I was in York today for the final pre-inquest review meeting before Danny Tozer’s inquest. Danny was a fit and healthy young man, who liked nature, people and cups of tea. He was just 36 when he died in September 2015. Danny had a severe learning disability, autism and epilepsy. He lived in supported living provided by Mencap at 34 Maple Avenue in York and had lived there for just over two years at the point of his death.
At the last pre-inquest review meeting the coroner agreed to an Article 2 inquest, which ensures that the focus of the inquest is broader than just how and when Danny died. It will take into account the broader circumstances surrounding his death.
These wider circumstances fall into three areas.
- They are likely to focus on the nature of care Danny received at Maple Avenue, his care and support plans – whether they were appropriate, sufficient and actually followed; the involvement of his family; the administration of medication; staff training and the like.
- The events of the 21st September 2015 when Danny was found in his bedroom, the action taken by Mencap staff (and any actions not taken), the monitoring of his epilepsy and what happened after he was taken to hospital.
- Actions taken since Danny’s death, this falls to the coroner’s jurisdiction to make a Prevention of Future Deaths report under Regulation 28 of the Coroner’s Act.
Today the coroner had to make a decision on whether a jury would hear Danny’s inquest, the scope of it, witnesses and the length of inquest.
Mencap, still claiming to be the leading voice of learning disability, today argued in court that there should be no jury for Danny’s inquest. The arguments they used were as follows:
Firstly, that Danny was not in state detention at the time of his death because he was in a hospital.
Secondly, that there were compelling reasons of policy why Danny was not in the custody of the state and that he was manifestly free to leave from custody. Mr O’Brien’s suggestion was that it can not be said of someone deprived of their liberty in one setting, is still deprived of their liberty if moved to another setting for treatment. Mr O’Brien then gave a mini soliloquy about DOLS as a term of legal art. Which included the statements:
‘It would make an almost impossible position for the coroners court to be faced with where the coroner was seized of jurisdiction to order a jury, that the decision over when somebody was in state detention could be determined by clinical decisions outwith the legal process’.
The example he then gave was:
‘Somebody could be admitted into hospital and their family could decide three weeks later that treatment was futile. When is the dividing line for state detention actually reached? There are compelling reasons to say this type of case does not fall within the mandatory requirements’.
Mr O’Brien then took the liberty of interpreting what Danny’s family wanted from an inquest. He suggested:
‘None of the factors that Mr McCormack has made can be argued as magnetic. When you read the witness statement of the family, the skeleton arguments that have been previously submitted, the essential focus for them is the determination of failings by Mencap, failings by the City of York Council, potentially by the CCG, in terms of any obligations on them.
For that to be meaningful sir, if that is what is required, read the last two pages of the witness statement in that regard. Those are with respect sir not questions that should be asked of a jury. They are not questions that can be properly answered by a jury, they are matters that fall squarely within the experience of a coroner’.
So basically Mencap counsel argued that the common man and woman of York couldn’t understand right from wrong. My hunch is quite the opposite, that a jury would very easily spot what happened here.
The Mencap brief then argued that it would be unlikely to run to time if there was a jury and that jury members are unlikely to be able to sit for long hours. The suggestion was also made that nuanced points can easily be lost on juries once the day is ‘lengthened beyond what’s acceptable’.
The Coroner decided a jury was not required, but did make it clear that it was nothing to do with timescales.
The discussions then moved onto scope and once again Mencap, the leading voice of learning disability, made arguments to try and limit how thorough an investigation should take place. They suggested that the Coroner had to put a time limit on the history of evidence to be heard. Their exact suggestion was that it should be limited to the six months before Danny’s death.
One has to ask why they are so keen to close down the scope, and limit opportunities to identify what happened and learning that could be identified.
The other relevant point worth flagging is that Mencap have apparently ‘lost’ all the daily log records for Danny’s last six months of life. They claimed that they must have given them to City of York Council or the CCG for their investigations. They don’t have them. No copy was taken.
So we have counsel for the leading voice of learning disability arguing to close the scope, limit the audience, and restrict evidence to a period where they’re missing any daily documentation. Hardly a full, frank and detailed exploration of what happened.
The final indignity was Mencap arguing that they should dictate the timetable for witnesses, because they have a number coming and there are grave implications for those currently using their services.
The Coroner agreed to this request, with the rather frightening comment ‘Mencap will suffer the most in terms of lost personnel so I suggest they take on the timetable… we’ll work around them, it doesn’t trouble me if we jump around a bit, I don’t want to bring Mencap to a standstill’.
Man alive, Mencap to a standstill, to be honest might not be a bad thing for those still relying on their care. Mark Neary suggested to them back in June 2017 that they could do the right thing about Danny’s inquest, needless to say they just can’t.