Tuesday, 30 June 2009

Court of Appeal Judgment

Dear All,

On Thursday last week, the Court of Appeal handed down their judgment in respect of our Appeal against the High Court's decision to refuse Permission for a Judicial Review of the Coroner's inquest after my mother's death.

Although the judgment will be an important one, their Lordships, headed by Lord Justice Dyson, refused the Appeal based on a very narrow interpretation of the law and facts. The judgment can be found online here: BAILII.

Importantly, they rejected the High Court's judgment that the duty to investigate a potential breach of Article 2 of the European Convention on Human Rights was not engaged. Indeed, they found that it was, and will now be engaged in all future cases of deaths in mental health detention.

Yet, they decided that the scope of such an inquiry was not very broad, and decided to limit this to those things which were arguable causative of death. They decided not to take into account the systemic failings which we alleged were occurring when my mother died, and instead chose to limit their judgment to finding that "nothing could have been done" to save my mother's life.

We think they have missed the point.

To simply reduce all the matters to a set of distinct failings - which they accepted were unacceptable - meant that the Court of Appeal has failed to understand the nature of the systemic failings that led to my mother's death. A key aspect of all inquests is to ensure that wrongs can be righted, and to protect future people from such situations occurring again.

Without a new and broader inquiry, taking into account the systemic failings in my mother's case, over 300 patients a year will continue to die while complusorily detained under the Mental Health Act. Lessons will continue to remain unlearnt. Mental health patients will continue to be unsafe, and future deaths will continue to be dealt with in a cursory manner. This is unacceptale in modern-day Britain.

My family and I are currently in the process of preparing our grounds to Petition the House of Lords for Permission to Appeal this latest, narrow judgment. We believe that the Court of Appeal are effectively saying that even though Article 2 was engaged, this means very little for the investigation of the deaths of mental health detention. This is surely wrong and is of significant public concern.

Juries currently hear inquests of all deaths that occur in custody. These inquests are generally broader, and usually take account of potential and alleged systemic failings. All we are asking for is the equal treatment of the deaths of mental health patients.

Unfortunately, it appears that legal aid may not be available for my family to continue our battle in the courts. We are likely, therefore, to have to deal with this final stage of the British courts systems ourselves. The fight for justice up to now has been long and hard, yet we believe that to discontinue now would be to give up. The implications for people across the country are too broad, and the case too complex, to make such a decision lightly, but we believe it is the only way to bring to light the shocking discrimination faced by mental health patients day in, day out.

This week, an average of 7 people will die whilst detained in mental health institutions in England and Wales. It is in their name, and the name of my mother, that we will continue to strive for justice.

Thursday, 18 June 2009

Legal Developments

The Appeal

The long-awaited hearing at the Court of Appeal finally took place last week, considering my family's application for a Judicial Review of the Coroner's investigation of my mother's death. After the procedural mishaps and the negative judgments in the High Court, signs were much more positive from the outset of the hearing before three of the most senior Lord Justices of Appeal in the country.

Back in September last year, Lord Justice Blake presided over an oral hearing to consider whether our application for a Judicial Review should be granted Permission to be heard. He refused to grant Permission, arguing that Article 2 of the European Convention on Human Rights was not engaged by the circumstances of my mother's death, and that, even if it was, the inquest had to be 'fundamentally flawed' before a fresh inquest could be ordered.

Without our barrister even having to argue against these two points, the Master of the Queen's Bench Division, who presided over the Appeal, provisionally indicated that Lord Justice Blake was wrong on both counts. This means that, for the first time since my mother died, the judicial system has accepted that the deaths of compulsorily detained mental health patients are subjected to a broad investigation under the European Convention on Human Rights.

Neither the Mental Health Trust nor the Coroner chose to be represented at the Appeal. Having indicated that Permission should have been granted for the Judicial Review to be heard, the next two hours of legal submissions by our family's barrister focused on why the original inquest should be overturned, particularly focusing on why it didn't meet the Article 2 requirements.

