John & Kelly Brennan v South London Maudsley NHS Foundation Trust and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mr Justice Collins |
| Judgment Date | 03 June 2015 |
| Neutral Citation | [2015] EWHC 1823 (Admin) |
| Docket Number | CO/1017/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 June 2015 |
[2015] EWHC 1823 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Bean
Mr Justice Collins
CO/1017/2015
In the Matter of:
Phillippa Kaufmann QC (instructed by BHATT MURPHY) appeared on behalf of the Claimants
Angus Moon QC (instructed by BEVAN BRITTAN) appeared on behalf of the First Defendant
Robert Moretto (instructed by GOVERNMENT LEGAL DEPARTMENT) appeared on behalf of the Second Defendant
Rose Grogan (instructed by NHS ENGLAND INHOUSE SOC) appeared on behalf of the Third Defendant
As approved)
Christopher Brennan was born on 9 December 1998. In 2012 he began to experience mental illness. In April 2014 his mental health deteriorated sharply.
On three occasions in July 2014, he was admitted to accident and emergency departments of hospitals after incidents of self harm.
On the third occasion, 22 July 2014, he was transferred to the Tyson Ward at the Bethlem Adolescent Unit, Bethlem Hospital, part of the South London Maudsley NHS Foundation Trust. He was admitted as an informal patient and not subject to compulsory detention under the Mental Health Act.
On 31 August 2014, while still on the Tyson Ward, he died. He had swallowed a deodorant top wrapped in tissue. He was only 15 and a half and his death is obviously a matter of immense sadness to his parents, his family and his friends.
The first defendants instituted an internal investigation under the serious untoward incident (SUI) procedure. The senior Coroner for South London, Serena Lynch, opened an inquest. There have been discussions, although we understand not yet a date fixed, concerning an inquest which may be held in December 2015. The indications are that a hearing of more than a week may be required and the Coroner is considering whether to sit with a jury.
It is agreed on all sides that this would have to be what is often referred to as a Middleton compliant or enhanced investigation.
On 23 December 2014, the solicitors acting for Christopher's parents wrote letters before claim to each of the three defendants to the claim. Their principal argument was that the internal investigation being carried out by the Trust was not the independent investigation which Article 2 of the ECHR requires, and that such independent investigation is required from the very start. It is not sufficient on the claimant's case that the investigation leads to an inquest conducted before Her Majesty's Coroner.
The defendants' response, again in similarly brief outline, was that this issue has been decided adversely to the claimant's case by this court, a Divisional Court consisting of Lord Justice Aikens and Mr Justice Mitting in the Queen on the Application of Antoniou v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin). They also took a secondary point: that in any event, the death of a patient who is an informal patient in a hospital such as the Bethlem Hospital may not require an Article 2 compliant investigation. Mrs Antoniou had been a compulsory detained patient.
I will assume for today's purposes, without deciding the point, that Christopher's status as an informal patient makes no difference.
Nevertheless, although a decision of one Divisional Court is not formally binding on another, in the way that decisions of the Court of Appeal are binding on that court under the doctrine of the stare decisis, I do take the view that Antoniou is a recent carefully reasoned decision of the Divisional Court, which we should follow. It is not suggested that there had been any supervening decisions of the Court of Appeal, the Supreme Court or either of the European courts which called into question the decision in Antoniou. The case put by Phillippa Kaufmann QC for the claimants is fairly and squarely that the decision was wrong.
The Antoniou case was itself the subject of an application for permission to appeal to the Court of Appeal. Initially permission was refused by Lord Justice Davis:
"4. I struggle with the whole notion that there must in law be an independent investigation from the outset into the death of a patient dying in circumstances such as applied to the applicant's wife. Nothing in the European authorities so requires. Nothing in the domestic authorities so requires. Here there was in fact an investigation from the outset: albeit it was not 'independent' in the sense required by the European jurisprudence. But the investigation was itself followed by, and indeed subject to scrutiny by, the undoubtedly independent and fully investigatory procedure of a public inquest. In cases of this kind the investigation undertaken has to be looked at as a whole, as the authorities make clear. Further, the European jurisprudence makes clear that it is for each state to devise their own procedures for discharging Article 2 investigation obligations.
"5. Cases decided at the highest level ( Smith, Middleton, Amin et cetera) are all against the applicant. L is on analysis not supportive of the applicant's case and is clearly distinguishable as there was no death and hence no inquest. On the authorities as...
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