As the arguments about whether an inquest should be a wider ‘Article 2’ inquiry rumble on in Coroners’ courts up and down the country, we now have the latest chapter on this from the Court of Appeal. The case of Morahan involved a voluntary psychiatric patient who died from recreational drugs use.
The Court of Appeal ruled that this case did not require an Article 2 inquest because the relevant duty on the State is to protect against particular ‘real and immediate’ risks to life (not all risks). Interestingly, there was also a firm reminder from the Court of Appeal that inquests are supposed to be a “relatively summary process” and that arguments about Article 2 can lead to unnecessary complexity and delay.
In this briefing, we look in more detail at the Morahan ruling and how it can be useful for you.
What was the case about?
Ms Morahan had a diagnosis of schizophrenia and a history of drug use. At the time of her death, she was a voluntary inpatient at a psychiatric rehabilitation unit. She went out on unescorted leave, but she was found dead at her flat some days later. The cause of death was cocaine and morphine toxicity, after recreational drug use. There was no evidence to suggest that she had deliberately ended her own life.
Whether there needs to be an ‘Article 2 compliant inquest’ turns on whether there has been an arguable breach of the State’s obligations under the ‘right to life’ in Article 2 of the European Convention on Human Rights. Often the focus is on whether there was a ‘real and immediate risk’ to the deceased’s life, which the State (the NHS Trust in charge of her care) either knew about, or ought to have known about (referred to as the ‘operational duty’), the duty then being to take reasonable steps to protect her from that ‘real and immediate’ risk.
The Coroner noted that in this case, Ms Morahan was not a suicide risk and that it was only speculation that she would have been detained after failing to return from leave. As a result, the Coroner concluded that the Trust neither knew, nor ought to have known, of a real and immediate risk to life and therefore an Article 2 inquest was not required.
Ms Morahan’s family challenged the Coroner’s decision to the High Court; which agreed with the Coroner that there was no need for an Article 2 inquest in this case. The family then appealed that decision to the Court of Appeal.
What did the Court of Appeal decide?
The Court of Appeal agreed with the Coroner and the High Court that this case did not require an Article 2 inquest, for the following reasons:
- Firstly, there was no Article 2 duty to protect Ms Monahan from the particular risk that caused her death - i.e. the risk of accidental death from recreational drug use. Therefore, this was not a ‘real and immediate risk’ to life that the Trust knew or ought to have known about. As the Court of Appeal said: “There is no authority … that an Article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death”.
- Secondly, this scenario did not fall within the ‘automatic’ Article 2 categories - e.g. where a patient ends their own life whilst detained under the Mental Health Act, or where a voluntary patient is being treated to manage a suicide risk and would be detained if they chose to leave hospital. Ms Monahan’s family argued that these ‘automatic’ Article 2 inquest categories should include all voluntary psychiatric patients. However, the Court of Appeal rejected that argument, underlining that an accidental death from recreational drug use by a voluntary patient who was genuinely free to come and go from hospital, did not fall within any of the existing categories, and there was no lawful authority for expanding those categories.
This judgment is useful in confirming that not all types of risk must be guarded against by the State in relation to the ‘right to life’, and the ‘automatic categories’ for Article 2 have not been extended.
Interestingly, the Court of Appeal also took this opportunity to express some frustration about Article 2 arguments delaying the fact-finding process. It was noted that the underlying driver for this is sometimes the potential availability of legal aid for families (which many will recognise as understandable). The Court of Appeal commented:
“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 these features are being lost in some cases”.
Those involved in complex medical or care inquests, may disagree with the Court of Appeal’s view that an inquest is a ‘relatively summary process’, and will also know that in many cases ‘inquisitorial’ does not mean simple or without robust argument.
How DACB can help
We have the largest national team of inquest lawyers, with a wealth of experience supporting providers and individuals across the health and social care sector. We provide expert advice throughout the inquest process, from relatively straightforward medical deaths to the highest profile, complex Article 2 inquest cases involving a jury and multiple interested persons. We regularly advise on Article 2 and its application and impact in inquests.