R v Morahan [2021] EWHC 1603 (Admin) – Article 2 in Inquests: Revisited, Restated and Clearly Explained
The case of Rabone v Penine Care NHS Foundation Trust [2012] 2 AC 72 was significant in extending the state’s duties under Article 2 to voluntary mental health patients where they are sufficiently vulnerable, there is a real and immediate risk of suicide of which the hospital or trust were aware and where there is an assumption of control. In practical terms, it also extended the duty to hold a Middleton inquest following the death of patients meeting those criteria. Since Rabone, Coroner’s Court have seen a significant rise in Article 2 arguments following the death of those under psychiatric services, including both voluntary in-patients and those in the community.
The High Court in Morahan has now provided important clarification around where the Article 2 duty may arise, not only for voluntary psychiatric patients but also for any individual in the care of the state. The 46 page judgement from Popplewell LJ, Garnham J and HHJ Teague QC, Chief Coroner of England and Wales, gives a comprehensive examination of all of the key authorities on the application of Article 2 in inquests.
The High Court in Morahan has also tackled the difficult case of R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin), which has formed the basis of many a fall-back submission that the Article 2 investigative duty is engaged automatically, regardless of whether or not there is an arguable breach of the substantive duty. The High Court has put an end to that submission, restating that the investigative duty is parasitic upon an arguable breach of the substantive duty.
The facts
At the time of her death Tanya Morahan was a voluntary in-patient in a psychiatric rehabilitation unit with a history of mental illness and substance misuse.
On 30 June 2018, Ms Morahan left her unit for authorised leave but failed to return at the expected time. She returned 3 days later, at which time her drug screening was negative. Ms Morahan left the unit, again on approved leave, on 3 July 2018. Again, she did not return at the expected time. She was found dead at her home address on 9 July 2018. The pathologist concluded that she died of cocaine and morphine toxicity. The pathologist also opined that tolerance to opiate drugs can be lost rapidly during a period of abstinence, making it more dangerous to restart drug use.
The Coroner ruled that it was not a Middleton inquest, most significantly because in the absence of any evidence that Ms Morahan posed a risk of suicide, there was no real and immediate risk to her life which was or ought to have been known by the Trust.
The family, before the High Court argued: (1) There were arguable breaches of the 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 by the Trust. (2) Ms Morahan’s death fell into a class of deaths which give rise to an automatic investigative duty to conduct a Middleton inquest.
The Operational Duty
Article 2 imposes an operational duty on States to take reasonable steps to protect individuals from a real and immediate risk to their life of which the state was or ought to be aware.
The family argued (relying on Rabone) that whether or not there was a real and immediate risk to life is not an ingredient of the operational duty but is only relevant to whether or not there has been a breach. The Court rejected the submission (§48) and provided further clarity on the nature of the risk required.
Rabone should not be read as imposing an operational duty with regards to all voluntary psychiatric patients regardless of their personal circumstances (§49). The operational duty is not to take steps in the abstract but rather to take steps to avert a specific and identified risk to life. In Rabone that risk was one of suicide and was indicated by the patient’s history. There was no identified risk to life in this case.
The case of Maguire had provided further guidance about the types of risk against which the State has a duty to protect. Where a State institution exercises some control over a vulnerable person, there must be a link between the risk posed and the control exercised. It is not appropriate to impose upon the State a duty to protect an individual from a risk of a type of harm which is unconnected (§67), such as a risk of accidental death of natural causes. For psychiatric patients or for prisoners, the risk of suicide is increased by their incarceration or detention. In this case, there was no duty to protect Tanya Morahan from a risk of an accidental overdose.
The Investigative Duty
Since Middleton it has been clear that the investigative duty to conduct an effective public investigation as imposed by Article 2 may be fulfilled by a coronial investigation and inquest.
In R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin) Green J concluded that there are certain cases in which the investigative duty arises, more or less, automatically and the mere fact of death where there is a State involvement (such as custody or psychiatric detention) will trigger the duty to investigate.
Going all the way back to R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 the Court in Middleton confirmed that only where the death falls into a category in which the death necessarily raises the possibility of a substantive breach will there be an automatic enhanced investigative duty. It is the circumstances of the death and not the relationship with the State that is important. Such a duty is parasitic and arises because there is the potential for a breach of the State’s operational duty.
The Court considered the decision of Green J in Letts at length and ultimately disagreed with much of it. Whilst they agreed with Green J that there need not be evidence of an arguable breach of the operational duty, the investigative duty remains linked to an arguable violation of that operational duty. For custody or in-patient psychiatric cases, the increased risk of suicide requires an effective system to minimise that risk. Therefore, where a suicide occurs there will be an arguable breach (§105-114).
Conclusion
Paragraph 122 of the Morahan judgement is a must read. Popplewell LJ distilled and restated the principles applying to the enhanced investigative duty under Article 2 and when it arises automatically:
- There is a duty on the State to investigate every death. This is part of its framework duty under article 2 by way of positive substantive obligation. This duty may be fulfilled simply by identifying the cause of death. It may require further investigation and some explanation from State entities, such as information and/or records from a GP or a hospital.
- In certain circumstances there is also a distinct and additional enhanced duty of investigation … In this country the enhanced investigative duty is usually, but not always, to be fulfilled by a Middleton inquest.
- The enhanced investigative duty is procedural and parasitic on a substantive duty. It cannot exist where there is no substantive duty.
- The circumstances in which an enhanced investigative duty, as a procedural parasitic duty arises are twofold:
- whenever there is an arguable breach of the State’s substantive Article 2 duties, whether the negative, systemic or positive operational duties; and
- in certain categories of circumstances, automatically.
- The categories in which it has been identified as arising automatically include killings by state agents, suicides or attempted suicides and unlawful killings in custody, suicides of conscripts, and suicides of involuntary mental health detainees. These have been identified by a developing jurisprudence and these categories cannot be considered as closed.
- The underlying rationale for the categories of cases which automatically give rise to the enhanced investigative duty is that all cases falling within the category will always, and without more, give rise to a legitimate suspicion of State responsibility in the form of a breach of the State’s substantive Article 2 duties. The justification for the automatic imposition of the duty is not the wider rationale identified in Amin and Middleton, associated with the framework duty, of learning lessons with a view to protecting against future deaths.
- The touchstone for whether the circumstances of a death are such as to give rise to an automatic enhanced investigative duty is whether they fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect State responsibility by way of breach of a substantive Article 2 obligation.
- In this context legitimate grounds for suspicion connotes the same threshold of arguability as has to be satisfied in cases where the enhanced investigative duty does not arise automatically.
- In addressing whether a category of death automatically attracts the enhanced investigative duty, the type of death is important. Deaths from natural causes are not to be treated in the same way as suicides or unlawful killings. This follows from (6) and (7).
Kate Blackwell QC & Nikita McNeill
Categories: Newsletters
