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Articles | Thu 17th Jun, 2021
In June 2020, I gave one of 1 Chancery Lane’s webinars on Article 2 Inquests, and what to expect if you are involved with one (you can watch the webinar here).
Shortly after, the Court of Appeal handed down an important judgment in R (Maguire) v Blackpool and Fylde Senior Coroner [2020] 3 WLR 1268, and I wrote an article about that decision here). Now the High Court has handed down an equally important judgment in R (Morahan) v Assistant Coroner for West London [2021] EWHC 1603 (Admin), which in my view will become the prevailing authority for courts considering whether or not the deployment of Article 2 (so, a Middleton investigation) is required. In both Maguire and Morahan, the courts declined to criticise the decisions of coroners that Article 2 was not engaged.
Popplewell J’s judgment is detailed, but particularly useful for practitioners, as it carefully sets out and discusses the legal framework in which important decisions are made by coroners. In particular, it discusses the previous authorities not just of the English courts, but the Strasbourg jurisprudence as well. In this article, I will set out verbatim some short sections of the judgment, as they succinctly deal with discrete points of law that I think will particularly assist lawyers who may be concerned that a coroner has made the wrong decision, or those arguing that Article 2 is not or should not be engaged.
Morahan arose out of a dispute as to whether there is a duty to hold a Middleton inquest following the death of a voluntary in-patient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community. Tanya Morahan was 34 years old when she died of a drug overdose at home. She had a long history of substance abuse and mental health problems. At the time of her death, she was a voluntary in-patient receiving treatment; she had been detained under s.3 of the Mental Health Act in the days preceding but that detention had been rescinded. Upon the permission of her treating doctors, she had left the Trust’s treatment centre, but was due to return. She did not. The following day, her body was found at home. Her family, appealing against the decision of the coroner not to hold an Article 2 Inquest into her death, argued that the circumstances of Tanya’s death fell within a class which gives rise to an automatic duty to conduct a Middleton Inquest; alternatively that such duty arose because there were arguable breaches of a substantive operational duty owed by the Trust to take steps to avert the real and immediate risk of Tanya’s death by accidental drug overdose, a risk which was or ought to have been known to the Trust.
In some respects the Judgment reads almost like a text book, so clearly explained are the central principles arising. For example, the explanation of duties on states and those exercising state functions:
(1) There is a negative duty to refrain from taking life without justification (see, for example, Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72 at paras 12 and 93). This arises not only at a state level but more commonly, in practice, at an operational level, and includes cases where an individual dies at the hands of an agent of the state, such as a police shooting. This may be labelled the negative operational duty.
(2) There is a positive duty to protect life which has two aspects:
(a) There is a duty to put in place a legislative and administrative framework to protect the right to life, involving effective deterrence against threats to life, including criminal law provisions to deter the commission of offences, backed up by a law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; and in the healthcare context having effective administrative and regulatory systems in place (Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 at para 28, Rabone at paras 12 and 93). This is the framework duty, of which the latter aspect is sometimes referred to as a systems duty.
(b) There is a duty, first articulated in Osman v UK [1998] 29 EHRR 245, to take positive measures to protect an individual whose life is at risk in certain circumstances. This is the positive operational duty. In R (L(A Patient)) v Secretary of State for Justice [2009] 1 AC 588, Lord Walker of Gestingthorpe observed at paragraph 89 that there is often no clear dividing line between this operational duty, and the systems duty below the national level.
(3) There is an investigative duty to inquire into and explain the circumstances of a death. As I explain below, there are two different investigative duties which have a different scope and different juridical basis. One is a substantive duty to investigate every death as an aspect of the framework duty; the other is a procedural obligation which arises only in some cases, and is parasitic on the possibility of a breach by a state agent of one of the substantive operational or systems duties. When the latter arises, it is a duty of enhanced investigation, to initiate an effective public investigation by an independent official body. This is the enhanced investigative duty.
The decision in Morahan was concerned with the positive operational duty and the enhanced investigative duty. Those duties, and their application in cases such as these, was discussed in some detail:
The positive operational duty arises where the state agency knows or ought reasonably to know of a real and immediate risk to an individual’s life, and requires it to take such measures as could reasonably be expected of it to avoid such risk (Osman paras 115, 116). In this context:
(1) Risk means a significant or substantial risk, rather than a remote or fanciful one. In Rabone 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 (see paras 35-38).
(2) An immediate risk to life means one that is “present and continuing” as opposed to “imminent” (Rabone para 39).
(3) The relevant risk must be to life rather than of harm, even serious harm (G4S Care and Justices Services Ltd v Kent County Council [2019] EWHC 1648 (QB), paras 74-75 and R (Kent County Council) v HM Coroner for the county of Kent [2012] EWHC 2768 (Admin) at paras 44-47).
(4) Real focuses on what was known or ought to have been known at the time, because of the dangers of hindsight (Van Colle at para 32).
(5) Overall, in the light of the foregoing considerations viewed cumulatively, the test is a stringent one (see Van Colle, per Lord Brown of Eaton-under Heywood at para 15; and G4S, paras 71-73). It will be harder to establish than mere negligence, but that is not because reasonableness here has a different quality to that involved in establishing negligence; rather it is because it is sufficient for negligence that the risk of damage be reasonably foreseeable, whereas the operational duty requires the risk to be real and immediate: see Rabone at paras 36-37.
