R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin)
ICLR
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The WLR Daily case summaries
Queen’s Bench Division
Regina (Morahan) v West London Assistant Coroner
2021 May 18, 19; June 11
Popplewell LJ, Garnham J, Judge Teague QC, Chief Coroner of England and Wales
Coroner— Inquest— Verdict— Voluntary inpatient of psychiatric rehabilitation unit dying of overdose of recreational drugs when at home in the community— Coroner refusing to hold enhanced public investigation— Whether automatic duty to conduct enhanced investigation— Whether coroner erring— Mental Health Act 1983, ss 3, 117 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 2
The deceased had a history of mental illness and had been diagnosed with paranoid schizophrenia and harmful cocaine use. From mid-May 2018 she was an inpatient at a community-based open rehabilitation unit operated by the first interested party, an NHS trust, initially as a detained patient under section 3 of the Mental Health Act 1983 following transfer from an acute psychiatric ward. On 25 June 2018 her section 3 detention, which was due to expire three days later, was rescinded and she became a voluntary inpatient. On the afternoon of 3 July, with her clinicians’ agreement, she left the ward, but failed to return. The first interested party asked the police to trace her and they visited her flat on 4 July, but there was no answer to repeated knocking. The deceased was found dead in her flat on 9 July. The defendant coroner opened an inquest and conducted pre-inquest reviews at which, following written and legal argument, she held that there was no duty to hold an enhanced investigation complying with article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant, the cousin of the deceased, sought judicial review of that decision contending, inter alia, that the circumstances of the deceased’s death fell within a class which gave rise to an automatic duty to conduct an enhanced investigation; alternatively that such duty arose because there were arguable breaches of a substantive operational duty owed by the first interested party to take steps to avert the real and immediate risk of the deceased’s death by accidental drug overdose, a risk which was or ought to have been known to the first interested party.
On the claim—
Held, claim dismissed. (1) The state was under a duty investigate every death, that being part of its framework duty under article 2 of the Human Rights Convention by way of positive substantive obligation. That duty might be fulfilled simply by identifying the cause of death or it might 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 was also a distinct and additional enhanced investigative duty which was usually, but not always, to be fulfilled by an enhanced investigation. The enhanced investigative duty was procedural, parasitic on a substantive duty and could not exist where there was no substantive duty. The circumstances in which an enhanced investigative duty, as a procedural parasitic duty, arose were twofold: (i) whenever there was an arguable breach of the state’s substantive article 2 duties, whether the negative, systemic or positive operational duties, and (ii) in certain categories of circumstances, automatically. The categories in which it had been identified as arising automatically included killings by state agents, suicides or attempted suicides and unlawful killings in custody, suicides of conscripts, and suicides of involuntary mental health detainees. Those categories had been identified by a developing jurisprudence and could not be considered as closed. The underlying rationale for the categories of cases which automatically gave rise to the enhanced investigative duty was that all cases falling within the category would 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 touchstone for whether the circumstances of a death were such as to give rise to an automatic enhanced investigative duty was whether they fell into a category which necessarily gave 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 that context legitimate grounds for suspicion connoted the same threshold of arguability as had to be satisfied in cases where the enhanced investigative duty did not arise automatically. In addressing whether a category of death automatically attracted the enhanced investigative duty, the type of death was important. Deaths from natural causes were not to be treated in the same way as suicides or unlawful killings. The automatic duty arose, in the categories of case to which it applied, only when and because every case in the category raised a sufficiently arguable case of breach of the state’s substantive article 2 duties. In that respect, the arguability threshold was no different from that which applied to non-automatic cases (para 122, 123).
R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653B, HL(E), R (Middleton) v West Somerset Coroner [2004] 2 AC 182B, HL(E) and R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2011] 1 AC 1B, SC(E) considered.
(2) There was no arguable duty to protect the claimant from the risk of accidental death by overdose of recreational drugs, irrespective of whether that was a real and immediate risk of which the first interested party was or ought to have been aware. Further, it was not arguable that there was a real and immediate risk of such death of which the first interested party was or ought to have been aware. Moreover, the first interested party was not arguably in breach of a duty, if it existed, by reason of a failure to detain the deceased prior to her leaving the unit on 3 July 2018 because it did not even arguably have medical grounds for exercising any powers of detention. Nor would the first interested party have been arguably in breach of a duty, if it existed, by reason of a failure to put in place a care plan pursuant to section 117 of the 1983 Act. That was because, as the wording of section 117(1) made clear, it imposed a duty to provide after-care services only following the patient leaving the hospital as a residential patient. It did not apply to services during periods of permitted temporary absence for a voluntary inpatient. Even if there had been an operational duty to protect against the risk of accidental overdose, in any event, there was no automatic enhanced investigative duty in the case of the accidental death of a voluntary psychiatric patient. First, a voluntary psychiatric patient was not to be treated in the same way as an involuntary detainee for those purposes. The determination of whether the enhanced investigative duty arose automatically was a category exercise, and the automatic imposition of the duty could only be justified if the circumstances necessarily engaged the justification for all persons falling within that category. Bearing in mind that the justification was a sufficient ground for suspicion of a breach of a substantive obligation by the state, that did not arise for those whose residence in a psychiatric unit was genuinely voluntary. If it did, there would be no principled distinction from a psychiatric outpatient. For the same reason, there was no justification for extending the automatic duty to cases of accidental death, as accidental deaths by overdose from the use of recreational drugs might occur without any suspicion of state responsibility by way of breach of a substantive obligation, just as might deaths from natural causes. Such deaths did not necessarily or in all cases involve the imbalance of knowledge which made it appropriate to impose the enhanced duty on the state (paras 124, 125, 134–137, 138).
R (Gentle) v Prime Minister [2008] AC 1356B, HL(E), Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72B, SC(E) considered.
Paul Bowen QC and Paul Clark (instructed by Leigh Day) for the claimant.
Alison Hewitt (instructed by the Head of Legal Services, Hammersmith and Fulham London Borough Council) for the coroner.
The interested parties did not appear and were not represented.
Benjamin Weaver Esq, Barrister
Referenced Legislation
Mental Health Act 1983, ss 3, 117
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 2
Full judgment: BAILII
Subject(s):
Date: 11/6/21🔍
Court: Court of Appeal (Civil Division)🔍
Judicial history:
Judge(s):
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What links here:- Inquests
- 39 Essex Chambers, 'MCA update - all the capacity news that’s fit to print for July 2021' (23/7/21)
- R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410
- Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022)
Published: 19/10/21 21:00
Cached: 2024-04-20 06:27:45