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Treating physical illness in mental health patients

<!-- wp:paragraph --> <p>Richard Copnall represented the family of Corinne Haslam at the inquest in March 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The coroner has now issued a prevention of future death report to the Secretary of State for Health and Social Care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The inquest explored the challenges typically faced by patients who are detained under the Mental Health Act (and in the care of NHS Trust A), but who also require treatment for a physical condition (provided by NHS Trust B).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the present case, both trusts operated on the same site at Tameside Hospital, but from different buildings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Haslam suffered from a respiratory condition. On a number of occasions, Trust A’s doctors sent Mrs Haslam to Trust B’s A&amp;E department only for her to be discharged back to Trust A. On the final occasion, her condition deteriorated in A&amp;E and Mrs Haslam died.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The coroner’s report identified the following concerns:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><!-- wp:list-item --> <li>The difficulty faced by Trust A’s doctors in obtaining the input of Trust B’s doctors, without having to transfer the patient to A&amp;E;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A&amp;E departments are typically busy environments which may not be conducive to delivering care to patients experiencing severe and enduring mental illness;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Trust A and Trust B operate incompatible systems for their medical records which obstructed the transfer of information and is inherently risky.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The division of care for physical and mental health conditions between two different NHS trusts is the norm and the difficulties highlighted in the coroner’s report are typical.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Secretary of State’s response, which is required by 15 September 2023, is eagerly awaited.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The prevention of future deaths report can be viewed <a href="https://www.judiciary.uk/prevention-of-future-death-reports/corinne-haslam-prevention-of-future-deaths-report/">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Richard was instructed by <a href="https://www.isonharrison.co.uk/our-people/gareth-naylor/">Gareth Naylor</a> of Ison Harrison.</p> <!-- /wp:paragraph -->

Court Of Appeal Clears Article 3 LOGJAM

<!-- wp:paragraph --> <p>The Court of Appeal has now handed down its long-awaited decision in the case of <em>AB v Worcestershire County Council and others</em> [2023] EWCA Civ 529. The decision provides important clarification of the Article 3 duties owed by local authorities to children in their area. However, the court did not take the opportunity to provide any guidance on the “threshold” of seriousness required for a breach of Art3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim was brought against two local authorities. AB lived in the defendants’ areas, with his mother until he was accommodated by the local authority, aged 11 and taken into care aged 12. Whilst in the care of his mother he was subjected to a number of incidents of abuse and neglect, which were recorded by the local authorities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first instance, the judge accepted the second defendant’s submission that a local authority owed no duty to children in its area under Art3, who were not under its “care and control.” This finding had been a surprise to most practitioners, flying, as it did, in the face of longstanding ECtHR authority (<em>E and others v The United Kingdom (33218/96), DP &amp; JC v The United kingdom (38719/97)</em>. Very sensibly, the defendants conceded this issue on appeal and that concession was endorsed by the court as having been correctly made [85]. Although not surprising, this development brings to an end 16 months of unwelcome uncertainty and will allow many cases to be resumed, which had been stayed pending the outcome of this appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment is the first occasion on which a domestic appeal court has considered the application of Article 3 to a local authority’s duty to protect a child from neglect and abuse. It provides a clear and concise statement of the test [57-63], which is likely to be useful to practitioners and trial judges.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court also noted [82] that: “<em>This is not a negligence claim where a court would be considering whether a …social worker had acted in accordance with a body of expert opinion…the question was whether “judged reasonably” [the defendants] had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment.. was a question for the court, not for expert evidence.</em>” This principle might prove useful for Claimants, particularly in historic cases, where social work practice at the time might now be thought&nbsp; to be woefully inadequate but might have satisfied the <em>Bolam</em> test.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal failed on its facts. The court upheld the finding that, whilst the Claimant was “<em>vulnerable and at risk of being subjected to poor and inconsistent parenting and neglect</em>”, he was not at a “real and immediate risk” of treatment of the kind prohibited by Article 3. In other words: his mis-treatment had not met the Art3 “threshold”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal was determined on the basis that the Claimant had suffered only seven relevant incidents over a period of nine years. The particular circumstances of those incidents should be ascertained from the judgment, but many practitioners might conclude that the frequency and severity of the incidents is towards the lower end of the range of cases with which they are involved. As such, the failure of this appeal on its facts is likely to have little, if any, effect on most claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In summary, the judgment:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><!-- wp:list-item --> <li>Confirms that a local authority owes an Art3 operational duty to children within its area, irrespective of the extent or absence of “care and control” and restores the law to its position prior to the decision at first instance;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Thereby removes the “logjam” caused by cases that had been stayed pending the outcome of that decision;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Sets out, and applies, the (well established) test for Art3 in the context of a “failure to remove” case against a local authority;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Notes that the assessment of the reasonableness of the defendant’s actions is a matter for the court, not expert opinion, and that, in effect, the defendant cannot avail itself of a <em>Bolam</em> defence;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Provides an illustration of a case in which the frequency and severity of incidents falls below the Art 3 “threshold”;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Does not take the opportunity to provide any guidance on the frequency and severity of abuse/neglect that would meet the “threshold.” This will be a matter of regret, but perhaps not surprise, for practitioners. The level of the “threshold” remains an open question and is one that will probably only be answered as a body of decided cases emerges over time.</li> <!-- /wp:list-item --></ol> <!-- /wp:list -->

