Inquests are not surrogate public inquiries

R (Morahan) v HM Coroner for West London and others [2022] EWCA Civ 1410

The Court of Appeal has firmly rejected the appeal challenging the West London Coroner’s decision not to hold a Middleton inquest (an inquest under Article 2 of the European Convention on Human Rights) following the death of a voluntary in-patient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community.

The Court of Appeal held that the “impressive and comprehensive” judgment of Popplewell LJ at first instance was “unassailable”, making it clear that inquests are not surrogate public inquires and the application of Article 2 must be made on a case by case basis. 

Background

Ms Morahan had a long and complex history of mental health illnesses. In the months prior to her death, she had initially been detained under s.3 of the Mental Health Act 1983 at a psychiatric unit however her status subsequently changed, and she became a voluntary patient.

On 3 July 2018, Ms Morahan left the unit with permission but did not return to the unit in the evening. When she failed to return, the police were asked to check her home address but there was no answer. Ms Morahan was found dead at her flat on 9 July 2018 with pathology evidence showing that she died as a result of an overdose of recreational drugs. There was no evidence that she intended to take her life.

At the inquest, the Coroner rejected the family’s submission that Article 2 was engaged; it was noted that Ms Morahan was not a suicide risk and although Ms Morahan was vulnerable, the Coroner concluded that neither the NHS Trust nor the police knew or ought to have known of a real and immediate risk of death. The Divisional Court rejected the claim by the family that Article 2 was engaged and the family appealed to the Court of Appeal.

The Appeal

The Appellant advanced the following three grounds of appeal:

1. The Divisional Court erred in its conclusion that Ms Morahan’s death did not occur in circumstances in which the Article 2 operation duty was arguably owed by the Trust.
2. The Divisional Court erred in not concluding that an automatic duty to hold an Article 2 compliant/Middleton inquest arose on the facts.
3. The Divisional Court erred in concluding that there was no arguable breach of any Article 2 substantive duty.

Ground 1

The Court confirmed there was no operational duty to protect Ms Morahan from the risk that killed her and that the factors identified in Rabone were not satisfied. There was no foreseeable real and immediate risk of overdose and no history of accidental overdose.

Fresh expert evidence was also introduced before the Court of Appeal, however the Court found that it did not support the position that Ms Morahan was at real and immediate risk of death at the time she failed to return to hospital.

Ground 2

The Court found 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. Ms Morahan was a voluntary patient who was free to come and go, which is very far removed from the circumstances in Rabone where the deceased was a voluntary patient who was hospitalised to protect against the risk of suicide. The automatic duty to investigate only arises where the death falls into a category which necessarily gives rise to the possibility of a substantive breach, such as prisoners or voluntary patients being treated to manage suicide risks). “That is self-evidently not the case with a voluntary patient at liberty to leave hospital and in respect of all causes of death.”[para49]

Ground 3

This ground of appeal did not arise in light of the Court’s conclusions on the existence of an Article 2 duty.

Conclusion

The key points to take home from this judgment are that:

•  The death of a voluntary in-patient does not automatically give rise to a breach of Article 2 and whether there is a breach will depend on the facts of each case.
• There still needs to be actual knowledge of a “real and immediate risk to life” on the part of the authorities.
• The operational duty is to protect against particular risks to life, not all risks to life.

The Court of Appeal acknowledged that the underlying reason for the “phenomenon” of the frequently fought issue of the engagement of Article 2 at pre-inquest hearings is because legal aid is generally available for families of the deceased at an inquest but may be granted if Article 2 applies. This should not affect the Court’s determination on the law.

Although the application of Article 2 at an inquest is a complex legal issue, this decision, together with the detailed decision at first instance should be of assistance to Interested Persons and coroners in arguing and determining whether a Middleton inquest ought to be held.

If you would like to find out more, please contact our specialist inquests team by emailing Padideh Dolatshahi or Claire Petts.