The Coroner, Dr. Reid, was roundly criticised for failing to hear key evidence on the policies and procedures in place at the time of my mother's deaths, including the failure of staff to be adequately trained in basic life support. In the absence of lawyers for the Trust or the Coroner, the bench challenged my family's legal submissions by suggesting that, even though the Coroner said that the Human Rights Act did not apply, the inquest may have been substantively compliant with the Article 2 requirements. Our barrister argued not only did it not comply with these requirements, but that it was lacking as a simple inquest.

The Court of Appeal then decided to Reserve Judgement and we are now eagerly awaiting their decision. The judgement, whatever way it falls, will be important in all future cases relating to deaths in mental health institutions. If the Appeal is granted, then a fresh inquest will then have to take place. If it is not, we believe that we have strong grounds for a further Appeal to the House of Lords, though obviously we hope that this is not necessary. Of course, details of the judgment will be posted here as soon as it becomes available.

And, after almost three years since my mother died, we found that that was not the only important development.

Coroners and Justice Bill - House of Lords

On the same day as the Appeal took place, the House of Lords moved onto its second day considering the complete overhaul of the Coroners system which has been outlined in the Coroners and Justice Bill.

In an excellent Amendment tabled by Baroness Murphy, she strongly argued that juries should be called in all cases where the deceased was detained or in the custody of the state.

The current position is that all cases of deaths that occur in custody, and those which potentially have future implications for the health and safety of the public, must be heard before juries. Yet, in manoeuvres which have been roundly condemned by human rights campaigners and charities alike, the Government wishes to make juries in these cases further limited, by arguing that not all require such a high level of public scrutiny.

Hitting back at this appalling viewpoint, Baroness Murphy spoke about my mother's death in detail, arguing that the public cannot have confidence in the state if the remote figure of coroner is allowed to hear such inquests on their own. Supported by a number of other members in the House, the central importance of juries in our judicial system was passionately argued for over an hour.

Yet, the Government refused to accept that such cases should be heard before juries, arguing that it was sufficient to leave such decisions up to Coroners themselves, and suggesting that the most important consideration was cost. Lord Davies and Lord Bach, the two Ministers responsible for the Bill, simply refused to respond to the points about the moral case for juries to be called.

In light of this, Baroness Murphy withdrew her Amendment, biding time to make an even stronger case for juries based on real figures, to be tabled again at the next opportunity when the Bill is being considered. I am currently working hard on producing a further briefing for members of the Lords to deal with these issues, to strengthen the case for juries to be called, and to highlight the complete inadequacy of the Government's position on this issue.

I shall, of course, put the briefing up here and will be asking for your support again in contacting members of the Lords to argue for this Amendment to the Bill. My family and I strongly believe that the deaths of people with mental illness have not been taken seriously enough - as my mother's case has shown - and that enough is enough.

Once again, thanks again to those of you who continue to stay engaged in this important campaign for justice.

Monday, 8 June 2009

Important Developments - Court of Appeal and Coroners Bill

There have been a couple of important developments over the last couple of weeks both in the Court of Appeal case and in the passage of the Coroners and Justice Bill.

In the case, we found out that the hearing which was ordered by Lady Justice Arden earlier this year had included a misdirection for only the matter relating to Permission for the Judicial Review to be heard. On further analysis, the Court found that it could also hear the substantive issue of the Judicial Review, namely whether or not a new inquest should take place, and this has today been ordered by Lord Justice Dyson, who will also be one of the judges to hear the case.

The hearing has been ordered to take place this Wednesday at the Court of Appeal. This means that the long battle by our family to have some of the issues relating to my mum's death will be, for the first time, argued in detail before some of the most senior members of the judiciary.

The Mental Health Trust has informed the Court that it will not be sending representation, presumably because they are washing their hands of the case or are writing off our chances. This sort of behaviour is, however, par for the course with the Trust and we will put forward a compelling argument for a full inquiry into their actions on Wednesday.

Please feel free to attend Court on Wednesday if you are free and willing. The hearing will take place at the Royal Courts of Justice on the Strand in central London at a time to be decided by the end of tomorrow and attendees are allowed to sit in the public gallery.

