R (Morahan) v Her Majesty's Assistant Coroner for West London

Summary

Tanya Morahan was aged 34 when she died of cocaine and morphine toxicity. Over the preceding 10 years she experienced mental illness and was diagnosed with paranoid schizophrenia. On 25 June 2018, she was discharged from MHA s.3 and became a voluntary inpatient. Five days later, with her clinicians' agreement, she left the ward to clean up her flat to rehabilitate into the community. She was returning to the ward to take evening medication. She left the unit for the last time on 3 July and was found dead in her flat on 9 July 2018. The issue before the court was whether there was a duty to hold a Middleton inquest (ie enhanced Article 2 ECHR investigative duty) in such circumstances.

The court helpfully summarised the key principles regarding the positive Article 2 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 [2019] EWHC 1648 (QB), paras 74-75 and R (Kent County Council) v HM Coroner for the county of Kent [2012] 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 Osmanat para 116, Rabone at 104 and Fernandes de Oliveira at paras 111, 125, 131.

The duty exists in "certain well-defined circumstances" which have developed from prison settings to those detained under the MHA 1983 (Savage) to voluntary patients (Rabone). The issue, therefore, was whether the duty arose on the facts of Tanya Morahan's case. Having analysed the case law, the court derived the following three points of interest:

1. The existence or otherwise of the operational duty is not to be analysed solely by reference to the relationship between the state and the individual, but also, and importantly, by reference to the type of harm of which the individual is foreseeably at real and immediate risk. So there may be an operational duty to protect against some hazards but not others.
2. 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.
3. In cases where vulnerable people are cared for by an institution which exercises some control over them, the question whether an operational duty is owed to protect them from a foreseeable risk of a particular type of harm is informed by whether the nature of the control is linked to the nature of the harm. Detention can increase the risk so the control is linked to it:

67 …The same is true of voluntary mental patients in relation to the risk of suicide where their residence at the institution is not truly voluntary if and because the mental condition for which they are being treated itself enhances the suicide risk.  It does so not only as the potential result of incarceration, if not truly voluntary, but often also because, as was identified in both Rabone and Fernandes de Oliveira, the mental condition which the institution assumes control for treating impairs the patient's capacity to make a rational decision whether to take their own life.  The nature of the control is again linked to the risk of harm.  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.  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.

The court concluded that no operational duty was owed to Tanya 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 cause of which the Trust was or ought to have been aware. There was no history to suggest suicide risk or accidental overdose. She had abstained from taking drugs whilst on leave of absence from her s.3 detention. And 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.

Furthermore, there was no relevant assumption of responsibility. The Trust had not assumed responsibility for treatment of Tanya for drug addiction of a life threatening nature. The responsibility it assumed was for treatment of her paranoid schizophrenia and potentially exacerbating effects of substance misuse. Her mental health condition was not linked to the harm. Nor was she vulnerable to suicide: her vulnerability was unconnected to the harm. Nor was there an exceptional risk, as opposed to an "ordinary" one. It was a risk to which she was exposed in the same way as any other recreational drug user irrespective of her status as a patient at the hospital. Nor should her position be equated with that of a detained patient. Unlike Rabone (who was "an involuntary patient in all but form"), Tanya was a voluntary patient rehabilitating into the community and there were no grounds for MHA detention on the final day she left the ward on 3 July 2018. That she failed to return to the ward a second time and missed her medication for an increasing period as the days passed was insufficient to create the operational duty.

Comment

 

The circumstances in which the State is obliged to take reasonable precautions to prevent a person's suicide continues to fascinate. The present case illustrates how fact-sensitive the elements of the operational duty are in determining legal liability. Patient status seems to continue to influence the law's development here. Melanie Rabone's status was described as that of an involuntary patient in all but form, whereas the voluntariness of Tanya's position was said to be quite different. It is argued here, based upon the Mammadov decision, that the operational duty is not confined to hospital detention and could be owed to those who are suicidal in the community if the Osman elements are proven. Much is at stake in these cases: on the one hand the law does not want to encourage defensive practice; but, on the other, there is a need to hold public bodies to account for failing to take reasonable precautions where they know or ought to know of a real and immediate risk to life