It is also clear that the existence and scope of the 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): see Osman at para 116, Rabone at 104 and Fernandes de Oliveira at paras 111, 125, 131.
In considering whether or not the Trust owed Tanya a positive operational duty, Popplewell J considered Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72, in which Lord Dyson set out the factors to be considered in cases where it was asserted that just such a duty arose. As a reminder:
The four identified factors were:
(1) the existence of a real and immediate risk to life as a necessary but not sufficient condition for the existence of the duty (para 21);
(2) an assumption of responsibility by the state for the individual’s welfare and safety, including by the exercise of control (para 22);
(3) the especial vulnerability of the individual (paras 22 and 23); and
(4) the nature of the risk being an exceptional risk, beyond an “ordinary” risk of the kind that individuals in the relevant category should reasonably be expected to take (para 24).
She dismissed the argument of Tanya’s family that a “real and immediate risk to life” was an ingredient of the duty, but found that it was rather something to be assessed in consideration of whether or not the duty (if it existed) had been breached. The argument was not reconcilable with any of the three Judgments in Rabone or with the decision in Maguire to assert that the risk itself was a factor in the imposition of the duty itself:
Importantly, the family’s contention that Rabone is properly to be read as treating all voluntary psychiatric patients as falling into the same category for the purposes of the existence of the duty irrespective of their personal circumstances was rejected. This goes on to be the crux of the court’s decision as to whether or not an enhanced duty should have been imposed. In considering the important decisions in Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28 and Fernandes de Oliveira v Portugal (2019) 69 EHRR 8 as well as Maguire, the judgment clearly delineates the scope of the operational duty as it should be applied to those in voluntary detention as opposed to, for example, a prisoner. That is because the court considered that the authorities before clearly envisaged a link between the control of the state and the enhanced or specific risk imposed by the nature of that control:
Thirdly, in cases where vulnerable people are cared for by an institution which exercises some control over them, the question whether an operational duty is owed to protect them from a foreseeable risk of a particular type of harm is informed by whether the nature of the control is linked to the nature of the harm. A prison’s control over its inmates gives rise to an obligation to protect its detainees against suicide risks because, as Baroness Hale observed in Rabone, the very fact of incarceration increases such a risk. The control is linked to the risk. So too in the case of detained mental patients, where the detention gives rise to the increased risk of suicide whatever the nature of the mental condition being treated. The same is true of voluntary mental patients in relation to the risk of suicide where their residence at the institution is not truly voluntary if and because the mental condition for which they are being treated itself enhances the suicide risk. It does so not only as the potential result of incarceration, if not truly voluntary, but often also because, as was identified in both Rabone and Fernandes de Oliveira, the mental condition which the institution assumes control for treating impairs the patient’s capacity to make a rational decision whether to take their own life. The nature of the control is again linked to the risk of harm. Where, however, there is no link between the control and the type of harm, to impose an operational duty to protect against the risk would be to divorce the duty from its underlying justification as one linked to state responsibility. It would also undermine the requirement identified in Osman that the positive obligations inherent in article 2 should not be interpreted so as to impose a disproportionate burden on a state’s authorities. The control by the state could not justify the imposition of the duty by reference to state responsibility if the risk were of a type of harm which is unconnected to the control which the state has assumed over the individual. A psychiatric hospital owes no duty to protect a patient, whether voluntary or detained, from the risk of accidental death from a road traffic accident whilst on unescorted leave. [emphasis added]
Insofar as the argument made that there was an automatic enhanced investigative duty arising in Tanya’s case, the court carefully considered the line of authority in which the “automatic” element arises, focussing particularly on important decisions like Amin, Middleton, and Tyrrell. The conclusion was that for the enhanced investigative duty to be automatically engaged, the criteria that must be fulfilled was thus:
(1) 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.
(2) In certain circumstances there is also a distinct and additional enhanced duty of investigation which requires the scope of the investigation to have the minimum features summarised by Lord Phillips in Smith at paragraph 64. In this country the enhanced investigative duty is usually, but not always, to be fulfilled by a Middleton inquest.
(3) The enhanced investigative duty is procedural and parasitic on a substantive duty. It cannot exist where there is no substantive duty.
(4) The circumstances in which an enhanced investigative duty, as a procedural parasitic duty, arises are twofold:
(a) whenever there is an arguable breach of the state’s substantive article 2 duties, whether the negative, systemic or positive operational duties; and
(b) in certain categories of circumstances, automatically.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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).
The appeal was dismissed:
What will the impact of the Judgment be? Firstly, in my view, the decision very clearly demonstrates that the imposition of an automatic enhanced investigative duty in cases of accidental death, particularly those of voluntarily detained persons, is not a given. The “ratio” can clearly be seen from the final paragraphs set out above: there is a great breadth of situations in which a patient may be voluntarily detained. Each case will turn on its own facts, which is to say, that Melanie Rabone’s situation was markedly different from that of Tanya Morahan. Lastly, coroners are right to be careful when imposing an automatic investigative duty arising out of “state control” when there is little or no link between the “control” and the “risk” of death. In some ways this could be likened to the tortious concept of novus actus interveniens, where there is a break in the chain of causation. Those representing both families and public bodies will do well to carefully consider how this will affect their positions.