Richard Copnall instructed to represent the family in the Inquest of Matthew Dale

<!-- wp:paragraph --> <p>Parklane Plowden’s Richard Copnall represented the family of a servilely disabled man who choked to death on his own incontinence pad.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Matthew Dale, 43, was found dead at Vancouver House on Vancouver Road,&nbsp;<a href="https://www.liverpoolecho.co.uk/all-about/netherley">Netherley</a>, at around 11.50 pm on December 27, 2020.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The severely disabled man choked to death on his own incontinence pad in the communal dining area. Although the NHS commissioners intended that he received one-to-one whilst awake, the care home only provided one check an hour after 8pm. The coroner found that this had been as a result of a misunderstanding between the commissioners and the care home.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Matthew had severe learning difficulties and autism he was blind in one eye and partially sighted in the other. He lacked capacity and was subject to DOLS. He was non-verbal and required round-the-clock care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The inquest into Matthew’s death started on the 18 January 2023 and concluded on the 25 January 2023. The inquest considered issues regarding funding, placement, risk assessments and the events which led to Matthew choking and the emergency response.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden’s Richard Copnall argued that the failures in Mr Dale's care amounted to neglect, and that both the care home and commissioners had breached <em>Article 2</em> of the <em>European Convention on Human Rights</em> - the right to life - both operationally and systematically.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Copnall said "There are two potential failures which are capable of amounting to negligence. The first is the absence of any system to prevent Matthew having access to his pad, such as the system used by his parents when he was living with them. The second is that Matthew was left alone, unsupervised at the time he put the fatal pad in his mouth.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At his inquest on Wednesday, January 25, Coroner Kate Ainge found Matthew died by misadventure, contributed to by a missed opportunity to identify his needs and indicated that she was considering issuing a prevention of future death report to the Secretary of State for Health and Social Care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After Matthew’s death, Vancouver House was placed under investigation by Liverpool City Council. In 2021 It was rated "inadequate" by the CQC and was later shut down by its owners, the Priory Group, which cited "significant staffing challenges".</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/">Richard Copnall</a> was instructed by Gareth Naylor of Ison Harrison Solicitors.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>You can read the full story <a href="https://www.liverpoolecho.co.uk/news/liverpool-news/disabled-man-who-choked-incontinence-26071324">here</a>.</p> <!-- /wp:paragraph -->

R (On the application of Jessica Morahan) v His Majesty’s Assistant coroner for West London and others [2022] EWCA Civ 1410

