[2022] EWCA Civ 1410
On 28 October 2022, the Court of Appeal (CoA) dismissed the appeal challenging the coroner’s decision that the circumstances surrounding the death of Tanya Morahan did not engage the procedural obligation imposed by Article 2 of the European Convention on Human Rights (ECHR).
The judgement confirms that the engagement of Article 2 at inquest is to be determined on a case-by-case basis. It serves as a reminder that coroners are right to be cautious when considering whether the investigative duty arises where there is little to no link between the state’s duty and the foreseeability of a real and immediate risk of death.
Background
Ms Morahan had a complex past medical history of mental health illness (including drug-induced psychosis and schizophrenia). She had previously been detained under the Mental Health Act 1983 (as amended) and thereafter voluntarily at an in-patient psychiatric community-based open rehabilitation unit in the weeks leading up to her death. On 3 July 2018, Ms Morahan left the unit to visit her flat and did not return. Attempts were made by staff members from the unit and the police to contact Ms Morahan and encourage her to return to the unit, but to no avail. On 9 July 2018, Ms Morahan was found dead at her flat following a drug overdose.
The Inquest
At the inquest, the coroner found that at the time of Ms Morahan’s death, she was not considered to be of a risk to life. The coroner concluded that neither the trust which operated the unit, nor the police, knew or ought to have known that Ms Morahan was of a real and immediate risk to death and therefore her death did not occur in circumstances that engaged the procedural obligation under Article 2 (ECHR).
The Divisional Court
On 11 June 2021, The Divisional Court rejected the argument advanced by the claimant (Jessica Morahan) that the procedural duty (pursuant to Article 2 (ECHR)) was triggered by the fact Ms Tanya Morahan had been a voluntary in-patient. 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” [124].
Additionally, the Divisional Court upheld the coroner’s decision that there was no real and immediate risk of death to Ms Morahan from such a cause of which the trust was or ought to have been aware of. Finally, the Divisional Court concluded that even if such a duty existed, there was no arguable breach of the procedural duty under Article 2 (ECHR).
The Appeal
The appellant advanced three grounds of appeal, as follows:
- 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 Divisional Court erred in not concluding that an automatic duty to hold an Article 2 compliant inquest arose on the facts.
- The Divisional Court erred in concluding that there was no arguable breach of any Article 2 substantive duty.
Ground 1: In response to the first ground of appeal, the CoA considered that the ground directly contradicted the judgment of Popplewell LJ [124] in the Divisional Court.
In bringing ground 1 of the appeal, the appellant sought to rely upon fresh evidence from an expert in clinical pharmacology and therapeutics. The CoA held that it had considered this evidence to be inadmissible to the proceedings, but that the evidence had been considered in any event, without prejudice.
Despite the fresh evidence, the CoA did not support the position 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. The CoA went further to conclude, “The sad reality was that, as a long-term drug user, she was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs. ‘Real and immediate risk’ as a Strasbourg term of art is much more specific” [44].
Ground 2: The CoA held that there is no authority to determine that an Article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death. The CoA held that Ms Morahan’s death (an accidental death), was far removed from the circumstances in Rabone (where the purpose of being in hospital was to protect against the risk of suicide) and therefore Rabone did not apply to this case.
The CoA went further in response to this ground and concluded that, 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. (R (L (A Patient)) and Smith). This was not the case for Ms Morahan, who was at liberty to leave the hospital voluntarily irrespective of her cause of death.
Ground 3: The CoA held that this ground of appeal did not arise, given the conclusion that an Article 2 operational duty did not exist.
Conclusion
While the law surrounding the engagement of Article 2 at inquests remains complex, this judgment is a helpful reminder that while coroners have a discretion to consider the engagement of Article 2 at inquest, the threshold for establishing its engagement remains high.
We have a national team supporting healthcare organisations and individuals in inquests – please contact us if you would like to discuss this matter further.
For further information, please contact:
Sofia Bradford, Hill Dickinson
sofia.bradford@hilldickinson.com