The Coroners and Justice Bill

In another important development, a list of Amendments to the Coroners and Justice Bill have been published and can be found online here - Parliament website. The Committee Stage in the Lords, which will begin tomorrow (9th June) and continue on Wednesday 10th, and also 23rd, is an opportunity for proposed Amendments to be debated and voted on.

Baroness Murphy, in an inauspicious but important Amendment, has called for lines 22-24 to be removed from the Bill. Effectively, this Amendment aims to remove the limitations on the calling of juries in the cases of people dying in state detention or custody. If the Amendment is successful juries would automatically be called in all such cases, in line with the calls that have been made by many of you, I and charities including Liberty and Black Mental Health. Many thanks to all of you who have been so active on this issue.

Anyone who wishes to attend the Committee should be able to get access to the public gallery of the House of Lords, and I will try to be there tomorrow too. Do let me know if you intend to come along by email - steven.allen -at- gmail.com.

Wednesday, 20 May 2009

New Letter for Lobbying the Lords

Dear All,

You can use the following letter to continue Lobbying the Lords. I've updated it and made it to reflect Lord Patel's contribution to the debate on the Coroners and Justice Bill on Monday. Many thanks for the support so many of you have shown in getting this Amendment to happen.

You can email the letter to Members of the Lords by visiting www.writetothem.com/lords. More background information can be found in the briefing I prepared which can be found here - Coroners and Justice Bill Briefing.


Dear xxx,

Coroners and Justice Bill - Investigating the Deaths of Mental Health Patients

I am writing to you personally to draw your attention to Section 7 of the Coroners and Justice Bill which outlines the cases in which it is proposed that a jury will be called to hear inquests.

I believe it is necessary to strengthen the clause to make sure that all deaths of mental health patients detained under the Mental Health Act 1983 are automatically heard before juries. Mental health patients are some of the most vulnerable people in our society and, particularly when they die whilst detained, there is a strong moral obligation on the part of the state to investigate their deaths.

The massively complex nature of psychiatric institutions mean that the deaths of mental health patients need to be investigated independently and impartially to ensure that families can have confidence in the system. Systems, procedures and the acts of individuals must be properly scrutinised and the requirement that a jury is present will not only prove that justice is being done, but that it is also being seen to be done.

Juries have consistently been shown to improve the confidence of public in our system of justice. That is why I am asking you to support an Amendment proposed by Lord Patel and Baroness Murphy to Section 7 of the Bill, requiring that juries are automatically called in these cases. Investigations into deaths in custody are currently heard before juries but Section 7 seeks to place a limit on this too - I hope you will support the case that juries must be a requirement in these inquests too.

The Bill will next be debated at the Committee Stage which is currently scheduled for the 9th and 10th June. I do hope that you will be present and feel able to support this important Amendment.

I look forward to hearing your opinions on this pressing matter of justice.

Yours sincerely,

Tuesday, 19 May 2009

The Coroners and Justice Bill - Lords to move amendment

In a debate that lasted over 6 hours yesterday in the House of Lords on the provisions of the huge Coroners and Justice Bill, the case that juries should be automatically called to hear inquests into the deaths of those detained under the Mental Health Act received support from Lord Patel, who also spoke on behalf of Baroness Murphy.

The Coroners and Justice Bill is a huge piece of legislation which, among other matters, seeks to: overhaul the coroners court system, amend the defences to charges of murder, create new rules about the investigation of findings of treasure, amend the Information Act and its enforcement provisions, regulate profiteering of criminals by their memoirs, clarify the laws on assisted suicide and regulate the internet on this, clamp down on 'pseudo'-photos of children and paedopilia, amend the legal aid provisions, set up a new regime of criminal sentence guidelines, amend the rules of evidence to give witnesses to crime greater anonymity, introduce new offences of hate speech in relation to homosexuality, deal with the position of suspected war criminals, and regulate conditional fee arrangements in employment law cases amongst other things. (No, I'm not joking!)

