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<p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/">Richard Copnall</a></strong></p>
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<p><strong>The background</strong></p>
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<p>Tanya Morahan was 34 years old. Her first contact with mental health services was 10 years earlier, when she was diagnosed with drug induced psychosis. She was later diagnosed with schizophrenia and was treated as an inpatient on several occasions, including a number of detentions under the MHA. She was repeatedly assessed as posing a “high risk” to herself from drug use. At the time of her death, she no longer satisfied the criteria for detention under the MHA and was a voluntary in-patient at a psychiatric unit operated by an NHS trust (“the Trust”). She had a history of illicit drug use but had been abstinent for many months. As a result of her abstinence, her tolerance to drugs had been significantly reduced. She failed to return to the ward as expected, following a visit to her flat. Some (unsuccessful) attempts were made to contact her and the police were alerted. Her body was found 6 days later in her flat. She had died a few days earlier from cocaine and morphine toxicity.</p>
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<p>The family invited the coroner to undertake an enquiry that would comply with the Art2 investigatory obligation. The coroner refused and the family sought a judicial review.</p>
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<p>In June of last year, the Divisional Court (Popplewell LJ, Garnham J and HHJ Teague KC (the Chief Coroner)), [2021] EWHC 1603 (Admin) found that there was not, even arguably, a substantive Article 2 duty owed and therefore no Art2 investigatory duty arose. The family appealed.</p>
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<p><strong>The decision</strong></p>
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<p>Following a hearing in early July this year, the Court of Appeal has now handed down its judgment. Lord Burnett, Lord Chief Justice, Nicola Davies and Baker LLJ unanimously upheld the decision of the Divisional Court. Although the result may not come as a great surprise to many practitioners on its facts, the judgment includes some interesting, and perhaps problematic, <em>dicta</em>. It is essential reading for anyone practicing in the coroner’s court.</p>
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<p><strong>The law</strong></p>
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<p>The court set out the following principles:</p>
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<ol type="a"><li>Some categories of death, without more, trigger the investigative duty because the death necessarily gives rise the possibility of a substantive breach. An example of this is the death of a person in state detention.</li><li>The mere fact that the deceased was a voluntary psychiatric in-patient, does not place the death within that automatic category.</li><li>The existence of, and the defendant’s actual or constructive knowledge of, a “real and immediate” risk to life is a pre-requisite to the operational duty arising at all, (rather than being relevant to breach).</li><li>If an operational duty arises, it is to protect against particular risks to life, not all risks. </li></ol>
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<p><strong>The reasoning</strong></p>
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<p>The court found: “<em>44 </em>[Evidence that the deceased had lost her tolerance to drugs as a result of abstinence] …<em>does not support the proposition that <strong><u>at the time [she] failed to return to hospital</u> </strong>she was at a real and immediate risk of death…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.” </em>(Emphasis added)</p>
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<p>In other words: the defendant did not know (and could not reasonably have known) that the deceased was at a “real and immediate risk” of death from recreational drug use. Accordingly, there was no Art2 operational duty to protect the deceased from her cause of death and no (parasitic) Art2 investigatory duty.</p>
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<p>The finding that the Trust did not have knowledge of a “real and immediate risk” disposed of the appeal.</p>
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<p><strong>A missed opportunity </strong></p>
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<p>Having decided the case on its facts (no knowledge of risk) the court chose not to offer any new guidance on how to identify the existence of an Art2 operational duty. The passage above expressly deals with the point in time at which she did not return to the ward. However, was there, for example, a “real and immediate risk” when the deceased took the drugs, or later still when she became unconscious? If a member of the Trust’s staff had been present at that time (and therefore had knowledge), would there have been an Art2 duty to intervene? Unhelpfully, the judgment does not ask or answer this question.</p>
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<p><strong>Delay and cost – a shot across the bows?</strong></p>
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<p>The court noted that:</p>
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<ol type="a"><li>The application (or not) of the Article 2 procedural obligation will not affect the scope of the investigation or the breadth of the inquest;</li><li>Arguments about whether Art2 applies often causes undesirable delay;</li><li>The underlying reason for this is that Legal Aid is generally not available unless Art2 applies;</li><li><em>“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. </em>T<em>his 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.”</em></li></ol>
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<p>Although <em>obiter, </em>this is, perhaps, the most important passage in the judgment and may herald a change in coronial and judicial direction? For busy coroners struggling to balance their budgets whilst attempting to clear the Covid backlog, it will surely be seized on as justification for shorter (and cheaper) inquests, culminating in more limited conclusions. Possibly good news for public authorities (and the public purse), but maybe not for the families of the deceased?</p>
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<p><strong>Conclusion</strong></p>
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<p>Practitioners might take away the following key points:</p>
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<ol type="a"><li>The death of a voluntary psychiatric in-patient does not, automatically give rise to an arguable breach of Art2. Whether there is an arguable breach will depend on the particular facts. On the facts of <em>Rabone</em> (where the voluntary patient would have been detained if she had tried to leave), there was an arguable breach, in the present case, there was not.</li><li>Where an operational duty arises, it does so in relation to a specific risk or risks of death, not all risks of death.</li><li>Actual, or constructive knowledge of a “real and immediate risk” of death is a pre-requisite to the duty arising (rather than an issue relating to breach).</li><li>In the present case, there was no actual or constructive knowledge of that risk, so no duty arose.</li><li>The judgment offers no new guidance on how to identify an Art2 operational duty in general, or specifically in relation to a voluntary psychiatric patient.</li><li>The court was critical of the cost and delay of arguments over Art2 inquests and of the increase in length and cost of inquests in response to the requirements of Art2. This may herald a move to shorter and cheaper inquests?</li></ol>
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