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/">Richard Copnall</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Tanya Morahan was 34 years old. Her first contact with mental health services was 10 years earlier, when she was diagnosed with drug induced psychosis. She was later diagnosed with schizophrenia and was treated as an inpatient on several occasions, including a number of detentions under the MHA. She was repeatedly assessed as posing a “high risk” to herself from drug use.  At the time of her death, she no longer satisfied the criteria for detention under the MHA and was a voluntary in-patient at a psychiatric unit operated by an NHS trust (“the Trust”). She had a history of illicit drug use but had been abstinent for many months. As a result of her abstinence, her tolerance to drugs had been significantly reduced. She failed to return to the ward as expected, following a visit to her flat. Some (unsuccessful) attempts were made to contact her and the police were alerted. Her body was found 6 days later in her flat. She had died a few days earlier from cocaine and morphine toxicity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The family invited the coroner to undertake an enquiry that would comply with the Art2 investigatory obligation. The coroner refused and the family sought a judicial review.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In June of last year, the Divisional Court (Popplewell LJ, Garnham J and HHJ Teague KC (the Chief Coroner)), [2021] EWHC 1603 (Admin) found that there was not, even arguably, a substantive Article 2 duty owed and therefore no Art2 investigatory duty arose. The family appealed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following a hearing in early July this year, the Court of Appeal has now handed down its judgment. Lord Burnett, Lord Chief Justice, Nicola Davies and Baker LLJ unanimously upheld the decision of the Divisional Court. Although the result may not come as a great surprise to many practitioners on its facts, the judgment includes some interesting, and perhaps problematic, <em>dicta</em>. It is essential reading for anyone practicing in the coroner’s court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court set out the following principles:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><li>Some categories of death, without more, trigger the investigative duty because the death necessarily gives rise the possibility of a substantive breach. An example of this is the death of a person in state detention.</li><li>The mere fact that the deceased was a voluntary psychiatric in-patient, does not place the death within that automatic category.</li><li>The existence of, and the defendant’s actual or constructive knowledge of, a “real and immediate” risk to life is a pre-requisite to the operational duty arising at all, (rather than being relevant to breach).</li><li>If an operational duty arises, it is to protect against particular risks to life, not all risks. &nbsp;</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The reasoning</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court found: “<em>44 </em>[Evidence that the deceased had lost her tolerance to drugs as a result of abstinence] …<em>does not support the proposition that <strong><u>at the time [she] failed to return to hospital</u> </strong>she was at a real and immediate risk of death…as a long-term drug user, she was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs. “Real and immediate risk” as a Strasbourg term of art is much more specific.” </em>(Emphasis added)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In other words: the defendant did not know (and could not reasonably have known) that the deceased was at a “real and immediate risk” of death from recreational drug use. Accordingly, there was no Art2 operational duty to protect the deceased from her cause of death and no (parasitic) Art2 investigatory duty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The finding that the Trust did not have knowledge of a “real and immediate risk” disposed of the appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>A missed opportunity </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Having decided the case on its facts (no knowledge of risk) the court chose not to offer any new guidance on how to identify the existence of an Art2 operational duty. The passage above expressly deals with the point in time at which she did not return to the ward. However, was there, for example, a “real and immediate risk” when the deceased took the drugs, or later still when she became unconscious? If a member of the Trust’s staff had been present at that time (and therefore had knowledge), would there have been an Art2 duty to intervene? Unhelpfully, the judgment does not ask or answer this question.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Delay and cost – a shot across the bows?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court noted that:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><li>The application (or not) of the Article 2 procedural obligation will not affect the scope of the investigation or the breadth of the inquest;</li><li>Arguments about whether Art2 applies often causes undesirable delay;</li><li>The underlying reason for this is that Legal Aid is generally not available unless Art2 applies;</li><li><em>“7. An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in Article 2 cases is sometimes overlooked. </em>T<em>his has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.”</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Although <em>obiter, </em>this is, perhaps, the most important passage in the judgment and may herald a change in coronial and judicial direction? For busy coroners struggling to balance their budgets whilst attempting to clear the Covid backlog, it will surely be seized on as justification for shorter (and cheaper) inquests, culminating in more limited conclusions. Possibly good news for public authorities (and the public purse), but maybe not for the families of the deceased?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practitioners might take away the following key points:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"a"} --> <ol type="a"><li>The death of a voluntary psychiatric in-patient does not, automatically give rise to an arguable breach of Art2. Whether there is an arguable breach will depend on the particular facts. On the facts of <em>Rabone</em> (where the voluntary patient would have been detained if she had tried to leave), there was an arguable breach, in the present case, there was not.</li><li>Where an operational duty arises, it does so in relation to a specific risk or risks of death, not all risks of death.</li><li>Actual, or constructive knowledge of a “real and immediate risk” of death is a pre-requisite to the duty arising (rather than an issue relating to breach).</li><li>In the present case, there was no actual or constructive knowledge of that risk, so no duty arose.</li><li>The judgment offers no new guidance on how to identify an Art2 operational duty in general, or specifically in relation to a voluntary psychiatric patient.</li><li>The court was critical of the cost and delay of arguments over Art2 inquests and of the increase in length and cost of inquests in response to the requirements of Art2. This may herald a move to shorter and cheaper inquests?</li></ol> <!-- /wp:list -->

