KN Green Week: Can law help save the world?
At the end of the inquest in 2014 into the death of Ella Kissi-Debrah, the coroner concluded that this nine year old girl suffered an asthma attack, followed by a seizure, and died after unsuccessful resuscitation. This is one possible answer to the question of how Ella died. However, there is clearly a bigger question which needs to be answered.
Ella’s mother, Rosamund Adoo-Kissi-Debrah, learnt that the high levels of air pollution near their home in South London may have contributed to Ella’s asthma which, at the time of her death, had led to her admission to hospital on 27 previous occasions. In the years that followed, research linked the air quality in London to a range of serious health conditions including asthma, other lung conditions, cancer and dementia. Research concluded that some two million Londoners live in areas where levels of nitrogen dioxide exceed the EU legal limits. 4,000 Londoners were admitted to hospital between 2014 – 2016 because air pollution worsened their asthma or serious lung conditions, including 1,000 children. In relation to Ella, Professor Holgate of Southampton University produced a report confirming that these high levels of air pollution contributed to the cause and severity of Ella’s fatal asthma attack, and that there was a real prospect that she would not have otherwise died.
On the basis of this new evidence, Ella’s mother applied to the High Court under section 13 of the Coroner’s Act 1988 for a fresh inquest to be held in order to address a much bigger question - whether Ella’s death was caused by air pollution in London. The application, heard by the Chief Coroner sitting as a High Court judge (and supported by the original coroner who heard the inquest) was granted on 2 May 2019. A fresh inquest will be heard in which an answer will need to be found to this question.
It is highly unusual for an application such as that made by Ella’s mother to succeed. Although the test applied by the High Court under section 13 is broad, the court quashes only a handful of inquests every year. This exceptional decision in Ella’s case may reflect the broader public interest in this big question, not just for Londoners but for millions of people living in UK cities with similar levels of pollution.
The levels of air pollution in London are not just high, they are unlawfully high, given the Government has failed to comply with statutory limits for nitrogen oxide and other harmful particulates imposed for the purpose of preventing death [see our recent blog - Saving Londoners from nitrogen dioxide, one judicial review at a time]. For this reason, Ella’s mother also submitted to the High Court that the State had failed to comply with its substantive obligation to protect Ella’s right to life in compliance with Article 2 of the ECHR [see our recent blog - What is an 'Article 2 inquest' and why does it matter?]. Whether Article 2 is engaged in this case will be a question for the coroner during the fresh inquest. However, given Professor Holgate’s evidence was sufficiently clear and cogent to persuade the High Court to order a fresh inquest, it may be difficult for the coroner to resist broadening the scope of the inquest to consider this question.
Inquests come in all shapes and sizes with hearings ranging from hours to months. If Article 2 is engaged, there is no reason in principle why the coroner could not hear, and weigh up, relevant scientific evidence to reach a finding concerning the impact of London’s air quality upon Ella’s life, and to assess its contribution to her death. This evidence would be heard in public and, given the sharpened media focus upon air quality in London, it would likely to receive significant attention in London and nationally.
Ella may be the first person in the world to have “air pollution” recorded on her death certificate. Coroners are responsible for ascertaining the cause of death where individuals have come into contact with harmful substances, such as asbestos and carbon monoxide. There is no reason in principle why nitrogen oxide and harmful particulates in London air could not be recorded as a contributory cause of death. It would be significant step in acknowledging the impact of air pollution upon Ella’s life, as well as the millions of other children breathing the same air in London and other cities.
Alongside this conclusion, where a coroner has a concern that that circumstances creating a risk of further death will continue to exist in the future, they are able to issue a Prevention of Future Death Report (‘PFD Report’) to any organisation asking that it take action to reduce that risk (Regulations 28 and 29 of the Coroners (Investigations) Regulations 2013). There is no limit upon the concerns which a coroner can highlight within a PFD Report or the organisations to which it could be addressed. Further, the Chief Coroner acknowledges that the report need not be restricted to issues which were causative (or potentially causative) of the death being considered but can extend to anything revealed by the investigation which gives rise to concerns of continuing risk of death.
If the coroner concludes the unlawful levels of air pollution near her home in South London contributed to Ella’s death, it is clear that this risk remains for the thousands of children with asthma who continue to breathe the same toxic air. However, evidence suggests that this same air causes or exacerbates a range of other health conditions, some of which may be fatal in the young, old or otherwise vulnerable. There is no reason why a PFD Report could not be issued raising the coroner’s concern that unlawful levels of air pollution increase the risk of death for children with asthma, as well as this wider group of individuals.
The coroner would not need to specify the action to be taken but rather, the PFD Report would simply highlight that action should be taken. Whilst the report would not have the force of law, it would be published (and is likely to be widely circulated by the media). Any organisation to which the report is addressed must provide a response, which may also be published.
Although a single coroner’s conclusion concerning the unnecessary death of a young girl in south London will not persuade the Government to take the necessary steps to immediately reduce air pollution, it would certainly send a powerful message about the real life impact of its failure to act quickly enough on this issue.
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