In this article, Ed Ramsay discusses the recent case of Morahan, which deals with the issue of when the enhanced investigative duty under Article 2 of the ECHR will be automatically engaged in an inquest.
In an area of coronial law bedevilled by category distinctions that are inevitably easier to state than to apply, the High Court has recently made significant strides to clarify precisely when the enhanced investigative duty under Article 2 of the ECHR will be engaged automatically (and when it will not). R (Morahan) v HM Coroner for West London  EWHC 1603 (Admin) is a must-read for any practitioner in this area, not least because of Popplewell LJ’s comprehensive survey of the pre-existing jurisprudence in this difficult area.
The case concerned the death of 34-year-old Tanya Morahan from drug overdose on a background of historical and complex mental-health illness, previous detention under the MHA 1983, and, in the weeks leading up to her death, voluntary in-patient psychiatric care at a community based open rehabilitation unit (operated by Central and Northwest London NHS Foundation Trust, “the Trust”) to which she failed to return on 3 July 2018. She was sadly found dead at her flat on 9 July 2018. The Defendant Coroner opened an inquest and, following written and legal argument, held that s.5(2) of the Coroners and Justice Act (“CJA”) 2009 was not engaged.
The Claimant challenged the Coroner’s ruling, arguing that the circumstances of the death fell within a class of case giving rise to an automatic duty to conduct an enhanced investigation. Alternatively, it was argued that the enhanced investigative duty arose because of arguable breaches of the substantive operational (Osman) duty owed by the Trust.
After thorough traversing of the factual background, at [§29] Popplewell LJ provides a very useful summary of the basic framework of Article 2 in this area:
“The article 2 duties
29. Article 2.1 of the ECHR provides:
“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.”
30. Article 2 has been interpreted as imposing three distinct 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  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  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  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  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.
31. This case is concerned with the positive operational duty and the enhanced investigative duty.”
At [§36] the court summarised the Claimant’s arguments. In summary it was argued that the Deceased was owed, at least arguably, the operational duty applying Rabone (voluntary assumption of responsibility, vulnerability, and exceptionality of risk) and Fernandes de Oliveira v Portugal (2019) 69 EHRR 8. On the question of real and immediate risk of death of which the Trust was or ought to have been aware, the Claimant argued that this went only to breach, not duty. The Claimant argued that the existence of arguable circumstances for the imposition of the operational duty was necessary, but also sufficient, to trigger the automatic duty of enhanced investigation. In other words, arguable duty, not arguable breach of that duty. The Claimant relied on R (Letts) v Lord Chancellor  1 WLR 4497 in support of the proposition that such a duty could apply to voluntary psychiatric patients and that any extension covering cases of accidental death was principled and in line with what Green J held in Letts. Alternatively, if not automatic, the investigative duty arose because of arguable breach of the operational duty.
§38 provides a further useful summary of the Osman / positive operational duty
“38. 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  EWHC 1648 (QB), paras 74-75 and R (Kent County Council) v HM Coroner for the county of Kent  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.
39. 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.
40. In Osman it was said at para 115 that the operational duty exists in “certain well-defined circumstances”. However its boundaries have been the subject of developing jurisprudence both in the European Court of Human Rights (“ECtHR” or “Strasbourg”) and domestically. For present purposes, the decision of the Supreme Court in Rabone can be taken as the point of departure, in which Lord Dyson JSC observed at para 25 that the Strasbourg jurisprudence was young and the boundaries were still being explored; and that they might expand to include new categories of circumstances as giving rise to the operational duty as new factual circumstances were considered.“
The court then went on to review the previous case law relating to the operational duty, namely Rabone, and the flurry of recent cases – Lopes de Sousa, Fernandes de Oliveira, and Maguire. The court made several take-away observations when analysing each:
Rabone v Pennine Care NHS Foundation Trust  2 AC 72 (claim for damages brought by family of voluntary psychiatric in-patient who committed suicide when staff authorised a two-day home visit):
- the existence of a known or constructive real and immediate risk to life goes to the question of duty, not just breach – such an approach is “consistent with principle because the article 2 operational duty is not one to take steps in the abstract, but rather to take steps to avert a specific risk of life; until the specific risk to life has been identified, it is impossible to answer the duty question…So a risk of death from natural causes is not one which necessarily or ordinarily attracts the operational duty even for detainees. It is not all risks to life, or even all risks to life within limited categories [see §43], which attract the duty, but only real and immediate risks to life in those categories of which the state agent is or ought to be aware…” [see §§47-48];
- not all voluntary psychiatric patients fall into the same category for the purpose of determining whether the operational duty is owed – “in principle, the approach to whether an operational duty is owed to an individual ought not to be a category exercise, unless it can be said that everyone in the category will share the characteristics which justify the imposition of the duty. That cannot…be said of all voluntary psychiatric patients” [see §49];
- the reasoning in Rabone is specific to the risk of suicide (which creates the vulnerability in question, the need for hospitalisation, and is a function of mental impairment and lack of capacity).
Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR (case of alleged medical negligence in relation to physical illness)
- the operational duty (not the systems duty) applies in only two exceptional circumstances: (1) denial of access to life saving emergency treatment and (2) deprivation of access to life saving emergency treatment brought about by systemic or structural dysfunction in hospital services, but different considerations arise where medical treatment is given to persons deprived of their liberty or of particularly vulnerable persons under the care of the state where the state has assumed responsibility for their welfare [see §51].
