Guidance from Divisional Court on Article 2 inquests
4 January 2022
In R (Morahan) v West London Assistant Coroner  EWHC 1603 (Admin), the Divisional Court provided detailed guidance on the circumstances in which an enhanced investigation under Article 2 ECHR may be required at an inquest.
Tanya Morahan had a history of paranoid schizophrenia and harmful cocaine use. From mid-May 2018 she was an inpatient at a rehabilitation unit operated by the Central & North West London NHS Foundation Trust. She was initially detained under s.3 of the Mental Health Act 1983 but on 25 June 2018 the section was rescinded. On 30 June 2018 Tanya left the unit but didn’t return until the next evening, 1 July. On the afternoon of 3 July 2018, again with her doctors’ agreement, she left the ward but didn’t return. The Trust asked the police to visit her. They visited on 4 July 2018 but she did not answer the door. She was ultimately found dead on 9 July 2018. [para 2].
The Coroner opened an inquest and found that Article 2 was not engaged. The family brought judicial review proceedings, arguing that: (1) the circumstances of Tanya’s death fell within a class of cases which gave rise to an automatic duty to conduct a Middleton inquest; (2) alternatively, that such duty arose because there were arguable breaches of a substantive operational duty (the Osman duty) owed by the Trust to take steps to avert the real and immediate risk of Tanya’s death by accidental drug overdose, a risk which was or ought to have been known to the Trust. [para 3].
The decision was handed down by Popplewell LJ.
He began by explaining that Article 2 imposed three distinct duties on the state:
1. A negative duty to refrain from taking life without justification;
2. A positive duty to protect life with two specific aspects:
a. The framework duty, which includes a duty to put in place a legislative and administrative framework to protect the right to life, involving effective deterrence against threats to life, including criminal law provisions to deter the commission of offences, backed up by a law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; and in the healthcare context having effective administrative and regulatory systems in place (sometimes called the systems duty); and
b. The positive operational (Osman) duty to take positive measures to protect an individual whose life is at risk in certain circumstances; and
3. An investigative duty to inquire into and explain the circumstances of a death. However there are two different investigative duties with different scopes and different legal bases. The first is a substantive duty to investigate each death; this is part of the framework duty. The second, called the enhanced investigative duty, is a procedural obligation which only arises in cases where it is possible that there has been a breach by the state of one of its substantive operational or systems duties. [para 30].
The decision focused on the positive operational duty and the enhanced investigative duty.
The positive operational duty
Popplewell LJ explored four key authorities relating to the operational duty – Rabone v Pennine Care NHS Foundation Trust  2 AC 72, Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28, Fernandes de Oliveira v Portugal (2019) 69 EHRR 8 and R (Maguire) v Blackpool and Fylde Senior Coroner  3 WLR 1268.
The first key point deriving from his analysis of the authorities was that it is relevant to the existence of the operational duty to consider whether there is a real and immediate risk to life. The claimant had argued that the existence of a real and immediate risk was not a precondition to the existence of the operational duty but was in fact relevant only to breach, but the court disagreed with this analysis (see paras 47 and 66).
Second, the operational duty will not arise in relation to all voluntary psychiatric patients. There may be some voluntary psychiatric patients such as Melanie Rabone who are indistinguishable from detained patients, but there will be others who are analogous to an outpatient and who, for example, are not even close to meeting the criteria for detention (see paras 49 and 60).
Third, the existence of the operational duty is not to be analysed solely by reference to the relationship between the state and the individual, but also by reference to the type of harm of which the individual is foreseeably at real and immediate risk (para 65).
Furthermore, in cases where people are cared for by an institution which exercises control, 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. For example, in relation to prisoners, the nature of the control exerted by the prison increases the risk of suicide and therefore prisons have an obligation to protect detainees against the risk of suicide. Popplewell LJ further explained that where there is no link between the control and the type of harm, the imposition of an operational duty to protect against the risk would be to divorce the duty from its underlying justification as one linked to state responsibility. For example, a psychiatric hospital would owe no duty to protect a patient (voluntary or detained) from the risk of accidental death from a car accident whilst on unescorted leave (see para 67).
The enhanced investigative duty
Following a detailed consideration of the leading cases, Popplewell LJ explained that the state’s Article 2 investigative duty has two aspects. The first is a substantive obligation on the state to investigate every death, irrespective of its circumstances, as part of the framework duty. He referred in this regard to Lord Phillips’ comments in Smith that “any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death.” This duty is fulfilled by our system of registration of deaths, which requires a death certificate certifying a cause of death from a doctor or a coroner. If there is doubt as to whether the cause of death is natural causes, then there will be a report to the coroner, followed by inquiries, possibly a post-mortem and/or an inquest. This substantive duty arises immediately following death and may be the precursor to the enhanced procedural obligation (see para 92).
The second aspect of the Article 2 investigative duty is the enhanced procedural obligation which only arises following certain deaths and is fulfilled usually, but not always, by holding a Middleton (or Article 2-compliant) inquest. This enhanced investigative duty is parasitic on a substantive duty and arises in two circumstances – (1) where there is an arguable breach of the state’s substantive Article 2 duties and (2) in some categories of case, automatically.
