R (on the application of Maughan) (AP) (Appellant) v Her Majesty's Senior Coroner for Oxfordshire (Respondent)

The Supreme Court has recently handed down judgment in this highly important case to local authorities. The primary issue to be determined in this matter was whether the applicable standard of proof in inquest proceedings in the case of suicide, was on the balance of probabilities (i.e. the civil standard) or beyond reasonable doubt (the criminal standard). Prior to the determination of this matter the civil standard of proof applied to all conclusions in the Coroner’s Court except for suicide and unlawful killing. Both of which required to be proved to the higher criminal standard of proof i.e. beyond all reasonable doubt.

The facts of the case were that James Maughan, the appellant’s brother, was a prisoner held in HMP Bullingdon. On 11 July 2016, James Maughan was found hanging in his cell. He was pronounced dead shortly afterwards. At the subsequent inquest into his death, the Senior Coroner invited the jury to consider a narrative verdict to the effect that James Maughan committed suicide on the balance of probabilities. The jury returned a narrative conclusion finding that it was more likely than not that James Maughan had committed suicide.

The appellant began judicial review proceedings challenging the jury’s determination and arguing that the Senior Coroner erred in law in instructing the jury to apply the civil standard of proof when considering whether the deceased had killed himself. The Divisional Court dismissed the application for judicial review, concluding that the standard of proof in all suicide conclusions is the civil standard. The appellant appealed that decision to the Court of Appeal, which upheld the Divisional Court’s judgment. The appellant again appealed to the Supreme Court.

The Supreme Court held that the civil standard of proof will now apply to all inquests in respect of all conclusions including suicide and unlawful killing. Local Authorities are likely to be particularly effected by this at inquests. As previously where other interested persons in particular bereaved families would have advocated for conclusions of neglect, they are now likely to seek a conclusion of unlawful killing. The tests for neglect and unlawful killing are similar as set out below:

Neglect – Is a gross failure to provide basic medical attention that more than minimally, negligibly or trivially contributes to a person’s death.

Unlawful killing - Gross negligence manslaughter - is described as a gross breach of duty that contributes significantly to the person’s death.

Unlawful killing - Corporate Manslaughter - is described as a breach of duty by an organisation in the way it’s activities are managed or organised that causes or contributes to the person’s death.

Prior to the Supreme Court’s judgment in Maughan whilst submissions in respect of a rider of neglect were relatively common. Submissions as to unlawful deaths were in the Coroner’s Courts quite rare. This is now likely to change as bereaved families seek a conclusion of unlawful killing. Inquests whilst being inquisitorial in nature at least in theory are in practice often adversarial. Further they are likely to become even more so now with interested persons more than ever seeking to apportion blame onto the other parties. Care providers and local authorities are also more likely to be represented given the risk of a conclusion of unlawful killing. Care providers are often represented with funding from their insurers and the frequency of such representation will only increase.

There are now clearly increased risks to local authorities when being made an interested person at inquests. With the lower civil standard of proof now applying to conclusions of unlawful killing these conclusions will be more likely and frequent which could then result in a follow on criminal investigation.

Families are also more likely than ever to be represented at inquests as the legal costs of bereaved families attending an inquest are now also recoverable in a follow on personal injury claim. As in the recent case of Greater Manchester Fire Service v Veevers, HHJ Pearce in judgment, noted that inquest costs were recoverable if they were incidental to the claim, and that the central issue here was whether the defendant had admitted liability or showed a willingness to satisfy the claim. If the position was not one of ‘unqualified admission’ then a costs judge was entitled to find inquest costs recoverable.

Local Authority Receives Adverse Finding by the Local Government Social Care Ombudsman for splitting up a couple who had been together for 59 years

An adverse finding by the Local Government & Social Care Ombudsman (Reference 18 015 872) has been made against the Royal Borough of Windsor and Maidenhead for splitting up a couple after 59 years together following the wife's discharge to a care home from hospital.

