The beginning of a pushback against Article 2 inquests?

24 November 2022 by Dominic Ruck Keene

In R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal robustly rejected a challenge to the earlier decision of the Divisional Court that Article 2 did not apply to drug related death of a voluntarily admitted psychiatric patient.

The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at [3] there was no basis for suggesting that she had taken her own life.

The Court of Appeal held at [42] that the Divisional Court’s conclusion that the death did not occur in circumstances where any operational Article 2 duty was arguably owed by the Trust was “unassailable” for the reasons given by the Divisional Court – namely that none of the factors identified in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 were present. There was no real or immediate risk of death from any cause of which the Trust was or ought to have been aware and specifically there was nothing to suggest that permitting her to continue her rehabilitation into the community through being allowed out from the unit gave rise to any real and immediate risk of death by overdose. The Court emphasised that the presence of a real and immediate of risk is a necessary (albeit not sufficient) condition for the existence of the operational duty, rather than being a factor as to whether or not there was any breach of that duty. At [44], the Court held that 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. However, “real and immediate risk” as a Strasbourg term of art was much more specific.

The Court of Appeal further rejected at that there was an automatic obligation to hold an Article 2 inquest into any death of a voluntary psychiatric patient, whether in or away from the hospital, or whatever the cause of death. The Court noted at [46] that:

“There is no authority which decides that an article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death. 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.”

Accordingly, this would amount to “marching ahead” of Strasbourg, which was contrary to the prohibition set out in R (Al-Skeini) v. Secretary of State for Defence [2008] AC 153 that the national court should not go ahead of Strasbourg – it was not one of those cases where the application of well-established Strasbourg jurisprudence leads compellingly to a particular development. Further, the Court held at [49] that only where a death falls into a category which:

“necessarily gives rise to the possibility of a substantive breach that the automatic investigative obligation arises. That is self-evidently not the case with a voluntary patient at liberty to leave hospital and in respect of all causes of death. That contrasts with the range of cases discussed in those authorities and identified by the Strasbourg Court as falling within the automatic category, including voluntary psychiatric patients being treated to manage suicide risk, like Ms Rabone, who would be detained were they not to remain in hospital.”

The Court of Appeal’s powerfully succinct judgment was not surprising on the facts and in light of the breadth of the scope of Article 2 contended for. What is potentially more significant (and likely to be frequently cited in forthcoming PIRs) were the more general comments concerning Article 2 and inquests.

The Court trenchantly commented that:

“7. An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in article 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.

8. The application (or not) of the article 2 procedural obligation will not affect the scope of the investigation carried out by a coroner or the breadth of inquiry at the inquest itself. This case is no different because the coroner plans an inquest the breadth of which nobody seeks to criticise. That breadth is unaffected by the question before us. The question whether article 2 applies, with the result that there should be a Middleton rather than a Jamieson inquest, arises frequently and may be hard fought at a series of pre-inquest reviews. They too often cause undesirable delay…“

It will be interesting to see whether the Supreme Court’s forthcoming judgment in Maguire continues to seek to restrain the application of Article 2 in inquests.