Dove v Assistant Coroner for Teesside  EWCA Civ 289 (17 March 2023)
Mrs Dove’s daughter took her own life after DWP benefits were withdrawn. In September 2021, the Divisional Court refused her application under s13 of the Coroners Act 1988 to quash the Coroner’s determination and direct a new inquest. The Divisional Court considered that the question of 'how' someone died in a Jamieson inquest was directed only to the means by which the deceased died, and did not encompass the wider circumstances of their death. In this case, the Court of Appeal considered the meaning of ‘by what means’.
In Middleton the House of Lords considered that a coroner determining ‘how’ a person died in a non-Art 2 inquest need only determine ‘by what means’ they died and not the broad circumstances. The meaning of ‘by what means’ has, however, remained elusive.
By way of background, Jodey Whiting died as the result of suicide having taken an overdose of prescription medication. She had a history of mental health problems, including depression and emotionally unstable personality disorder, and was in receipt of Employment and Support Allowance (‘ESA’). It was known to the DWP that she was vulnerable and had previously had suicidal thoughts. At her inquest, Mrs Dove expressed the view that the cessation of her daughter’s ESA, housing benefit and council tax benefit had contributed to the mental distress that led to her suicide.
The coroner held that Art 2 procedural obligations were not engaged and that the actions and decisions of the DWP fell outside the scope of her investigation, albeit on returning a suicide conclusion, the coroner did note within her factual findings that “Jodey had her ESA claim turned down in the weeks before her death” and that her family believed that “this caused extra stress that was a contributing factor in her death.”
Two pieces of evidence were obtained by Mrs Dove following the inquest: (1) a report from an Independent Case Examiner (the ‘ICE Report’) which found shortcomings in the handling of Ms Whiting’s case by the DWP and (2) an expert psychiatric report that expressed the opinion that there was likely to have been a causal link between the cessation of Ms Whiting’s benefits and her state of mind immediately before her death. It was in the light of this fresh evidence that Mrs Dove had sought a fresh inquest.
In dismissing the s13 application, the Divisional Court considered that the question of how someone died in a Jamieson inquest was directed only to the means by which the deceased died and did not encompass the wider circumstances of their death, meaning that ‘how’ Ms Whiting died had been properly recorded at the brief inquest.
The Divisional Court’s view regarding the psychiatric report was that whilst it postulated a causal link between the DWP’s failings and Ms Whiting’s state of mind immediately before her death, it did not establish a causal link with the death itself.
The Divisional Court considered that Art 2 obligations were not engaged. There was no operational duty owed to Ms Whiting as: (i) the DWP had not assumed responsibility for her; (ii) her vulnerabilities were not exceptional; and (iii) the risk to her life by suicide was long-standing. There was no arguable breach of the systems duty because the DWP’s failings had been individual in her case and not structural or systemic in nature.
When the case came before the Court of Appeal, it was no longer asserted that the coroner needed to carry out an inquiry into the DWP’s systems and policies since the ICE report served that purpose.
Mrs Dove argued that the Divisional Court had (1) adopted the wrong approach to causation by looking at whether the DWP’s failures directly caused Ms Whiting’s death rather than whether those failings were a more than trivial cause of her mental health deterioration and (2) drawn an artificial distinction between Ms Whiting’s mental health and her ultimate death since the former resulted in the latter.
Mrs Dove sought (1) a fresh Jamieson inquest to investigate the issue of causation in respect of the deterioration in her daughter’s mental health just before she took her own life, and (2) a finding that Art 2 obligations were engaged in any event.
The coroner’s position was that to direct a second inquest would result in coroners having to explore ‘why’ rather than ‘how’ someone died, necessitating inquiry into the causes of a person’s psychiatric problems in suicide cases, which would be a controversial task and fell outside the required scope of an inquest in any event.
The Court of Appeal agreed that the specifics of the DWP’s errors and policy breaches lay beyond the scope of any Jamieson inquest, however the question was whether the inquest should now consider the causative impact of the DWP’s admitted failings.
The threshold for causation of death is of course that on the balance of probabilities, the conduct must have more than minimally, negligibly or trivially contributed to it.
The Divisional Court was wrong to approach causation on the basis of whether the death would have occurred “but for” the particular act or omission. Causation in inquests is a broader concept, encompassing acts or omissions which contribute more than minimally, negligibly or trivially to death. It is therefore 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.
The Divisional Court’s error was that they suggested that mental health deterioration could be separated from death, the latter being the end point of the former. The way in which the abrupt cessation of benefits was likely to have affected Ms Whiting’s state of mind was an issue that was ‘well within the scope of a Jamieson inquest’. It not only went to the issue of intention, but would assist the coroner in the formulation of a narrative conclusion, to reflect the particular anxiety and distress suffered by Ms Whiting before she took her own life.
It would be open to a coroner presiding over a fresh inquest to find that the sudden withdrawal of benefits contributed to a deterioration in Ms Whiting’s mental health and record a brief, neutral, factual narrative conclusion such as: “The deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA by the DWP”.
The wide discretion conferred on coroners includes establishing the background facts and considering contributory factors before determining whether those facts were or were not causative of death. Restricting a coroner’s discretion to conduct whatever investigations are appropriate within the ambit of a Jamieson inquest to establish ‘how’ the deceased came by their death would be undesirable. Moreover, where suicide is raised as a possible conclusion, part of the coroner’s role is to investigate whether the deceased intended to take their own life and whether the deceased acted while their mind was disturbed (with that fact being recorded if it is established). The cause or causes of disturbance of the mind may be closely connected to the matters which are already before the coroner.
The Court of Appeal went on to consider whether it was necessary or desirable to have a fresh inquest. Having established the discretion to consider the impact of events on Ms Whiting’s mental health, the Court of Appeal went on to consider whether in this particular case it was ‘necessary and desirable’ to hold a fresh inquest (applying the s.13 ‘Hillsborough test’).
The function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires and to establish the ‘substantial truth’. In this case the extent to which the DWP’s actions contributed to Ms Whiting’s mental health was part of determining the ‘substantial truth’ and if the death was connected to the abrupt cessation of benefits, the public had a legitimate interest in knowing that. The judges were unanimous that the interests of justice required Mrs Dove to have the opportunity to invite a coroner, at a fresh inquest, to make a finding of fact that the DWP’s actions contributed to her daughter’s deteriorating mental health.
The Court of Appeal held that Art 2 was not engaged on the basis that the basic ingredients of an Article 2 operational duty (as outlined in Rabone) were not present. The fact that the DWP 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 all those with whom it has dealings.
1) The discretion as to an inquest’s scope remains with the coroner.
2) Whilst the touchstone of causation is important, when setting their investigation’s scope, it is still for the coroner to decide what ‘by what means’ actually means for each inquest.
3) When addressing the ‘how’ question a coroner may, and in some cases should, in the exercise of their discretion, go beyond a bare determination of the mechanism of death. A more detailed exploration of causation may be required to meet the interests of justice.
4) Causation in the context of an inquest means making a material (i.e., more than trivial) contribution, of which there must be evidence. The subjective opinion of the family is not evidence and will not suffice without more.
5) Where it is said that the state of mind of someone who killed themselves was contributed to by their partner’s infidelity, the interests of justice are not likely to require the affairs of individuals to be investigated in public at an inquest. However, where the shortcomings of a public body are said to have contributed to a deterioration in mental health, it is harder to see why a coroner would exercise their discretion so as to ignore this factor.
6) Even where Art 2 is not engaged, the bereaved family and the public have a legitimate interest in knowing how public bodies’ actions impact on citizens’ mental health.
A copy of the Court of Appeal judgment is here.