R (Morahan) v HM Assistant Coroner for West London  EWCA Civ 1410
This case has been summarised on 39 Essex Chambers, 'Mental Capacity Report' (issue 127, November 2022).
The WLR Daily case summaries
Court of Appeal
Rex (Morahan) v West London Assistant Coroner
2022 July 6, 7 ; Oct 28
Lord Burnett of Maldon LCJ, Nicola Davies, Baker LJJ
Coroner— Inquest— Verdict— Voluntary inpatient of psychiatric rehabilitation unit dying of drug overdose having left unit— Whether coroner under duty to conduct enhanced investigation into death— Human Rights Act 1998 (c 42), Sch 1, Pt I, art 2
The deceased, who had a history of mental illness and harmful drug use, was an inpatient at a community-based open rehabilitation unit operated by an NHS trust. Initially she was detained in the unit under section 3 of the Mental Health Act 1983 but subsequently her section 3 detention was rescinded and she became a voluntary inpatient. However, shortly afterwards she left the unit, with her clinicians’ agreement, and failed to return. A few days later she was found dead in her flat due to an overdose of recreational drugs. Having opened an inquest into the deceased’s death, the coroner concluded that in the circumstances article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms did not oblige her to hold an enhanced investigation into the deceased’s death. The claimant, who was the deceased’s cousin, sought judicial review of that decision, contending 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 a duty arose because there were arguable breaches of a substantive operational duty owed by the NHS trust to take steps to avert the real and immediate risk, which ought to have been known to it, of the deceased’s death by accidental drug overdose. The Divisional Court dismissed the claim, concluding that the deceased’s death did not occur in circumstances that gave rise to an automatic duty to hold an inquest that complied with the procedural obligation under article 2 of the Convention. It rejected the argument that the procedural duty was triggered by the fact of her being a voluntary patient without more; and that the cause of her death was irrelevant. Moreover, the court concluded that “no operational duty was owed to [the deceased] to protect her against the risk of accidental death by the recreational taking of illicit drugs.” There was no real and immediate risk of death from such a cause of which the respondent Trust was or ought to have been aware. Finally, it concluded that even if such a duty existed, there was no arguable breach to give rise to the parasitic article 2 procedural duty. The claimant appealed on the grounds, inter alia, that the Divisional Court had erred (1) in its conclusion that the deceased’s death did not occur in circumstances in which the article 2 operational duty was arguably owed by the respondent Trust, (2) in not concluding that an automatic duty to hold an article 2–compliant inquest arose on the facts and (3) in concluding that there was no arguable breach of any article 2 substantive duty.
On the appeal —
Held, appeal dismissed. (1) The Divisional Court had rightly held that 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 relevant criteria had been fulfilled: there was no real and immediate risk of death from such cause of which the Trust was or ought to have been aware; there was no history to suggest suicide risk; there was no history of accidental overdose; there had been drug abstinence, evidenced by urine drug tests, throughout the deceased’s detention under section 3 of the Mental Health Act 1983 whenever she had had periods of unescorted leave. She had described her illicit drug taking prior to her admission as of limited intensity. It had to be kept in mind that the risk had to be real, avoiding the benefit of hindsight, and be a risk of death, not merely of harm, even serious harm. There was nothing to suggest that permitting the deceased to continue her rehabilitation into the community after her absence gave rise to a real and immediate risk of death by overdose. It was not the case that the question whether there was a real and immediate risk of death ought to be considered when an assessment was made of whether there had been a breach of the operational duty, rather than as an ingredient in whether the duty existed. That submission was inconsistent with authority. It was a necessary but not sufficient condition for the existence of the duty. The reality was that, as a long-term drug user, the deceased was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs: but “real and immediate risk” as a Strasbourg term of art was much more specific (paras 41–44, 51).
Rabone v Pennine Care NHS Trust (INQUEST intervening)M; B, SC(E) applied.
(2)There was no authority which decided that an article 2 operational duty was owed to voluntary psychiatric patients to protect them from all risks of death. The risk of death in the case was accidental death from the recreational use of drugs of a voluntary patient who was genuinely at liberty to come and go. It was far removed from the circumstances in a case where the very purpose of being in hospital was to protect against the risk of suicide. Furthermore, a domestic court ought to follow the “clear and constant” jurisprudence of the Strasbourg court; and the duty was to keep pace with Strasbourg jurisprudence as it evolved over time, no more, but certainly no less. A national court ought not to get ahead of Strasbourg: in part because an aggrieved person could go to Strasbourg and try to persuade the court to expand the reach of a Convention right; but by contrast a state party to the Convention could not take a case from its national courts to Strasbourg to complain that the national courts went too far. The claimant’s case entailed an invitation to march ahead of Strasbourg in that area, an invitation which, on authority, had to be refused; and the present case was not one of those cases where the application of well-established Strasbourg jurisprudence led compellingly to a particular development. Moreover, it was only where the death fell into a category which necessarily gave rise to the possibility of a substantive breach that the automatic investigative obligation arose; and that was self-evidently not the case with a voluntary patient at liberty to leave hospital and in respect of all causes of death. That contrasted with the range of cases discussed in the authorities and identified by the Strasbourg Court as falling within the automatic category, including voluntary psychiatric patients being treated to manage suicide risk, who would be detained were they not to remain in hospital (paras 46–49, 51).
Rabone v Pennine Care NHS Trust (INQUEST intervening)B, SC(E) distinguished.
R (Ullah) v Special AdjudicatorB; B, HL(E), R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) B; B, HL(E) and R (AB) v Secretary of State for Justice B; B, SC(E) considered.
(3) It was unnecessary to determine the third issue (para 50, 51).
Decision of the Divisional CourtM; B affirmed.
Paul Bowen KC and Paul Clark (instructed by Leigh Day) for the claimant.
Jonathan Hough KC (instructed by the Head of Legal Services at the London Borough of Hammersmith and Fulham) for the coroner.
Frances McClenaghan (instructed by the Directorate of Legal Services, Metropolitan Police Service) for the Commissioner of Police of the Metropolis, the second interested party.
The first interested party, the Central and North West London NHS Foundation Trust, did not appear and was not represented.
Matthew Brotherton, Barrister
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 2