“Not a surrogate public inquiry” | R (Morahan) v Assistant Coroner for West London  EWCA Civ 1410
The Court of Appeal is clearly frustrated. As it observed,
“An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in article 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings.”
Moreover, it expressed further concern that Article 2 arguments so frequently arise, and too often cause unnecessary delay. Given the fact – as here – Article 2 will usually not impact on the scope or breadth of an inquiry, this development is likewise unwelcome.
Morahan was just such a case. Ms Morahan was a voluntary psychiatric patient at Central and North West London NHS Foundation Trust. She had a long history of illicit drug addiction but had been abstinent for months prior to her death. On 3 July 2018 she left the unit to return to her flat. She was found dead a few days later. The cause of death was given as cocaine and morphine toxicity. The coroner ruled in September 2019 that Article 2 was not engaged. The Divisional Court agreed. In October this year the Court of Appeal did likewise. Now – four years after her death – the inquest may finally proceed.
The case helpfully summarised the current state of Article 2 caselaw. The court noted that certain categories of death will automatically trigger the procedural obligation under Article 2 but “it is only where the death falls into a category which necessarily gives rise to the possibility of a substantive breach”. The suicide of a prisoner is perhaps the paradigm example. This was not such a case.
The substantive duties owed by the State under Article 2 fall into two categories. First, the duty to establish a framework of laws and procedures to protect life. This appeal did not turn on this duty. The second was an operational duty – the so-called Osman duty – which may require the State to “take steps within its power to protect an individual from death.”
Such a duty may arise where there is a “real and immediate” risk to life. Whilst this is a necessary condition, it is not sufficient in itself. As Rabone v Pennine Care NHS Trust  2 AC 72 noted, certain other “indicia” which may support the existence of such a duty – if there had been an assumption of responsibility, if the person was vulnerable, and if the risk was exceptional, as opposed to an “ordinary” risk which people in such a position should run. If it arose, the operational duty is protect against a particular risk, not all risks.
Looking at Ms Morahan’s case, no operational duty arose. There was no real or immediate risk of death from such a cause. There was no history of accidental overdoses. She had achieved a long period of abstinence. As the Divisional Court noted, “the risk must be real, avoiding the benefit of hindsight”. The court also rejected the suggestion that an operational duty was owed to voluntary psychiatric patients to protect them from all risks of death. This was in effect an invitation to extend the duty far beyond the current state of Strasbourg’s caselaw. The Court of Appeal declined to do so in no uncertain terms.
The decision is unsurprising. However, the court’s lament against overlong inquests, delays, and pointless procedural arguments is worth remembering. It may well be worth observing an inquest is not a surrogate public inquiry the next time an interested person presses for an ever more expansive scope.
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