Capacity, autonomy and the limits of the obligation to secure life

Alex Ruck Keene KC (Hon) examines an important, but curious, case about the limits of the duties imposed by Article 2 ECHR on public bodies to seek to secure the life of individuals in the community.

R (Parkin) v His Majesty's Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin) concerned the inquest following the death of a Mrs Rosslyn Wolff, who was found dead in her home in 2022, following a domestic fire. A London Fire Brigade investigation team report concluded the most probable cause of the fire was unsafe use or disposal of smoking materials. Mrs Wolff had lived on her own; she was a hoarder, and the London Fire Brigade had multiple referrals for home safety visits over the years, although had managed to bring about the installation of a smoke alarm in 2019. She had come to the attention of the local authority after her son had raised concerns about her self-neglect and poor living conditions, and about her abusive treatment at the hands of another family member (who in turn was known to the local mental health service). An initial multidisciplinary assessment was carried out: no mental health concerns were identified in relation to Mrs Wolff herself, but “after much persuasion’, she agreed to a care package to support personal hygiene and medication compliance.” She had briefly been detained under the Mental Health Act 1983 on two occasions in 2021, but her symptoms of confusion were then diagnosed as not proceeding from mental ill health but from hyperglycaemia – the result of not maintaining her diabetes medication regime.

In October 2021, a multi-agency risk assessment conference of health and social care professionals reviewed Mrs Wolff’s circumstances. They noted no concerns over her mental health or capacity, but noted “ongoing risk presented by her unwise decision making.” These included that she had been “adamant in her expression of not wishing to engage in conversations about her environmental circumstances” – which included concerns about the state of her home: poorly looked-after dogs, dog mess, risk of electrical injury, risk of leaking water. It was noted there had been some progress with engagement with her allocated social worker, but this had had to be “very gentle” – “Rosslyn does not respond well to multiple offers of help or professional involvement.” An action plan was agreed, to include continued offers of follow-up and engagement with her social worker, and a fire assessment was to be made of her home by the fire brigade. Attempts by the social worker to visit were unsuccessful between October 2021 and Mrs Wolff’s death in January 2022.

The coroner had found that Article 2 was not engaged:

[19] Public bodies such as healthcare foundation trusts and municipal corporations are embodiments of the state for the purposes of recognising the possible application of Article 2 obligations. But the bare fact that such institutions may have interacted with the citizen does not thereby determine whether Article 2 is engaged.

[20] The relevant situations must be identified. That entails a consideration of whether there is evidence to suggest that Rosslyn was at the time of her death in state detention or in real and immediate risk to her life. Neither of those situations is shown on the evidence. The evidence is that she lived in her own home. She had declined additional intervention by the state. Her mental capacity had been assessed and she was deemed to have capacity. She was therefore entitled to exercise choice. She had the right to take unwise or inappropriate decisions. The state does not take on added duties or responsibilities in such circumstances.

[21] The evidence does not support the application to engage Article 2. Any shortcomings or failings which might be established can be investigated within a Jamieson inquiry and scrutinised if necessary within a Report to Prevent Future Death, or even a finding of neglect if the evidence proved as much. I therefore reject the application to engage Article 2.

Mrs Wolff’s son challenged this decision by way of judicial review. Collins Rice J disagreed with the coroner as to the risk, finding that that “real and immediate risk of harm” threshold was crossed, given that:

46. […] I am satisfied that the risk of death, not just the risk of harm, was inherent in the risk of a house fire at Mrs Wolff’s home, and the risk of a house fire was real, continuing and present – and recognised as such. There was nothing in her home environment, apart from the smoke alarms, recognisable as capable of limiting the effects of any house fire there to one of non-fatal harm alone. And the smoke alarms proved insufficient by themselves in the event.

However, this was insufficient, because Collins Rice J was not persuaded that the state had assumed responsibility for Mrs Wolff by the making of the care plan:

52. No doubt the public authorities in this case owed professional duties to Mrs Wolff. But it is not every case in which health and social care professionals draw up care plans for individuals, or patients spend time in hospital, that the Art.2 duty arises. Helping and supporting an individual, even in the discharge of legal duties, does not routinely give rise to the operational duty. Something more is needed. And it cannot just be a real and present risk to life because that is necessary but not sufficient for the duty to arise. (emphasis in original)

Further, in response to the submission that the Supreme Court in Rabone had observed that:

54. […]‘in circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state’. And I have reflected further on that. But this point has two important limitations.

55. First, the example given in Rabone of ‘sufficient vulnerability’ is that of a local authority failing to exercise its powers to protect a child at known risk of abuse. In those circumstances, the state’s power includes assuming control over the child (taking it into care). The child ultimately lacks autonomy in the matter; the necessary welfare decisions can ultimately be taken on its behalf. That was not Mrs Wolff’s situation.