Fernandes de Oliveira v Portugal (2019) 69 EHRR 8 (suicide of 36-year-old voluntary in-patient)
- As in Rabone, the relevant risk here was the risk of suicide – “The duty to protect against the suicide risk was linked to that being an aspect, indeed a major aspect, of the mental disability which gave rise to the hospital’s care for him as a resident” [§59];
- Like Rabone, the case is not “to be read as extending the duty to any voluntary psychiatric patient, [since] the consequence would be to impose a duty outside the circumstances of that case, and where the circumstances underpinning the previous jurisprudence, namely detention or assumption of responsibility for welfare, as summarised in Lopes de Sousa, would be absent. It would, for example, apply to impose a duty to protect a psychiatric patient attending as an outpatient from fatal accidents of a kind which routinely occur in numerous working environments” [§60].
R (Maguire) v Blackpool and Fylde Senior Coroner  3 WLR 1268 (unsuccessful claim for judicial review of coroner’s decision not to hold s.5(2) inquest relating to death of care home resident from peritonitis and pneumonia also suffering with severe learning disabilities whilst under a DoLS)
- Whether the operational duty is engaged involves looking at the type of harm of which the individual is foreseeably at real and immediate risk. It is not simply about the nature of the relationship between the state and that individual. “There may be an operational duty to protect against some hazards but not others” [§65];
- That risk goes to the existence of the duty, not merely to the question of breach. “Without identifying such a foreseeable risk of the type of harm involved, it is impossible to answer the question whether there is an operational duty to take steps to prevent it” [§66];
- Understanding whether a duty is owed to a vulnerable person involves assessing whether the nature of any control over them increases the risk to them. This applies to prisoners, detained mental health patients, and some voluntary mental health patients (all forms of incarceration increase the risk of suicide). Equally the institution may assume control over any mental health condition that impairs capacity and rational decision making. “Where 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” [§67].
Having traversed the case law in relation to the substantive duty, the court turned to the procedural / investigative duty and the question of when such duty automatically arises. As before, the court considered the relevant case law (as well as casting considerable doubt on the observations of Green J in Letts) [see §§68-121] and in a passage at [§122] which we suspect will become familiar, Popplewell LJ summarised the position succinctly (emphasis added):
“Conclusions on the enhanced investigative duty
122. Drawing the strands together, I derive the following principles as applying to the enhanced investigative duty and when it arises automatically:
(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).
123. The issue in this case was framed as raising the question identified in Letts as to when the enhanced investigative duty arises automatically in the absence of an arguable breach of a substantive obligation. My answer would be never. The automatic duty arises, in the categories of case to which it applies, only when and because every case in the category raises a sufficiently arguable case of breach of the state’s substantive article 2 duties. In this respect the arguability threshold is no different from that which applies to non-automatic cases.”
Applying the principles above, the court concluded as follows:
- No operational duty was owed to the Deceased to protect her against the risk of accidental death by the recreational taking of illicit drugs; none of the Rabone factors were fulfilled; no real and immediate risk of death [§124];
- Since there was no arguable operational duty, there could be no arguable breach of it [§125];
- Nor could there be an automatic enhanced investigative duty because any enhanced investigative duty is dependent on the existence of an arguable operational duty on which it is parasitic [§125];
- Even if the question of real and immediate risk goes to breach, not duty, there was no operational duty in this case since the other three factors in Rabone were missing: there was no relevant assumption of responsibility by the Trust for treatment of the Deceased in respect of drug addiction of a life threatening nature; nor was the Deceased relevantly “vulnerable” in the sense that her vulnerability was unconnected to the harm against which it was said that the Trust owed a duty to protect her, namely a foreseeable risk of accidental overdose; the risk was not exceptional – it was a risk to which the Deceased was exposed in the same way as any other recreational drug user (irrespective of her status as a patient); there was no “equiparation” of her position to that of an involuntary psychiatric patient (at least on 3 July 2018) approaching that question, properly, not as a category exercise and there were no medical grounds for compulsory detention [§§126-134];
- Even if an automatic investigative duty could be said to arisen independently of any operational duty to protect against the risk of accidental overdose, it did not do so for two reasons: (1) genuinely voluntary psychiatric patients (unlike in Rabone) are not in the same category as involuntary detainees and since determination of whether the enhanced investigative duty arises is a category exercise applying to all those falling in that category (where by reason of that category sufficient suspicion of breach of a substantive obligation is made out) it cannot apply to those whose residence is genuinely voluntary (like psychiatric outpatients); and (2) 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. Accidental deaths by overdose from the use of recreational drugs may occur without any suspicion of state responsibility by way of a breach of a substantive obligation, just as may deaths from natural causes. Such deaths do not necessarily or in all cases involve the imbalance of knowledge which makes it appropriate to impose the enhanced duty on the state” [§§137-138].
This case underlines the crucial point that for an automatic duty of enhanced investigation to arise the circumstances of the death must fall within a category of case which, without more, raises the suspicion of state responsibility for the death in violation of one of the Deceased’s substantive article 2 rights under the Convention. The litmus test remains arguable violation of at least one of those rights. There is no standalone duty of enhanced investigation for certain categories of case absent arguable breach. When considering whether the substantive operational duty is owed to a voluntary psychiatric patient, the right approach is not to treat the question as a category exercise, but to treat the matter as a category exercise when it comes to the procedural investigative duty (because not all voluntary patients are in the same category). Easy to state and, following this judgment, perhaps easier to apply.