Arguments about the application of Article 2 ECHR remain one of the most taxing legal issues in the coronial jurisdiction. That the European Convention was never intended to be applied as fixed black letter law, but to be an instrument open to judicial interpretation as views evolve as to what ‘Human Rights’ actually entail for the society of the day, means that the types of cases that might engage the Art 2 investigative obligations in coroners’ courts will never be fixed. It is, therefore, unsurprising that cases exploring the engagement of Art 2 obligations in inquests seem to make their way to the High Court every six months or so, as one coroner or another ‘takes one for the team’ to help us all understand the current position in law.
Morahan is now the latest “cut out and keep” judgment for anyone wishing to get up to speed on the current state of the law with regard to Art 2 and the scope of the positive operational and the enhanced investigative Art 2 duties. In Morahan the Divisional Court has very helpfully examined Art 2 in detail, providing a summary guide to the recent key cases on Art 2 in the context of the death of a voluntary psychiatric in-patient from an accidental overdose when on approved leave from hospital.
Tanya Morahan was a voluntary patient in a psychiatric rehabilitation unit who died when she was on leave in the community. On 30 June 2018 Tanya had left the in-patient unit with permission but instead of returning that night as agreed she came back the following evening. As she had not failed to comply with her treatment plan before it was decided to continue with her informal status on the ward and continue to work with her towards her recovery in open rehabilitation. Two days later, on 3 July, Tanya again left the unit with staff’s agreement saying that she was going to tidy up her flat. When she failed to return the Met Police were asked to check her home address the next day: police attended but received no answer. A few days later on 9 July Tanya’s body was found at her home. The pathology evidence was that she died as a result of an overdose of recreational drugs and that the time of her death was more likely to be closer to the last time she was known to be alive (3 July) than when she was found.
At a pre inquest review the Coroner did not accept Tanya’s family’s argument that these circumstances gave rise to an automatic duty to conduct a Middleton inquest; nor that such duty arose because there were arguable breaches of a substantive operational 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 her family said was or ought to have been known to the Trust.
This was a death from accidental causes nevertheless it was argued that the automatic duty arose with reference to the ‘Rabone factors’ of the voluntary assumption of responsibility, vulnerability and exceptionality of risk. If not, argued the family, there was at very least an arguable breach of an arguable ‘Osman operational duty’ as the Trust ought reasonably to have known of a real and immediate risk to Tanya’s life, and taken such measures as could reasonably be expected of it to avoid such risk.
On Judicial Review the Divisional Court did not agree that the Trust owed a positive operational duty to Tanya. A lengthy journey through most of the recent Art 2 decisions revealed that in this complex area of law several factors needed to be considered before the duty claimed might arise:
The scope of the duty and the nature of the specific risk in question
The court emphasised the need to focus on the scope of the duty which may be owed as there may be an operational duty to protect against some hazards but not others.
The Art. 2 operational duty must be examined and defined as a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of the case. Only real and immediate risks to life in those categories of which the state agent is or ought to be aware can give rise to a duty to take steps to prevent them. Hence in Rabone the duty arose where the risk of suicide was the very reason the deceased had been hospitalised. In contrast, a risk of death from natural causes was not one which necessarily or ordinarily attracted the operational duty, even for detainees.
Whether an operational duty is owed to protect the person from a foreseeable risk of a particular type of harm is also informed by whether the nature of the state control is linked to the nature of the harm. 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.
Foreseeability of this type of harm
The foreseeable real and immediate risk of the type of harm in question is also a necessary condition of the existence of the duty, not merely relevant to breach. Without identifying a foreseeable risk of the type of harm involved, it is impossible to answer the question whether there was an operational duty to take steps to prevent it.
Limits of the ‘automatic category’ argument
Earlier decisions have outlined categories of deaths where Art 2 duties are said to be ‘automatically engaged’. In particular where those detained by the state (in prison, immigration centres or psychiatric hospital) suffer harm inflicted by other detainees or from suicide. Analysing those cases however shows that whether an operational duty is owed to an individual ought not to be a category exercise, save where it could be said that everyone in the category shared the characteristics which justified the imposition of the duty.
The positive operational duty will not apply automatically to all voluntary psychiatric patients.
In particular Rabone did not establish that the positive operational duty applied automatically to all voluntary psychiatric patients. Rather voluntary psychiatric patients will fall on a spectrum at one end of which will be those like Ms Rabone, where the power to impose involuntary detention on her should have been exercised when she tried to leave the unit, and at the other end will be a patient like Ms Morahan for whom there were no medical grounds for statutory detention, even if she chose not to remain at the unit or to comply with her care plan. Such a patient, even if residing for much of the time in the hospital, may do so on a genuinely voluntary basis. Her choice may be just as unrestricted as if she were visiting as an outpatient; or as if she were an in-patient in a hospital suffering from a physical illness.
The relevance of arguability
In essence said the court, the Art 2 investigative duty is triggered where it is arguable there has been a breach of substantive rights. Whether a case falls within a category of case giving rise to an automatic duty or not, the threshold of arguability is the same. That threshold has been described in different ways (grounds to suspect, legitimate suspicion, possibility, potential, more than fanciful, credible suggestion) but these are all alternative ways of expressing a single concept: arguability.
The suggestion of a breach will always be arguable in some cases, such as the suicide in custody cases, where the circumstances will always give rise to a reasonable suspicion of breach. It is this arguability that allows an ‘automatic category approach’ to those particular circumstances to be legitimately adopted.
In other cases the enhanced investigative duty will only arise if a sufficiently arguable case of breach can be made out on the particular facts of the individual case.
Application to the facts of Ms Morahan’s death
The need for an arguable operational duty as a necessary condition for an automatic enhanced investigative duty was, therefore, fatal to this Judicial Review claim on the facts of Ms Morahan’s case.
A voluntary psychiatric patient was not necessarily to be treated in the same way as an involuntary detainee and there was no arguable case for the existence of an operational duty to protect against the risk of accidental overdose. Accidental deaths by overdose from the use of recreational drugs may occur without any suspicion of state responsibility by way of breach of a substantive obligation, just as may deaths from natural causes.
The take home point
In summary this welcome judgment clarifies the relevance of the concept of ‘arguability’ to the engagement of Art 2 investigative obligation. The arguability threshold will be the key regardless of the earlier descriptions of ‘automatic’ cases and the Osman ‘operational’ duty cases. There is no magic to ‘automatic’ categories of cases. In every instance whether a duty is owed depends on the circumstances of death and whether they give rise to a credible suggestion that the state failed in its responsibility to protect the person from a foreseeable risk of death in those circumstances.
The take home message is that a deceased having been in state care or state custody will not, without more engage, Art 2: if the death is accidental or from a natural cause it must also be arguable that there was some responsibility of the state for causing or failing to prevent the accident from occurring or the natural cause progressing to fatality; if the death is from suicide or at the hand of another arguability can, however, still be assumed.
 Shorthand for an inquest that meets the procedural obligations under Art 2 ECHR.
Frances McClenaghan of Serjeants’ Inn Chambers is representing the Commissioner of Police of the Metropolis in the inquest and advised in the JR claim.