Richard Copnall represented the family of Harry Sykes, in a 2 week inquest which concluded on 26 April 2022

<!-- wp:paragraph --> <p>Parklane Plowden barrister and inquest specialist, <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/" target="_blank" rel="noreferrer noopener">Richard Copnall</a> represented the family of Harry Sykes, in a 2 week inquest which concluded on 26th April 2022. Harry was a full time, state funded, 16 year old pupil at Halifax Elite Rugby Academy (“HERA”). He was taken by HERA on a 5 day trip to France to play against local teams and to encourage “bonding”. The trip included a visit to a man-made lake near Carcassonne on 5/9/18. Whilst at the lake, Harry drowned in just 2 meters of water, close to the beach.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The coroner found that the organisation of the trip was “inadequate” and “slipshod”, which resulted in confusion and uncertainty about supervision which was “at best sporadic”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The inquest heard that HERA was subject to no external oversight in relation to Harry’s safety on the trip, whether from the sport’s governing body (the RFL), the Department of Education (who paid for Harry’s tuition), or Loughborough College (through which the funding was channelled).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HERA benefitted from substantial state funding, without which HERA would not have been able to operate. The state funding also created a “halo”, which mislead parents into believing that HERA would be subject to appropriate oversight.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The circumstances of Harry’s death highlight the urgent need for parents to be made aware of the true nature of institutions like HERA and the absence of oversight of their “extra-curricular” activities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is understood that the coroner is actively considering whether to make a report for the prevention of future deaths.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Read articles covering the inquest:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><a href="https://www.bbc.co.uk/news/uk-england-leeds-61236883" target="_blank" rel="noreferrer noopener">Harry Sykes drowning: Lake trip organisation 'slipshod', inquest told</a>, <em>BBC News</em>, 26 April 2022</li><li><a href="https://www.thetelegraphandargus.co.uk/news/20092044.amp/" target="_blank" rel="noreferrer noopener">Coroner considering conclusion in teen Harry Sykes' inquest</a>, <em>The Telegraph</em>, 25 April 2022</li><li><a href="https://www.itv.com/news/calendar/2022-04-14/teenage-boys-organs-lost-by-french-authorities-after-rugby-tour-tragedy" target="_blank" rel="noreferrer noopener">Bradford boy Harry Sykes' organs lost after his death on rugby tour in France</a>, <em>ITV News</em>, 14 April 2022</li><li><a href="https://www.bbc.co.uk/news/uk-england-leeds-61071758" target="_blank" rel="noreferrer noopener">Harry Sykes: Drowned rugby player left behind by team- Inquest told</a>, <em>BBC News</em>, 11 April 2022</li></ul> <!-- /wp:list -->