R (Morahan) v HM Coroner for West London and others [2022] EWCA Civ 1410 (here)
After a flood of Article 2 decisions in the past few years many will be relieved to learn that the Court of Appeal have firmly rejected the challenge in Morahan (so there is no new law to get to grips with), whilst at the same time sending out a stern message to lawyers that these Article 2 arguments are getting out of hand!
We should remember that “an inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. ” Inquests are becoming increasingly legally complex which the Court deprecated as leading to “lengthy delays….a substantial increase in the length with associated escalation in the costs of involvement in coronial proceedings”.
Additionally, the implications of Article 2 engagement are limited – whether it is engaged or not the scope of the inquiry will be the same. The availability of legal aid is the main driver for applications for Article 2 engagement but that should not affect the Court’s determination of the law.
Facts
Ms Morahan was a voluntary psychiatric patient who had gone AWOL from hospital and was later found dead at her home having ingested recreational drugs (see our previous blog post here). There was no evidence to indicate that she intended to take her life.
The family (Ms Morahan’s sister), raised three grounds of appeal, namely that the Divisional Court should have concluded that:
- The Article 2 operational duty was arguably owed by the hospital trust (‘the Trust’).
- An automatic duty to hold an Article 2 compliant inquest arose.
- There was an arguable breach of the operational duty.
Ground 1: no arguable duty
The Court of Appeal upheld the first instance reasoning of Popplewell LJ describing it as “unassailable”. The Court repeated the summary provided by the Divisional Court, and confirmed that there was no operational duty to protect Ms Morahan from the risk that had actually killed her – that is the risk of accidental death due to taking illicit drugs. She was a voluntary patient and the factors identified in Rabone were not satisfied.
An accidental death from the recreational use of drugs by a voluntary patient who was genuinely at liberty to come and go – was far removed from the circumstances in Rabone, where the very purpose of being in hospital was to protect against the risk of suicide. There was not a foreseeable real and immediate risk of overdose. There was no history of accidental overdose. That a period of abstinence in hospital may have increased Ms Morahan’s risk was insufficient.
The fresh expert evidence the family sought to introduce from a clinical pharmacologist to support the increased risk of overdose after abstinence was not admissible, but even if it had been the Court considered that it did not support the existence of a real and immediate risk of death for the purposes of Article 2, stating 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. ‘Real and immediate risk’ as a Strasbourg term of art is much more specific.”
Ground 2: no automatic duty in these circumstances
The family also argued for an automatic engagement of Art 2, rather optimistically, suggesting that the death of a voluntary psychiatric patient, wherever they die, required an Article 2 compliant inquest. The Court quickly dismissed this as being a proposition without any authority.
The House of Lords and Supreme Court had made it clear that domestic courts should keep pace with Strasbourg jurisprudence but should not get ahead of it.[1]
The automatic investigative obligation only arises where the death falls into a category which necessarily gives rise to the possibility of a substantive breach (as is the case with prisoners or voluntary patients being treated to manage suicide risk, like Ms Rabone). This was “self-evidently” not the case with a voluntary patient at liberty to leave the hospital and in respect of all causes of death.
As no arguable duty arose, it was not even necessary to consider the appellant’s third ground.
Take aways
The decision essentially upholds the Divisional Court’s decision for the same reasons. It again emphasises the need to consider with respect to what risk a duty was owed, as previously expounded by the Lord Chief Justice in Maguire ([2020] EWCA Civ 738).
The Gordian Knot of legal aid and Article 2
The Court was clearly frustrated that legal aid considerations were leading to attempts to stretch the boundaries of Article 2 beyond their appropriate limits. The Court referenced the range of coroners’ cases that have come before the High Court and Court of Appeal in recent years which indicate that the summary nature of the inquest regime is being overlooked. Unless legal aid ceases to be so reliant on the engagement of Article 2 – unlikely – this legal pressure will continue. Unfortunately, this in turn leads to more case law, making inquests more legalistic and therefore less accessible to those families who do not have the benefit of legal aid and more costly for the legal aid regime in relation to those cases that do qualify. There is, as yet, no simple solution to this apparently intractable problem.
The family is considering appealing to the Supreme Court. Given the seniority of the bench (including the Lord Chief Justice), it remains to be seen whether the Supreme Court will grant permission.
Frances McClenaghan and Bridget Dolan KC of Serjeants’ Inn Chambers advised and represented the Commissioner of Metropolitan Police in this case.
You can watch the Court of Appeal hearing on links here
[1] See R (Ullah) v. Special Adjudicator [2004] 2 AC 323, R (Al-Skeini) v. Secretary of State for Defence [2008] 1 AC 153 at [106] and R (AB) v. Secretary of State for Justice [2022] AC 487 between [54] and [59]).