He went on to consider the categories of cases in which the enhanced procedural obligation arises automatically — killings by state agents, suicides or near suicides in custody, unlawful killings in custody, suicides of conscripts, and suicides of involuntary mental health detainees. Following a review of the authorities, he concluded that the reason why the enhanced procedural obligation arises automatically in these cases is because, due to the nature and/or circumstances of these types of deaths, they raise a sufficient possibility of state responsibility to require the enhanced investigation (para 100-101). The justification for the automatic imposition of the duty is not the wider rationale identified in Amin and Middleton of learning lessons with a view to preventing deaths (which is part of the framework duty).
Therefore, there is no difference in terms of the rationale for the enhanced investigative obligation between cases where the duty arises automatically and those where it does not – in both types of case the rationale for the enhanced investigative duty is that there is a sufficiently arguable breach of a substantive obligation by a state agent. In automatic cases, there is always a sufficiently arguable breach because of the nature and circumstances of the death (para 103-104). In so far as Greene J suggested in Letts that the existence of the duty in automatic cases is not linked to an arguable violation of a substantive obligation of state agents, Popplewell LJ disagreed (para 111).
Popplewell LJ pointed to the case of Tyrell as exemplifying the relevant principles. Tyrell concerned the death of a prisoner from cancer. An investigation by the Prisons and Probation Ombudsman (mandatory following any prison death) concluded that there were no failures with the healthcare received by the deceased prisoner. Therefore, in the absence of any evidence that even raised a suspicion of state failure the court concluded that the coroner had been right not to hold an Article-2 compliant inquest because the enhanced investigative duty did not arise. A suicide or an unlawful killing in custody would, by nature, inevitably raise legitimate suspicion of a breach of the state’s substantive obligations and therefore the enhanced investigative duty would always arise, but deaths from natural causes would not, necessarily (see paras 120-121).
Summary of key principles
There is a helpful summary of the nine key principles at paragraph 122:
(1) There is a duty on the state to investigate every death. This is part of its framework duty under article 2 by way of positive substantive obligation. This duty may be fulfilled simply by identifying the cause of death. It may require further investigation and some explanation from state entities, such as information and/or records from a GP or a hospital.
(2) In certain circumstances there is also a distinct and additional enhanced duty of investigation which requires the scope of the investigation to have the minimum features summarised by Lord Phillips in Smith at paragraph 64. In this country the enhanced investigative duty is usually, but not always, to be fulfilled by a Middleton inquest.
(3) The enhanced investigative duty is procedural and parasitic on a substantive duty. It cannot exist where there is no substantive duty.
(4) The circumstances in which an enhanced investigative duty, as a procedural parasitic duty, arises are twofold:
(a) whenever there is an arguable breach of the state’s substantive article 2 duties, whether the negative, systemic or positive operational duties; and
(b) in certain categories of circumstances, automatically.
(5) The categories in which it has been identified as arising automatically include killings by state agents, suicides or attempted suicides and unlawful killings in custody, suicides of conscripts, and suicides of involuntary mental health detainees. These have been identified by a developing jurisprudence and these categories cannot be considered as closed.
(6) The underlying rationale for the categories of cases which automatically give rise to the enhanced investigative duty is that all cases falling within the category will 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 justification for the automatic imposition of the duty is not the wider rationale identified in Amin and Middleton, associated with the framework duty, of learning lessons with a view to protecting against future deaths.
(7) The touchstone for whether the circumstances of a death are such as to give rise to an automatic enhanced investigative duty is whether they fall into a category which necessarily gives 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.
(8) In this context legitimate grounds for suspicion connotes the same threshold of arguability as has to be satisfied in cases where the enhanced investigative duty does not arise automatically.
(9) In addressing whether a category of death automatically attracts the enhanced investigative duty, the type of death is important. Deaths from natural causes are not to be treated in the same way as suicides or unlawful killings. This follows from (6) and (7).
Application to the facts of the case
Popplewell LJ found that, in Tanya’s case, the operational duty did not arise because the factors identified in Rabone were not fulfilled – there was no real and immediate risk of death from a cause of which the Trust was or ought to have been aware, there was no assumption of responsibility, Tanya was not particularly vulnerable in the sense relevant to the duty and her risk was not exceptional. Therefore the duty did not arise. Further, he found that even if the duty did arise, there was no arguable breach. Finally, he found that there was no automatic enhanced investigative duty in the case of an accidental death of a voluntary psychiatric patient because: (1) voluntary psychiatric patients cannot be treated in the same way as an involuntary detainee for these purposes, as their circumstances vary in different cases and would require a fact-specific inquiry; and (2) there was no justification for extending the automatic duty to cases of accidental death.
It is very common at pre-inquest hearings for there to be discussion about whether Article 2 is engaged. Morahan provides an incredibly helpful exploration and summary of all the key principles which are relevant to this question and so it is likely to become a key case for practitioners to refer back to again and again. Popplewell LJ’s judgment synthetises the case law in this area and explains how the various strands fit together.
The application of Article 2 at inquests has been discussed in detail on this blog elsewhere too:
- The decision in Maguire (a case cited extensively in Morahan) is discussed here;
- The decision in Dove (which related to the application of Article 2 as related to welfare benefits) is discussed here;
- An extended three-part analysis of Article 2 at inquests is provided here, here and here; and
- The decision in Skelton and Lawal (which turned on different issues relating to Article 2) are discussed here and here.
Rajkiran Barhey is a barrister at 1 Crown Office Row.