(Morahan) v His Majesty’s Assistant Coroner for West London

Summary

The Court of Appeal has again rejected attempts to expand the reach of Rabone and arguments that Article 2 ECHR was engaged in the death of a voluntary mental health patient who died while on leave, not by suicide, but by an involuntary overdose. 

Tanya Morahan died in July 2018 as a result of a cocaine and morphine overdose. An inquest into her death heard that she had been progressing well while a voluntary patient at a unit operated by Central and North West London NHS Foundation Trust. 

The court considered the relevant Article 2 case law noting: 

1.    the Article 2 procedural obligation (to conduct an investigation) arises parasitically where there has been a breach of the substantive or “operational” duty on the state to protect life [9]. 

2.    some categories of death will trigger a procedural obligation automatically, the paradigm example being a violent death in custody, either by the hands of another or by suicide [10]. 

3.    outside of the category of systemic breach of the Article 2 obligation, the automatic procedural (ie investigative) obligation will not arise [10].

The judgment of Green J in R (Letts v Lord Chancellor [2015] 1 WLR 4497 which appears to establish a free-standing category or procedural obligation arising in the absence of substantive or operational breach was doubted. [11]

The Court of Appeal considered the evolution of the case law and its analysis of the ambit of the article 2 operational duty from Savage v. South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 (death by suicide of a psychiatric patient involuntarily detained under the Mental Health Act 1983)  to Rabone v. Pennine Care NHS Trust [2012] 2 AC 72 (death by suicide of a informal psychiatric patient while absent from hospital during a period of negligently granted leave) to the Strasbourg case of Fernandez de Oliveira v. Portugal (2019) 69 EHRR 8 (death by suicide of a voluntary psychiatric patient who was left unattended in hospital, left his bed and jumped in front of a moving train). 

It repeated as it has done previously (see Maguire – discussed further below) the relevance of the indicia identified by Lord Dyson in Rabone which demonstrate the existence of an operational duty. In addition to the necessary but not sufficient condition of a “real and immediate risk to life”, these are: (a) assumption of responsibility by the state for the individual’s safety; (b) vulnerability of the deceased; (c) the level of risk in question: whether or not it is an “exceptional” risk. 

The court noted that at the time of her death, Tanya Morahan had been assessed as having capacity to consent to her treatment and admission; that her admission was voluntary and that she was making good use of unescorted leave such that ultimately her detention under s.3 MHA 1983 was rescinded and she remained at the rehabilitation unit as a voluntary patient. On one period of absence from the unit, it was observed, Ms Morahan got drunk but returned as promised, unharmed. On the next period of absence on 3 July 2018, however, she did not return: after an absence of ten days police visited her property and found she had died of an unintentional drug overdose. Further investigation suggested her tolerance would have been reduced due to a long period of abstinence, further, that she was more likely to have died closer to the time she was last seen alive (3 July 2018) than the time her body was discovered (9 July). [37] 

The Coroner held that no substantive obligation was owed: while Ms Morahan was vulnerable, there was no real and immediate risk of death of which the Trust or police were or ought to have been aware. The Divisional Court upheld this decision on the basis that there was no real and immediate risk of death from such a cause (accidental death by recreational drug use) of which the Trust was or ought to have been aware; further, that even if there had been such a duty, there was no arguable breach such as to give rise to a parasitic procedural obligation. 

The Appellant appealed on three grounds [40]:

1.    First, 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.

2.    Secondly, 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.

3.    Thirdly, the Divisional Court erred in concluding that there was no arguable breach of any article 2 substantive duty.

All three grounds were dismissed.

On the first ground, the Court of Appeal upheld the conclusion of the Divisional Court that no operational duty was owed. It held that there was no real and immediate risk of death of which the Trust ought to have been aware, Tanya Morahan having no history of accidental drug overdose and no previous comparable incidents on previous episodes of unescorted leave: the relevance of a previous positive drug test following a period of leave was dismissed [41-2]. The court repeated with approval the dictum of Popplewell LJ at [124] of the Divisional Court judgment: ‘the risk must 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 Tanya to continue her rehabilitation into the community after her absence on 30 June/1 July gave rise to a real and immediate risk of death by overdose.’ Evidence of “high risk” of serious harm through drug use was similarly rejected as not meeting the “specific” meaning of “real and immediate risk” [44]. 

On the second ground, Court held there was no authority to support the argument that an operational duty is owed to all voluntary psychiatric patients – noting “the risk of death in this sad case is accidental death from the recreational use of drugs of a voluntary patient who was genuinely at liberty to come and go. It is far removed from the circumstances in Rabone where the very purpose of being in hospital was to protect against the risk of suicide” [46]. It considered the extension required to include Tanya Morahan’s death within the current criteria would be “an invitation to march ahead of Strasbourg in this area” [48] which the court was bound to decline. 

Finally, as to the possibility of an arguable breach of any Article 2 substantive duty the court dismissed this ground with just one line: ‘This ground of appeal does not arise given our conclusions on the existence of an article 2 operational duty.’ [50]

Comment

This will be a disappointing judgment for families, no doubt, many of whom struggle to conduct inquests without the benefit of legal aid and legal advice in the absence of an article 2 ruling. It was, perhaps, unsurprising in the context of a quite difficult set of facts: while the domestic courts may be prepared to accept an extension of state assumption of responsibility to include a voluntary patient (Rabone), it is, arguably, a further extension of the current case law to include a duty to protect such a patient against all and any risks.

The Supreme Court will be considering the matter again in a few days, the case of R (Maguire) v. Blackpool and Fylde Senior Coroner [2021] QB 409 (CA) being heard on 22 and 23 November 2022 at which the potential engagement of the substantive and subsequent procedural Article 2 obligations will be analysed in the context of a woman lacking capacity to make decisions regarding her treatment and care and deprived of her liberty pursuant to a standard authorisation.