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Is an independent investigation required into the death of a patient detained under the Mental Health Act?

The Administrative Court has recently had to consider this question in a judicial review, challenging the investigation into the death of Mrs Jane Antoniou.[1]

Mrs Antoniou died in October 2010 whilst detained under Section 3 of the Mental Health Act. An inquest into her death took place in 2012 with a Jury. Her husband brought judicial review proceedings (which were stayed pending the outcome of the inquest), alleging that Article 2 of the European Convention on Human Rights obliges the state to conduct an immediate and independent investigation into the circumstances of the death of a patient detained under the Mental Health Act prior to an inquest. Although in this case there was an internal NHS Trust investigation, there was no independent one. Additionally, the proceedings raised questions as to:

(a) If Article 2 does require an independent investigation prior to an inquest, can the absence of this be cured by the inquest itself?
(b) If the answer to that is “no”, then who was responsible for this breach?
(c) If the defect could be cured, was that achieved here?

A two-Judge Administrative Court dismissed the application for judicial review.

In relation to the suggestion that there should be an independent investigation of the death of a detained patient in order to comply with Article 2, the Court concluded that there was no domestic authority to support that proposition. Rather, the investigation of the death by a “Middleton” inquest will fulfil the State’s Article 2 obligations. The NHS Trust internal investigation was not independent, but this was only part of the investigation process which included the inquest.

Although the UK has instituted independent investigation systems under the PPO and the IPCC, the Court did not accept that it followed that the State must, as a matter of law, institute the same system to investigate the death of patients detained under the Mental Health Act.

The court said it was therefore self evident that there was no need to “cure” the lack of an independent investigation, as the internal investigation with the inquest was, taken as a whole, sufficient to fulfil the State’s obligation and thus the issue of cure did not arise. However, the Judges commented that if there had been an obligation to undertake an independent investigation from the outset, then a failure to do so could not be cured by another later investigation such as an inquest.

The Court also looked at whether on the facts of the case, the investigation up to and including the inquest met the State’s obligations under Article 2 and concluded that it did. Although the Claimant levied various criticisms at the investigation process, none of these were held to be fundamental. The Court held that the investigation process was not in breach of the State’s Article 2 obligations.

The Claimant also alleged unlawful discrimination against Mrs Antoniou as a detained mental health patient because of the (alleged) less rigorous method of investigation of her death. Article 14 of the ECHR, and sections 19 and 149 Equality Act 2010 were alleged to have been breached. However, the Court held that there was no unlawful discrimination here.


The decision in this case is clearly very helpful for those who have to investigate the death of patients detained under the Mental Health Act. If the Court had held that an independent investigation into the death of psychiatric patients was required, this would have imposed a significant cost on all mental health providers, and raised a difficult logistical question as to who would undertake such investigations quickly and on an independent basis.

The Judgment clearly supports the current process of internal investigation and, conjoined with the subsequent inquest, this will meet the requirement to investigate deaths imposed by Article 2 of the Human Rights Act.

Andrew Parsons
t: 020 7227 7282
October 2013


[1] R (Antoniou) v Central & North West London NHS Foundation Trust and others CO/7495/2011

(RadcliffesLeBrasseur represented CNWL)


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