The breadth of the Bill was roundly criticised by members from all sides of the house of Lords as, amongst other things, a 'rag bag Bill', a 'Christmas tree Bill, some of the baubles of which will undoubtedly fall of,' and by Lord Ramsbothan in the following terms:

"My Lords, as I read through this monster Bill I had an image of a civil servant going round the Ministry of Justice pushing a trolley and shouting, “Bring out your dead!”, and people putting in it any old scrap of legislation that had anything to do with the word “justice”. Coroners were the first, and all the rest came later."

Yet, its importance in respect of overhauling the coroners system cannot be understated and, in this vein, Lord Ramsbotham made an impassioned plea that the rights of families are placed in the centre of the debate about the reforms.

Lord Patel made the case about juries being called where the person died whilst under the provisions of the Mental Health Act:

"Another problem is that the Bill withdraws the requirement for inquests into deaths in custody to be heard automatically before a jury. The noble Baroness, Lady Murphy, has extensive experience of inquiry panels into the deaths of detained patients in special hospitals for mentally disordered offenders and in NHS mental health units, and she will be greatly concerned about this part of the Bill. Again, I believe that there will be amendments to explore this further in Committee.

The Bill provides that deaths in custody and detention will be heard before juries only if one of a limited set of circumstances is satisfied. This is not sufficient to ensure that such deaths are fully and independently investigated or to give the public the confidence that justice is being done. Deaths that occur in state detention are often complex and may require the detailed scrutiny of systems and procedures as well as of individual acts, and these cases are always best dealt with by juries.
" [emphasis added]

The Bill will now go to a Committee of the entire House of Lords on 9th and 10th June, a crucial point when the amendment can be made.

I would like to thank all those of you who wrote to members of the House of Lords in advance of the debate and in support of my proposition that juries should automatically be called. It is undeniably a simple question of morality and the protection of the most vulnerable people in our society; as Lord Patel points out, just must be seen to be done in these cases.

The proposition is not simply a point of morality, however, it is based on experience. The coroner investigating my mother's death, as I've previously explained, was responsible for a miscarriage of justice in refusing to hear the significant systemic failures that lead to my mother's death whilst in hospital. My family had no lawyers and the coroner at complete liberty to disregard all of our well-evidenced allegations, even choosing to disapply the Human Rights Act.

This situation cannot be allowed to continue. Families do not expect their loved-ones to go into hospital, suffering from mental health problems, and die in the first place. Where they do, it is simply unjust to say that a coroner has the authority to entirely disregard unrepresented families' representations, often where there will be extremely difficult issues to deal with such as the complex nature of mental health institutions.

Juries are thus vital to ensure not only that justice is done, but that justice is seen to be done. Remote judicial figues sitting on their own cannot discharge this legitimate need and juries will give families the confidence that normal citizens are able to properly scruitinize the actions of the state.

Please keep writing to members of the Lords to support this amendment at Committee stage: you can email individual members directly at http://www.writetothem.com/lords.

Many kind wishes to you all,

Tuesday, 12 May 2009

Changing the Law

Dear All,

Following interest from a number of Lords, I have put together a Briefing Document arguing the case that s.7 of the Coroenrs and Justice Bill should be amended to ensure that all inquests into deaths of people in custody and state detention (including mental health patients) should automatically be heard before a jury.

Please feel free to use this in your own lobbying of the Lords too. The next reading of the Bill is due to take place in the Lords next Monday (18th May) and it would be fantastic if we could get an amendment proposed by then.

The briefing document can be found online here - Lords Briefing. (Click on the picture of the document, and on the next page choose 'download' where you can choose which type of document you want). Please let me know if you have any successes - as always, my email address is steven.allen -at- gmail.com.

Many kind wishes for you continuing support of this campaign.


Friday, 8 May 2009

Appeal to go ahead and Coroner's Bill

Although it has been some time since I have updated the blog, the case has been progressing and we can now announce that permission to appeal has been granted and that the appeal will go ahead on either 10th or 11th June. The case will be heard by the Master of the Queen's Bench Division and two senior judges who will decide whether the refusal of the High Court to grant a full Judicial Review was correct.

