Chadha v HM Senior Coronor for West London

The claimant in this case, Mr Chadha applies for permission to appeal against the order of Sir Stephen Silber made on 16 December 2016, dismissing his application for permission to apply for judicial review of the decision of the respondent Coroner not to investigate the death of the claimant’s wife.

The facts of this tragic case can be briefly stated. The claimant’s wife, Mrs Chadha, fell at home on 28 June 2011. As a result of her injuries, she was in a persistent vegetative state and remained in hospital for four years before she died on 25 March 2015. The Coroner certified the cause of death to be confirmed at an inquest. The decision to discontinue the investigation was made on 15 April 2015. Regrettably, the wrong cause of death was given. However that issue, though dealt with below, is not relevant for present purposes.

The decision under challenge was made on 24 May 2015. The Coroner said:

Mr Underwood QC now appears for the Claimant, who hitherto has been representing himself, and makes the following submissions in support of the fifth ground of challenge (the only one which is now pursued). He submits that the Coroner was bound to continue the inquest because no reasonable coroner could find that he could discontinue it, having regard to the facts and the proper application of the law, that is, sections 1(2), 4(2) and 6 of the Coroners and Justice Act 2009 (the 2009 Act) to those facts.

Mr Underwood points to two forms filled in by staff nurses at the hospital in which Mrs Chadha was a patient, which concerned capacity to consent to placement. In the first of these forms, dated in June 2014, Mrs Chadha was assessed as being unable to consent to treatment; further, in July 2014, the relevant hospital authority sought a deprivation of liberty authority in respect of Mrs Chadha under the Mental Capacity Act 2005.

Mr Underwood refers to P (by his litigation friend, the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 and The Queen (on the Application of LF) v HM Senior Coroner for Inner South London & Anor [2015] EWHC 2990 and to Lady Hale’s reference at para 8 of P to “thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere.” He refers further to the following observations of Lord Neuberger at para 49 of P:

Mr Underwood submits it is important to note that P is about living arrangements. The key question here he submits is whether this applies to someone in a persistent vegetative state, and whether they are in hospital in circumstances where this can properly be regarded as their living arrangements. It is plain he says, that the question whether there has been a deprivation of liberty in any particular case is fact sensitive and fact specific. A proper fact specific enquiry should have been undertaken in this case, but this did not occur.

His submission is that the threshold test for the application of section 1 (2) of the 2009 Act is low and the test is an objective one. In this case there were three reasons to suspect that Mrs Chadha was in ‘state detention’. First, tragically, she had been in a persistent vegetative state for four years. This was, therefore, her living state. Second, on the evidence of the forms to which I have referred, two staff nurses regarded the hospital as ‘detaining’ her. Third, Mr Chadha’s unanswered contention was that he had attempted to have his wife removed from the hospital, but the hospital would not agree.

Sir Stephen Silber addressed the fifth ground of challenge by the Claimant at paras 59 to 62 of the judgment below as follows:

And at para 65 he said this:

In so saying, he accepted the submission on behalf of the Coroner which was that whatever the ambit of the concept of “compulsory detention” there was no basis for saying Mrs Chadha was compulsorily detained at the time of her death. She had been admitted to hospital in 2011 after a serious injury which left her in a coma. From that time, she has not been confined to a place by compulsion, she was simply unable to move and was simply in receipt of essential medical care. The fact that she did not have capacity to consent to treatment and was therefore being treated on a “best interests basis” did not mean that she was compulsorily detained by a public authority. It was not clear whether there was in place an authority to deprive Mrs Chadha of liberty at the time of her death. Even if there was however that would not mean that she had, in fact, been deprived of liberty within the meaning of the Mental Capacity Act and Article 4 of the ECHR. She would only be regarded as deprived of liberty if she were “confined in a particular restrictive place” and “not free to leave:” see P at paras 22 and 49. In reality, she was not being kept confined, she was simply unable to leave hospital in the time she was taken there after her injury.

Simon LJ, gave these reasons for refusing permission to appeal on the papers:

I agree with both Simon LJ and of Sir Stephen Silber. Notwithstanding the careful and measured argument advanced by Mr Underwood, there was no legal error in Sir Stephen Silber’s approach and there is no real prospect of successfully challenging his decision. The renewed application for permission to appeal against his is therefore refused.