UK: Article 2 Inquests

R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin)

Following the death of a young voluntary in-patient of a psychiatric rehabilitation unit who died from an accidental overdose of illicit drugs used at home during an agreed period of leave, the High Court has explored the circumstances in which a death might require an Article 2 compliant inquest.

The facts of the case

Tanya Morahan was aged 34 when she died in July 2018. The pathologist concluded that she had died of cocaine and morphine toxicity. She had a history of mental illness, since the age of 24, and had been diagnosed with paranoid schizophrenia and harmful cocaine use.

At the time of her death Ms Morahan was a voluntary in-patient at Colham Green Rehabilitation Unit (CGR), a community based open rehabilitation unit operated by an NHS Trust (the Trust). She had been detained for six months as patient under s. 3 of the Mental Health Act 1983 (MHA) following transfer from an acute psychiatric ward. On 25 June 2018 her s. 3 MHA detention, which was due to expire three days later, was rescinded and she became a voluntary in-patient.

On 30 June 2018 she left the unit, with her clinicians' agreement, but failed to return as required that evening. She returned the following evening 1 July 2018 at which time her drug screening was negative. On the afternoon of 3 July 2018, again with her clinicians' agreement, she left the ward, but failed to return. She was sadly found dead at her home on 9 July 2018.

Right to life protected by law

Article 2.1 of the European Convention on Human Rightsprovides that "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law."

Article 2 has been interpreted as imposing three distinct duties on states and those exercising state functions:

1. The negative operational duty to refrain from taking life without justification.
2. The positive duty to protect life, which has two aspects:
   1. To put in place an effective legislative and administrative framework to protect the right to life. This is known as the framework or systems duty.
      
   2. Positive Operational Duty - where the state agency knows or ought reasonably to know of a real and immediate risk to an individual's life it is required to take such measures as could reasonably be expected of it to avoid such risk.

In this context the term 'risk' means a significant or substantial risk, rather than a remote or fanciful one.For instance, in the case of Rabone v Pennine Care NHS Foundation Trust [2012] the risk in question was one of suicide and was quantified as being 5%, 10% and 20% on successive days, which was held to be sufficient. The risk must be "present and continuing" as opposed to "imminent" and it must be a risk to life rather than of harm, even serious harm. The term 'real' in this context focuses on what was known or ought to have been known at the time, because of the dangers of hindsight.

The test as to whether the positive operational duty has been engaged is a stringent one. Whether that duty has been breached will be harder to establish than mere 'negligence' because it is sufficient for negligence than the risk of damage be 'reasonably foreseeable', whereas the operational duty requires the risk to be 'real and immediate'.

3. There is an investigative duty to inquire into and explain the circumstances of every death. This investigative duty can be, in many instances, satisfied through the undertaking of a routine inquest which considers who the deceased was, where and when they died and 'how' they died.

Where there is the possibility of a breach by a state agent of one of its operational or systems duties, Article 2 requires there to be an enhanced investigation into the circumstances of the death. This is the enhanced investigative duty which would require an 'Article 2 inquest' also referred to as a "Middleton inquest" which is reference to the case of R (Middleton) v West Somerset Coroner [2004] which originally explained the parameters of this enhanced investigative duty. Such Middleton inquests go beyond the cause of death to explore the wider circumstances of the death, such as systems and policies in place by the emanation of the statement aimed at avoiding such risks from materialising.

The issue in this case

The defendant (the Coroner) opened an inquest and conducted pre-inquest review hearings at which, following written and legal argument, she held that there was no Middleton investigative duty, although she would keep the question under review.

On behalf of the claimant (Ms Morahan's family) Mr Bowen QC argued that:

1. the circumstances of Ms Morahan's death fell within a class which gives rise to an automatic duty to conduct a Middleton inquest because she was under the care of the state (the Trust);
2. alternatively that such duty arose because there were arguable breaches by the Trust of its operational duty to take steps to avert the real and immediate risk of Ms Morahan's death by accidental drug overdose, a risk which was, or ought to have been, known to the Trust.

Judgment

Popplewell LJ ruled, first, that the circumstances of the death did not, as the claimant had argued, automatically trigger the need for an enhanced investigation (as considered in R (Letts) v Lord Chancellor [2015]) and that the law should not be extended to a death such as this. There is no automatic enhanced investigative duty in the case of the accidental death of a voluntary psychiatric patient for two reasons:

1. The court did not accept that a voluntary psychiatric patient is to be treated in the same way as an involuntary detainee for these purposes.
2. Secondly, there is no justification for extending the automatic duty to cases of accidental death. The imposition of an automatic duty as a category exercise is only justifiable where all deaths in the category necessarily raise a legitimate suspicion of state responsibility.

The court decided, secondly, that on the evidence no operational duty under Article 2 arose. It could not be shown that there was a real and immediate risk of accidental overdose of which the state knew or ought to have known in order for an operational duty to arise at all. Moreover the Trust was not arguably in breach of a duty, if it existed, by reason of any failure to detain Ms Morahan prior to her leaving the unit on 3 July 2018 because they did not arguably have medical grounds for exercising any powers of detention.

Popplewell LJ confirmed that the existence and scope of the operational duty must not impose an impossible or disproportionate burden on state agencies in carrying out their necessary state functions and must take into account the individual's rights to liberty (Article 5) and private life (Article 8).

The other members of the court were Garnham J. and HHJ Teague QC (the Chief Coroner of England and Wales), both of whom were in agreement. The case will greatly assist Coroners and those representing families and other interested persons, including care providers and those operating secure accommodation, when considering the issue of the scope of an inquest, and the engagement of Article 2, in instances where the state, or an emanation thereof, has an involvement.