It has taken a considerable amount of time for us to get to this point, largely because of court delays. With the third anniversary of my mother's death approaching in November, we hope that it will not be another anniversary where we are left with the legal system grinding on without any end in sight.

Even if our appeal is successful, it would only mean that the case would then be sent back to the High Court to enable a full Judicial Review hearing to take place, a process which could again take months. Yet, my family and I remain entirely committed to pursuing our legal rights and bringing to light the appalling circumstances of my mother's death.

The Mental Health Trust has said that it will not take part in the Appeal as there has 'already been significant public expenditure' on this case. Whilst we have no desire to deal with the Mental Health Trust ourselves, we think the way they have approached the case thus far has been appalling, especially with regards to the delaying tactics they have employed in disclosing vital information.

The new evidence that came to light from the full disclosure of my mother's medical records turned out to be vital, and yet they have attempted to rely on these delays to suggest that the case should now lapse due to the 'passage of time'. Of course, we refuse to be insulted in this way and even the High Court judge was unimpressed with this ridiculous argument.

The Coroner's and Justice Bill is still going through Parliament and is currently awaiting the Lords 2nd Reading before a Committee and Report stage when it will become law. The duty to hold inquests in front of juries where the deceased was in detention or custody prior to death has failed to be amended to become automatic, meaning only deaths of a violent or unnatural nature will be investigated in this way. My family and I believe this will fail to take into account systemic problems such as those that affected my mother and believe the Bill should make all such inquests automatically before juries.

Please write to members of the House of Lords to urge that s.7 of the Coroner's and Justice Bill should be amended to make juries automatically required where a death has occurred in the custody or detention of the state.

You can email Lords easily by using the following link: Write to Them (Lords). Lords are not elected and so you can write to any Lord that comes to mind, or even send a messages to various Lords. To search for Lords with a particular interest, use the search engine and enter the words 'coroner', 'mental health', 'human rights' or anything else you think is relevant.

Here is the suggested text of the letter:

Dear Lord xx,

Coroner's and Justice Bill - protecting those detained by the state

I am writing to urge you to take part in the upcoming Second Reading of the Coroner's and Justice Bill which will take place on 18th May. As you are aware, the Coronial system is in desperate need of reform and this Bill has the potential to change things dramatically.

In particular I have read that s.7 of the Bill appears to be weakening the legal requirement for inquests to be held before juries where the deceased person was in the custody or detention of the state. The current position is that all deaths in custody are automatically heard before juries, in recognition of the fact that the state must be properly held accountable for all deaths that occur on its watch.

s.7 of the Bill currently states that inquests into deaths that have occurred in detention or custody will only take place before juries where the death was violent or unnatural (s.7(2)(a)(i)), where the cause of death is unknown (s.7(2)(a)(ii)), where a member of the police is involved (s.7(2)(b)(i) and (ii)), where the death was due to a notifiable accident, poisioning or disease (s.7(2)(c)), or otherwise where the senior coroner thinks there is sufficient reason for doing so (s.7(3)).

I am concerned that this means a large number of deaths which would previously have been investigated (e.g. deaths in prison) will not automatically be heard before a jury.

In addition to this, I believe that all deaths where the state is implicated (deaths in custody, as well as those relating to people detained under the Mental Health Acts) require the highest level of scrutiny due to the vulnerable position of prisoners and detained people in society. The state has a legal obligation to protect the rights of those in its custody and detention, as well as to fully investigate such deaths under the European Convention on Human Rights and the Human Rights Act.

I urge you to introduce or support an amendment to s.7 of the Coroner's and Justice Bill to make inquests concerning the deaths of those in custody or detention automatically heard before juries. The state must be seem to take such deaths seriously, including where there may be evidence of systemic failures which result in death, and this amendment would also give families more confidence that the state is prepared to take responsibility for properly investigating any problems.

I would be interested to hear your perspective on this and look forward to hearing the outcome of the debate on 15th May.

Yours sincerely,

Best wishes to you all,