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April 18, 2023

Court of Appeal orders a fresh inquest, to examine whether the failings of a government department had contributed to a woman’s suicide.

In 2017 Jodey Whiting, a 42 year old woman, died after taking an overdose of prescription medicine. She had been suffering with severe mental health problems. Her benefits had been stopped by the Department of Work and Pensions just weeks earlier.

An inquest was held and recorded, simply, that her death was a suicide. Despite sustained criticism of the DWP during the inquest, the coroner said that it was not her position to question any of their decisions and that such issues were outside the remit of her court.

Jodey’s family applied for a fresh inquest. They argued:

(i) that the coroner should have considered in greater detail the circumstances and impact of the stopping of her benefits; and

(ii) that the inquest had been insufficient for the purposes of Article 2 of the Convention for the Protection of Human Rights.

By s.13 of the Coroners Act 1988 a new inquest may be ordered where it is “necessary or desirable in the interests of justice”. The key factors for the court to consider are: the possibility of a different verdict, shortcomings in the original inquest and the need to investigate matters raised by new evidence.

Here, new evidence had become available since the original inquest. An Independent Case Examiner had considered the DWP’s actions and found there to have been significant failings in their handling of Jodey’s case. And  a psychiatrist had provided a report saying that there was a causal link between the DWP’s actions and Jodey’s state of mind immediately before her death.

The Divisional Court (which included the Chief Coroner) rejected the family’s claim. However, the Court of Appeal agreed with the family in part on their first ground of appeal and decided that a fresh inquest was indeed needed to look – in particular – into the causes of the deterioration of her mental health.

The CA found that there had been no evidence at the first inquest – other than the assertions of family members – to link Jodey’s death to the stopping of her benefits. That had now changed with the introduction of the psychiatric report. As a result, they found, it would be open to a coroner at a fresh inquest to find that the withdrawal of benefits contributed to a deterioration in Jodey’s mental health and, if so, to mention that in the record of the inquest. For example: “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 DWP”.

On the other hand, although the CA thought that the ICE report might well help in providing the background to Jodey’s suicide, they did not think it likely that the coroner would need to consider the specifics of individual errors and breaches of policy in the DWP, which would probably be outside the remit of the fresh inquest.

Giving the judgment of the court, Whipple LJ said: “I think it is in the interests of justice that [Jodey’s] family should have the opportunity to invite a coroner to make a finding of fact that the Department’s actions contributed to her deteriorating mental health and… to include reference to that finding in the conclusion on how Jodey came by her death”.

Her reasons?

(i) The issue was of real significance to her family – “it is reasonable for them to press for that matter to be investigated as part of the inquest… this is part of determining the ‘substantial truth’.

(ii) There was a public interest in a coroner considering the wider issue of causation – “if Jodey’s death was connected with the abrupt cessation of benefits by the Department, the public has a legitimate interest in knowing that”;

(iii)    The coroner might wish to submit a report to the DWP itself – “if the coroner concluded that the error had contributed to Jodey’s death, that would be a serious matter to which the Department should be alerted, in order that remedial steps can be taken. Indeed, it may be that the coroner will wish to hear from the Department at the second inquest about any remedial steps which have already been taken”.

What about the second ground of appeal by the family? Article 2 of the Convention (“right to life”) requires the state to take positive steps to protect life. This includes, in some circumstances, a requirement to take positive steps to prevent a real and immediate risk to life (including a risk of suicide). This is called the operational duty.

The family argued that Jodey’s deteriorating mental health had amounted to a real and immediate risk to her life and that Article 2 was therefore engaged at the time of the DWP’s failings However, the CA found that – while there was clear evidence as to her vulnerability – there was no evidence that the DWP (or indeed Jodey’s family) knew or ought to have known that this had reached the point at which it presented a real and immediate risk to her life. The case therefore fell outside the ambit of Article 2.

For now this decision gives encouragement to those who seek a more comprehensive record from the inquest as to why the deceased died. It certainly puts the reasons for a deterioration in mental health within the scope of an inquest, provided there is clear evidence to support it (and a family’s non-expert opinion is unlikely to be sufficient for this). It opens the door for a coroner to look more closely at issues of causation.

The arguments to increase the scope of Article 2, on the other hand, were ambitious. The finding sought by the family would have been a significant extension of the Article 2 principle and on policy grounds it is perhaps unsurprising that it was rejected.

Adam Vaitilingam KC