R(Greenough) v Ministry of Justice

Judge: HHJ Pelling QC (sitting as a Judge of the High Court)

Citation: [2013] EWHC 3112 (Admin)

Summary: This case bears short note as an acute example of the dilemma that faces professionals confronted with a truly unwise decision. The Claimant’s brother, a Mr Shovelton, suffered from a history of alcohol and substance abuse, and poor health generally, having suffered from heart attacks, strokes and depression at various stages in his life. He had a history of self-harm and self-neglect as well. Between November 2011 and February 2012 there was a repeated pattern of discharge from hospital and some social work support, followed by further examples of self-harm and self-neglect which resulted in further admissions to hospital. The Claimant attended the hospital where the deceased was a patient. She asked for help in relation to the management of the deceased given the history of admissions to hospital following self-neglect and she was assured that the deceased would be noted as a vulnerable person. The local authority Housing Association informed the claimant that an emergency care package would be delivered. However, before that care package had commenced, Mr Shovelton discharged himself from hospital, against the advice of medical and nursing staff. As at that point, it appears from the witness statement prepared by the Coroner for purposes of the judicial review proceedings, the local authority considered that he had “mental capacity to decide where he should live and the local authority had no legal powers to prevent him from returning home. Furthermore, there has been a psychiatric assessment and the deceased had been assessed as not having a mental illness. The Wigan Council People Directorate also indicates that it was recognised the deceased was vulnerable and therefore considerable efforts were made to offer him appropriate support but the local authority was unable to exercise any legal powers.” The Claimant sought funding for representation on the basis that because it was likely to be necessary to enable the Coroner to carry out an effective investigation into the death as required by Article 2 of the European Convention of Human Rights. She was refused this funding, and sought permission to challenge the decision by way of judicial review.

In refusing the application for permission, HHJ Pelling QC noted that:

28. There is no evidence that the deceased died or died earlier than he might otherwise have done as a result of any failings on the part of the local authority to provide the care package. Indeed, there is no evidence as to what care package it was intended should be provided, so it becomes extremely difficult to analyse that issue with any degree of precision. The fact remains however, that the post mortem report on the deceased, as summarised by the Coroner, describes in fairly clear detail that the deceased was a chronically ill man, with severe heart disease, which had compromised his lungs and that his death was the result of that chronic ill-health.

  1. 29. In the absence of any material which suggests that potentially his death occurred earlier than it would have as a result of the failure by the local authority to provide the relevant care package (whatever that was) it is difficult to see how the Lord Chancellor can be criticised for failing to provide discretionary legal funding for representation at an inquest, and particularly when there is a decision yet to be taken as to whether or not the inquest should be in the more wide-ranging Article 2 compliant format.
  2. 30. I then return to the analysis of Smith LJ in Humberstone [R (Humberstone v The Legal Services Commission [2010] EWCA Civ 1479] at paragraph 58 and remind myself of the limited circumstances that can trigger the Article 2 duty. The deceased was not in the custody of the local authority or any other emanation of the State. The deceased was not a detained patient, or a voluntary patient in a mental hospital. He was a patient in a hospital who had fully [sic] mental capacity who discharged himself as he was entitled to. In summary most of not all the critical indicia of an Article 2 claim are not made out in the circumstances of this case. The deceased was not under the care or control of the emanation of the state concerned at the time of his death, and there is no evidence that what is alleged to have constituted the breach of duty (the failure to provide a care package or alternative accommodation more suited to his needs) was is any way causative of the deceased’s death, either directly or indirectly.”

Comment: The inquest (it appears) has yet to take place, so it is not clear the extent to which the Coroner will scrutinise the steps taken to assess Mr Shovelton’s capacity to decide as to his residence and care arrangements. Whilst we are acutely aware of the dangers of succumbing to the protective impulse identified by Baker J in PH v A Local Authority [2011] EHWC 1704 (COP), the (relatively) limited information provided in the transcript of this judgment would suggest – at least to us – that this will (or should be) a case in which the Coroner expects to see an extremely detailed assessment both of the capacity and of the steps taken to consider the legal options open to Wigan to secure a vulnerable adult against the consequences of his own actions.

CategoryMental capacity - Residence Date


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