56. Second, and relatedly, the qualifier of ‘sufficient’ vulnerability indicates that not every degree of vulnerability will be relevant. Mrs Wolff was from time to time referred to as vulnerable, and it is plain enough from the evidence that to a degree she was. She was not identified as vulnerable on account of her mental health. She did not, Mr Lay accepts, lack competence to make her own decisions about her lifestyle. She was identified as vulnerable as a victim of past domestic abuse (although that is not obviously ‘connected to’ the fire risk to her life). But her hoarding habit perhaps signals a degree of relevant vulnerability. And, importantly, her irregularity with her diabetes medication had certainly rendered her significantly vulnerable from time to time.

57. That raises the question of whether the degree of vulnerability which would support the inference of a state duty in respect of the risk to her life is made out on the evidence in this case. I have to bear in mind that Mrs Wolff was an adult of confirmed competence and psychiatrically sound mind, even though attempting further mental health assessment appears in her plan. She ran many risks with her health and safety. Aside from smoking, hers were socially atypical risk-taking behaviours. But she was fully informed as to the risks she was running, and targeted help to eliminate or mitigate them had been made available to her over a sustained period of time.

58. I also bear in mind that Baroness Hale JSC in Rabone (at [100]-[101]) underlined that there is no general duty of the state to protect an individual from deliberate self-harm, even where the authorities know or ought to know that it entails a real and immediate risk of death. The authorities are unanimous that the autonomy of properly autonomous individuals must in the end be respected. In my view, the situation is a fortiori in relation to consciously adopted behaviours which pose a risk of self-harm, and to self-neglect. If (and it is an important ‘if’) these are properly autonomous choices, and there is no state power to intervene and overbear them, then they fall to be respected. Indeed, they may positively demand to be respected, as an aspect of an individual’s autonomy protected by Article 8 of the Convention.

59. There is no evidence that Mrs Wolff’s choices were other than properly autonomous. She was plainly a risk to herself. There is evidence that she was to a degree vulnerable. But the fact that her behaviours, by general social norms, could be labelled unusual, unattractive, unwise or unreasonable – or even disorderly – is neither itself inconsistent with their being autonomous, nor indicative that her autonomy was materially compromised. I was shown no decided authority in which properly autonomous risk to the self was nevertheless made subject to implied transfer to the state by way of the Art.2 duty. On the contrary, the authorities point to the two being mutually exclusive. (emphasis added)

Collins Rice J considered that she did not have:

63. […] the authority of the decided caselaw for the extension of the [Article 2 operational] duty to the facts of this case. Mr Lay accepts that would not be squarely precedented. On the contrary, in my judgment the caselaw provides firm guidance that to do so would be to cross the proper boundary between personal liberty and state intervention.

64. The evidence is that Mrs Wolff was a fiercely independent lady of sound mind who did not want well-intentioned health and social work professionals judging or interfering with a lifestyle she was well aware was a risky one. The tragic circumstances of her death, and the natural dismay that this was, on at least some level, an avoidable disaster befalling an unfortunate and perhaps disadvantaged individual, do not mean it was one which it was the duty of the state to prevent.

Even if she was wrong in that, Collins Rice J found, the state had not breached the operational duty that would have arisen:

69. The authorities’ strategy was therefore necessarily long term, patient and opportunistic, based on nudging Mrs Wolff towards wiser choices, and making the most of such chances as she permitted for intervention. The evidence discloses no reason to expect that the execution of the December plan needed to be prioritised at a pace demanding renewed attempts at engagement over the particular few weeks in question – or that there was reason to believe it would have achieved anything relevant if it had. The fact that Mrs Wolff had given the fire brigade access more than two years previously to fit smoke alarms has to be seen in the context of her more recent sustained pattern of firm and settled reluctance to engage with any sort of state help. Her smoking habits were evidently deeply ingrained and her sofa was flammable. She had not long previously been given the clearest of reasons, and offers of support, for taking her diabetes medication. It is hard indeed in all these circumstances to see, on an evidenced basis, what more the authorities could have been expected to do that they did not do – and what basis they could have had for expecting it to have made a material difference if they had implemented their plan any more quickly.

Collins Rice J identified, as had the coroner, that:

72. […] that does not necessarily mean that the matters about which Mr Parkin is concerned cannot be addressed by other means. Issues of potential shortcomings or failings leading up to Mrs Wolff’s death can be investigated in the context of a traditional inquest and scrutinised if appropriate in a prevention of future deaths report. That can include identification of neglect, if any. So this is not necessarily the end of the road for pursuing his concerns. But as I have explained, my task is the narrow one of reviewing whether the Assistant Coroner was entitled to conclude that this was not an Art.2 case. I have set out my review and explained why, applying the caselaw guidance which binds me, I come to the same conclusion as the Assistant Coroner.

Comment

As noted at the outset, this is an important decision about the limit of the state’s obligations under the ECHR to seek to secure the life of individuals in the community. As Collins Rice J made clear in her conclusion, public bodies may well owe other obligations, for instance in negligence. Collins Rice J was, however, clear as to where she considered the boundaries of Article 2 to lie in the cases of those who are considered to have the capacity to make their own decisions and are exercising that capacity in ways which are risky. In its repeated references to Mrs Wolff’s decision-making as autonomous, it makes an interesting case study for the application of the “autonomous decision-making” test proposed by the Scottish Mental Health Law Review.

