In this article, pupil Rebecca Henshaw discusses the recent appeal judgment in 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. The judgment can be found here.
“An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry.”
The history of this appeal is as follows:
Tanya Morahan died in June 2018 in her flat as a result of cocaine and morphine toxicity whilst under long-standing psychiatric care. She was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust (“the Trust”). She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. There was no basis for suggesting that Ms Morahan took her own life.
On 23 September 2019, the Coroner had given a ruling that there was no Middleton investigative duty. This was appealed by way of judicial review. The Claimant (the Deceased’s cousin) had argued before the Divisional Court that:
- There was arguably a substantive operational duty owed to Tanya, applying Rabone (voluntary assumption of responsibility, vulnerability and exceptionality of risk);
- The first question to ask is whether the circumstances of the death are capable of giving rise to the operational duty in principle, this being a necessary but sufficient precondition to the existence of the automatic enhanced investigative duty;
- As to whether there was a real and immediate risk of death of which the Trust was or ought to have been aware, this is a question which goes to whether there was a breach of such duty, not the existence of the duty;
- Therefore, an enhanced duty automatically arose;
- Alternatively, if the enhanced investigative duty did not arise automatically, it arose because there was an arguable breach of an arguable operational duty.
The Operational Duty
The Divisional Court reviewed the leading case law relating to the substantive operational duty: Rabone, Lopes de Sousa Fernandes, Fernandes de Oliveira and Maguire. An analysis of the Court’s view of those cases was undertaken by the editor of this blog here.
The Court of Appeal upheld the lower Court’s reasoning in full, which was as follows:
- None of the factors in Rabone were fulfilled in this case;
- These factors, contrary to the Claimant’s arguments, did go to the existence of the duty. The Claimant’s submission that these factors went to breach were “impossible” to reconcile with the judgment in Rabone. The Article 2 operational duty must avert a specific risk to life. Until this risk has been identified, it is impossible to answer the duty question;
- Voluntary patients do not all fall into the same category for the purposes of the existence of the duty. There is a spectrum as regards to treatment and detention.
- Following Maguire, whether the operational duty is engaged depends on the type of harm of which the individual is foreseeably at real and immediate risk. It is not solely about the nature of the relationship between the state and the individual.
- The foreseeable real and immediate risk of the type of harm in question is a necessary condition of the existence of the duty, not merely relevant to breach. Without identifying such 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.
- The nature of the control must be linked to the risk of the harm. As was observed by Baroness Hale in Rabone, the very fact of incarceration increased risk of suicide. 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.
The Investigative Duty
Popplewell LJ drew the following nine principles from a comprehensive review of the case law. Again, these were not disturbed by the Court of Appeal:
- 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 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.
- 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).
The Court of Appeal
The Claimant advanced the following Grounds of Appeal:
The Divisional Court erred in its conclusion that Ms Morahan’s death did not occur in circumstances in which the Article 2 operational duty was arguably owed by the Trust
The Court of Appeal reproduced in full Popplewell LJ’s findings on this issue, as to the Rabone factors and the medical evidence. The Claimant’s submission that the “real and immediate risk” went to breach rather than to duty was inconsistent with both Rabone and the Strasbourg caselaw.
As to risk, the Court found that there was no real and immediate risk of death from such cause of which the Trust was or ought to have been aware. Further, Ms Morahan was not at a real and immediate risk of death for the purposes of Article 2 when she failed to return to hospital. As a high-risk, long-term drugs user, she was at risk of harm and accidental death: “real and immediate risk as a Strasbourg term of art is much more specific”.
The Divisional Court erred in not concluding that an automatic duty to hold an Article 2 compliant inquest (a Middleton inquest) arose on the facts
To this the Court found that there was no authority which had decided that an Article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death. Ms Morahan was genuinely at liberty to come and go and this case was “far from …Rabone”.
The role of the national court was to keep pace with Strasbourg jurisprudence “no less, but certainly no more”. To argue that an automatic duty to an Article 2 compliant interest was owed to a voluntary patient at liberty to leave hospital and in respect of all causes of death was to “march ahead” of Strasbourg in this area.
Finally, R (L (A Patient)) and Smith make clear that it is only where the death falls into a category which necessarily gives rise to the possibility of a substantive breach that the automatic investigative obligation arises. This did not apply in this case, in which a voluntary patient was at liberty to leave hospital, and in respect of all causes of death.
The Divisional Court erred in concluding that there was no arguable breach of any Article 2 substantive duty.
There was no need to consider this, given the Court’s conclusions on the second ground of appeal.
The Court of Appeal unanimously upheld Popplewell LJ’s analysis, describing it as impressive, comprehensive and later “unassailable”.
Although this judgment will likely not come as a surprise, practitioners will want to assess the prospects of current cases carefully. The Court’s full endorsement of the reasoning below is authoritative. The distillation of the principles determinative to whether an Article 2 inquest will apply should be considered by both sides when assessing the prospects on this issue, and as the basis of their submissions at PIRs.
Over and above the endorsement of the Divisional Court’s reasoning, some further points of interest are as follows:
- The Court of Appeal was clear that any suggestion arising from R (Letts) v. Lord Chancellor  1 WLR 4497 that there were free standing categories not parasitic upon the possibility of a breach of a substantive obligation was incorrect. This built upon the rejection of this interpretation by the Divisional Court. The approach of the Claimant to say that the existence of the duty in the automatic cases is not linked to an arguable violation of a substantive obligation of state agents was incorrect.
- The Court of Appeal did not offer any further guidance on when an operational duty may be owed, including a passage from Osman v United Kingdom (2000) 29 EHRR 245 that not every risk to life can entail a requirement to take operational measures to prevent that risk: knowledge of a specific, real and immediate risk to life must be established. Clearly persuasive in this case, however, was the view that there were no grounds to detain Ms Morahan under the Mental Health Act 1983 on the basis of the preliminary evidence before the Court, and that there were no known risks of suicide or accidental overdose. Fresh evidence as to her risk levels having lost tolerance to drugs during abstinence did not support the proposition that at the time Ms Morahan failed to return to hospital she was at a real and immediate risk of death for the purposes of Article 2.
- Of interest to practitioners will be the Court’s note of frustration as to the battleground over Article 2, saying that the cases before it in recent years suggested that it was being lost that inquests were summary and inquisitorial. It was also being overlooked that the House of Lords in Middleton expected short conclusions in Article 2 inquests. This was leading to lengthy delays, substantial increases to the cost and length of inquests, and hard-fought pre-inquest reviews, which too cause delay. In any event, the Court found that a determination on Article 2 did not change the scope of inquests. It is notable the Court included the Claimant’s answer to these issues: legal aid is not generally available for the families of the deceased at an inquest, but is granted in some circumstances where Article 2 is engaged.
It is not yet known whether the Claimant will appeal this judgment and, of course, whether permission will be given. On the panel in the Divisional Court, with Popplewell LJ and Mr Justice Garnham was His Honour Judge Teague KC, who readers of this blog will know is the Chief Coroner for England and Wales. The Lord Chief Justice wrote the Court of Appeal judgment, to which the other Judges contributed.
Readers will be aware that the case of Maguire will be heard in the Supreme Court from 22 November 2022. This judgment therefore forms an important and authoritative contribution to the developing case law on Article 2 inquests and will no doubt feature in the Supreme Court’s consideration later this month.
To take away: the principles outlined by Popplewell LJ have been fully endorsed by the Court of Appeal and will be followed by Coroners, subject to developments in Maguire.