The finding follows a clear and complete failure in care planning by the local authority. The local authority in this instance failed to give due consideration to the couple remaining in the family home with the assistance of live in carers and decided to split the couple up by placing the wife in care. The finding shows the importance of local authorities always being required to consider the least restrictive option in terms of a person’s care setting. Clearly if a person can return home with a package of care then this is less restrictive than any placement in a care home, and hence is likely to be in the person’s best interests. Local authorities can of course when funding a person’s care take account of their resources when deciding on the level of any package of care they are to commission.

When Supported Living results in a Deprivation of Liberty

In the recently decided case of AB (deprivation of liberty) [2020] EWCOP 39 the Court had to determine whether P who resides in supported living was being deprived of her liberty. The court ruled that she was.

The facts of the case were that P lives in a flat in supported living where there is always support available at any time of the day and night. P is broadly at liberty to do as she pleases within her own flat. She is free to leave the accommodation but she is always seen by a member of the supervisory staff simply because of the nature of the property. P is required to reside at that property and thus if she fails to return the police would be notified. There is extensive support available but P is free to choose whether to take up the support on offer or not. Whilst P is able to choose whether to accept care and leave her supported living flat to access the community. P was it was held deprived of her liberty. Sir Mark Hedley held at paragraph 13 of his judgment that:

"In the end, and only after very careful consideration, I have come to the conclusion that these arrangements do indeed amount to a deprivation of liberty. The question of supervision and control must be viewed in the context of the prescribed condition of residence. Thus whilst she may be free to leave the property as she chooses, she is always subject to state control requiring her return should she be otherwise unwilling to do so. The fact that she generally willingly returns does not of itself negate this point. Again whilst the supervision of her coming and going is not intrusive, it is the fact that all her movements are known and noted. Moreover, while she is free to do as she pleases in the community, there will inevitably be some obligation to restrain or control those movements should they become seriously detrimental to her welfare. That control could lawfully be implemented without recourse to the Court."

Local Authorities should accordingly until such time as the Liberty Protection Safeguards are implemented in April 2022 continue to make applications to the Court of Protection to authorise any such deprivation of liberty in supported living by way of the streamlined Re X procedure.

Care Home Visitors

Whilst a great many care home residents have been deprived of family contact during the pandemic. The position is now clear that care home visits can take place and not just for end of life residents as previous guidance has suggested. Visits to care home residents can take place even in Tier 3 areas in England as long as care homes have completed a risk assessment for the resident. The environment in the care home must of course be suitable for visits and a visiting area should be available within the care home. In reality this may mean visits taking place in visiting pods in the garden or specially designed areas within the home but visits should be taking place.

The Vice President of the Court of Protection Hayden J has recently emphasised in an open letter dated 15 October 2020 the importance of such visits taking place.

Paragraph 5 of Schedule 1 of The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High)(England) Regulations 2020 provides the lawful authority for care home visits to take place as is set out below:

Exceptions in relation to indoor gatherings

5.—(1) These are the exceptions relating only to indoor gatherings.

Exception 1: visiting a dying person

(2) Exception 1 is that the person concerned (“P”) is visiting a person whom P reasonably believes is dying (“D”), and P is—

(a)a member of D’s household,

(b)a close family member of D,

(c)a friend of D.

Exception 2: visiting persons receiving treatment etc

(3) Exception 2 is that the person concerned (“P”) is visiting a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or is accompanying V to a medical appointment and P is—

(a)a member of V’s household,

(b)a close family member of V, or

(c)a friend of V.

Exception 3: informal childcare

(4) Exception 3 is that the gathering is reasonably for the purposes of informal childcare provided by a member of a household to a member of their linked childcare household (see paragraph 8)

Stop Press

The Vice President Hayden J's very recent judgment in the Michelle Davies Wigan case in relation to contact in care homes has become available in the last few days and is available on the link below to BAILI.

https://www.bailii.org/ew/cases/EWCOP/2020/60.html

In brief Hayden J confirms that in person contact should currently be taking place in care homes in accordance with the statutory regulations and in a Covid secure way i.e. visiting pods, window contact etc. There should be no blanket policies by care homes & local authorities preventing contact and instead bespoke care planning is required.

The judgment is very clear and the extract below is important in summing up the present situation:

The strength of the obligation to protect the rights of the individual, particularly the vulnerable and mentally incapacitated, is not in any way diminished by the pandemic health crisis; it is, if anything, enhanced.