It is, however, a judgment which is somewhat curious both factually and legally.

The factual curiosity arises from a contemporaneous press report of the pre-inquest hearing, which had caught my eye for the somewhat startling proposition reported as having been put to the coroner that:

the law requires a person “must be assumed to have capacity unless it is established that they lack capacity”.

In the absence of a capacity test, he said it was right for Havering Council to treat Mrs Wolff as having capacity.

The second sentence is self-evidently wrong: the question is not whether a capacity “test” has been carried out, but whether “there is good reason for cause for concern [or] where there is legitimate doubt as to capacity” (Royal Bank of Scotland v AB [2020] UKEAT 2066 at paragraph 26). That submission logically must have been predicated upon a capacity assessment (presumably in respect of management of hoarding risk) not having been carried out. The press report also included a report of evidence given by the head of legal services at the mental health trust to the effect that “[t]he serious incident investigation report does acknowledge that Rosslyn did not have a formal capacity assessment relating to self-neglect and hoarding.”

I am always cautious about relying upon press reports, and it may well be that there was more going on than meets the eye. But on the face of it, what was set out in the press report stands at curious odds with the conclusion in the judgment of Collins Rice J (on which she placed such weight) to the effect that Mrs Wollf was “an adult of confirmed competence and psychiatrically sound mind” (emphasis in original). “Confirmed” competence (or capacity) or (as the coroner had put it) “deemed” capacity is a rather different beast to capacity that has been presumed.

I note, though, that Counsel for Mrs Wolff’s son appeared to have conceded that she had capacity in the material domains (see paragraph 56 above), so it may be that Collins Rice J did not have to descend in detail into the question of precisely how the conclusion had been reached by the various public bodies that Mrs Wolff had capacity in those regards.

The judgment is legally curious in that it did not involve any consideration of the inherent jurisdiction, which might be thought to be “state power to intervene and overbear” capacitous choices. The absence of such state power was considered to be of relevance by Collins Rice J. The decision of Cobb J in CD v London Borough of Croydon [2019] EWHC 2943 (Fam) might be thought to be a decision directly on point, concerning the use of the inherent jurisdiction to secure entry to a man suffering from self-neglect and declining assistance from the local authority. In that case Cobb J ultimately concluded that, in fact, he could make the order on the basis that CD lacked the relevant decision-making capacity, but confirmed that “CD is also a vulnerable adult within the meaning of the well-known Re: SA test, and that that route is or was an alternative available to the local authority on the particular facts of this case.”

There is no reference in the judgment in Mrs Wolff’s case to the inherent jurisdiction, so it is not possible to say whether it was something that was considered and ruled out by the statutory authorities. Views undoubtedly differ amongst both professionals and (more problematically the judiciary) as to whether and how the inherent jurisdiction can be used.[1] But it would perhaps have been useful for Collins Rice J to have squarely before her the fact that at least some High Court judges might well have taken an expansive view of the ability of the state to intervene had they been asked to consider the question of what to do before Mrs Wolff’s death.

Finally, we do not know from the judgment precisely how Mrs Wolff’s capacity to make decisions surrounding the management of hoarding risk was assessed, but this provides an opportunity to flag a further decision on this point, decided in 2023, but which has recently appeared on Bailii. In A Local Authority v X [2023] EWCOP 64, Theis J endorsed the approach to the relevant information previously taken in AC and GC [2022] EWCOP 39. The judgment is also notable for the careful way in which Theis J then proceeded having found that Ms X lacked capacity to make the relevant decisions:

105. I have reached the conclusion that X’s best interest are served by the local authority application being granted. In doing so I readily accept the considerable risks that are being taken in overriding X’s expressed wishes and the consequences for her of such a step being taken, bearing in mind her mental disorder and the suicide threats she has made. Those matters weigh heavily in the balance. Having said that, I consider the balance is tipped the other way by what I regard as the substantial and increasing risks X would be left exposed to if this order was not granted. They are serious risks that would have a direct impact on X’s health and safety. There is no prospect of any other step being taken that would bring about out any meaningful change. The evidence set out in the detailed contingency plan includes provision that would seek to mitigate the impact on X of what is proposed by the multi-disciplinary approach, where X would have the continuing involvement and support of the Official Solicitor and a hearing to review the next steps by the court.

Again, as with the decision of Cobb J in CD, the case also shows the extent to which the courts are prepared to roll up their sleeves when confronted with a dilemma such as that which was facing the statutory authorities in Mrs Wolff’s case. And, importantly, to do so at a time when it might make a difference, as opposed to looking backwards through the retrospectoscope.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] My cue to plug, again, the importance of the Law Commission picking up the work that it left off in the 1990s on this topic: “Vulnerable adults” – a last push – Mental Capacity Law and Policy.