A&E did not have a 136 suite; indeed, there was no health-based place of safety (HBPoS) in any setting in North Yorkshire at the relevant time. Documents before the court revealed that the local Deputy Chief Constable and the Police and Crime Commissioner for North Yorkshire Police had found this an issue of concern.

Mrs Speck requested that the inquest should investigate policy and resource allocation decisions behind why her daughter had been detained in a ‘place of safety’ at a police station rather than at a health-based placed of safety (HBPoS), including whether the arrangements between the Trust and the Police were appropriate and whether the NHS Trust had used its resources appropriately in the provision of a place of safety.

When the coroner declined the request, Mrs Speck sought judicial review of his decision. She submitted that, to comply with Art 2, it was the coroner's duty to investigate these resource issues as they had possibly contributed to her daughter's death.

The application was refused. Mr Justice Holroyde (with whom the President agreed) considered that the Court of Appeal authorities and High Court decisions (including Lewis, Allen, Le Page and Wiggins) were clear and were all one way: a coroner conducting an Art 2 inquest had a discretion to investigate matters which might possibly have contributed to the death, but the only duty was to investigate those matters which had caused, or at least arguably appeared to have caused or contributed to, the death. The coroner had been entitled, and indeed obliged, to exclude any matter from the scope of the inquest where he concluded that it was so remote from the cause of death that it could not even arguably be said to have contributed to the death.

For Mrs Speck’s case to succeed she would have to show that there was a breach of duty to provide a HBPoS and that this arguably contributed to the death. However, the court found that there was no public body even arguably under a duty, statutory or otherwise, to establish a health-based place of safety. That there was a designated place of safety at the police station was sufficient to fulfill the state’s obligation.

Furthermore, that there was no HBPoS did not prevent the police taking Miss Speck to a hospital from the outset had they chosen to do so. It would be speculation upon speculation to say what would have occurred had a HBPoS existed: where it would have been; what resources and facilities it would have had; or who would have been located there at the material time.

As Mrs Speck was unable to show, even arguably, that the absence of a HBPoS was causative or contributory to her daughter's death, then investigating and commenting upon the appropriateness or otherwise of the non-provision of a HBPoS clearly fell outside the statutory duties under the Coroners and Justice Act 2009 s.5. It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.

Furthermore, even if the court had been persuaded that it was within the coroner's discretion to investigate these matters, there was no basis on which it could be said that the coroner’s decision not to do so was a perverse or an otherwise unlawful exercise of that discretion.

Commentary
With the advent of Art 2 investigatory obligations, the extent of matters falling within coroners’ inquiries has expanded unrecognisably in the past decade. However, whilst the investigation of matters relevant to the use of regulation 28 powers can bring important and welcome changes by public bodies, it cannot fall to individual coroners to investigate broad matters of political policy, funding and resource allocation where some causative connection to the death is not established.

The detention of mentally unwell people in places where they do not have ready access to mental health care is a matter of significant concern. Indeed, as the court stated, the desirability of having a health based place of safety was clear: but that did not mean there was a duty in law to provide one, or a duty on the coroner to investigate reasons for its absence. In the absence of any, even arguable, causative connection with the death it was not the role of an inquest to go into issues of policy and resources, particularly in respect of an NHS Trust that had ceased to exist several years before. Whilst the discretion of a coroner in respect of scope of an inquest remains wide, it would be unwise and also potentially unlawful for any coroner to allow the inquest to become a quasi (but inevitably procedurally flawed) public inquiry.

As counsel for the defendant coroner in this case neatly submitted in this case: the effect of s.5 and para. 7 of schedule 5 of the CJA 2009 is to divide potential issues at an inquest into three categories: those which a coroner must investigate, those a coroner has discretion to investigate and those which a coroner is not permitted to investigate.

Although the court found that HBPoS provision fell within the latter category, this did not mean there could be no investigation of the decision making in Miss Speck’s case. As the Admin. Court recognised, the police could have taken Miss Speck to hospital regardless of whether or not a HBPoS existed and so the decision to take her to a police station instead of a hospital could fall within the scope of the inquest. What failed was the Claimant’s attempt to use the vehicle of an inquest to challenge and to obtain jury comment upon wider policy and funding decisions.

In determining the scope of an inquest coroners will, at an early stage in their investigation, need to consider causation and distinguish between issues which at least arguably might have been contributory factors in the death, and those which could not even arguably be said to have made any real contribution to the death. It is of note that the Admin. Court rejected the Claimant’s argument that the coroner could not make such a decision before hearing the evidence. Had the Claimant been correct every coroner would have to hear all the evidence which any person interested in an inquest suggested could be relevant, however tenuous its connection with the cause of death appeared to be.