Article 2 ECHR: A Reviewof the Guidance in Morahan and Maguire

There is a myriad of potential factual scenarios upon which the engagement of Article 2 may need to be considered at any inquest, the more unusual of which cannot realistically be addressed by general guidance. But the appeal courts, through the recent cases of R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) and [2022] EWCA Civ 1410 and R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20, have now provided important clarity in two factual areas which do arise regularly, namely (i) the death of voluntary psychiatric patients and (ii) medical deaths where the deceased person has particular vulnerabilities and/or is in the care of the State to some degree.

R (Morahan) v HM Assistant Coroner for West London

The inquest into the death of Tanya Morahan had not been heard when the Coroner’s decision was challenged. The available evidence showed that, at the time of her death in 2018, and following a period of detention under the Mental Health Act for treatment of her schizophrenia, Tanya Morahan was a voluntary patient in a psychiatric rehabilitation unit and that she died from an accidental drug overdose when she was on leave in the community. Tanya, who had a known history of drug misuse, had left the unit with permission in order to organise her flat prior to her discharge. She again failed to return and, six days later, her body was found there, with post mortem evidence showing that she had died from an overdose of cocaine and morphine. There was no evidence to suggest deliberate self-harm or suicide.

The Assistant Coroner concluded that Article 2 was not engaged, on the basis that Tanya was a voluntary patient who died, in the community, from an accidental overdose. In submissions which developed over time, her family argued that the investigative duty under Article 2 arose because (i) the factual circumstances were such as to result in an automatic duty to conduct an enhanced inquest and (ii) there were arguable breaches of a substantive operational duty owed to the Deceased by the Central and North West London NHS Foundation Trust, which was responsible for the rehabilitation unit; as Tanya was not detained, the family submitted that the three factors identified in Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72 (the voluntary assumption by the State of responsibility, the Deceased’s vulnerability, and the exceptionality of the risk) were satisfied and that there was a failure to take reasonable steps to avoid the real and immediate risk of death (from accidental overdose) of which the Trust was or ought to have been aware.
The Divisional Court, and then the Court of Appeal, rejected the claim. The Divisional Court’s judgment was delivered by Popplewell LJ who thoroughly reviewed the key domestic and Strasbourg caselaw and gave extensive guidance. Popplewell LJ’s summary of the principles included the following key points:

(i) The procedural duty under Article 2 (to conduct an enhanced investigation) is entirely parasitic on an Article 2 substantive duty. The procedural duty cannot exist where there is no substantive duty, and
(ii) The circumstances in which the investigative duty, as a procedural parasitic duty, arises are twofold:

a. whenever there is an arguable breach of the State’s substantive Article 2 duties, whether the negative, systemic or operational duties; and
b. in certain categories of circumstances, automatically.

So far as the automatic engagement of Article 2 is concerned, the Divisional Court held that this could not be triggered simply by the fact that the Deceased was a voluntary psychiatric patient. Popplewell LJ explained that:

(i) The categories in which automatic engagement of Article 2 has been identified as arising include killings by state agents, suicides or attempted suicides and unlawful killings in custody, suicides of conscripts, and suicides of involuntary psychiatric detainees. These categories have been identified by a developing jurisprudence and they cannot be considered as closed,

(ii) The underlying rationale for the categories of cases which automatically give rise to the enhanced investigative duty is that all deaths falling within the category will always, and without more, give rise to a legitimate suspicion of state responsibility in the form of a breach of the State’s substantive Article 2 duties (with no fact specific assessment being required),

(iii) The touchstone for whether the circumstances of a death are such as to give rise to an automatic enhanced investigative duty is whether they fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of breach of a substantive Article 2 obligation,

(iv) In this context, legitimate grounds for suspicion connotes the same threshold of “arguability” as has to be satisfied in cases where the enhanced investigative duty does not arise automatically, and

(v) In addressing whether a category of death automatically attracts the enhanced investigative duty, the type of death is important and deaths from natural causes are not to be treated in the same way as suicides or unlawful killings.

The Divisional Court found that no automatic duty arose in relation to Tanya Morahan’s death, which was an accidental death of a voluntary psychiatric patient because (i) all voluntary psychiatric patients cannot be treated in the same way (as involuntary detainees can) as their circumstances can vary across a wide spectrum, from, at one end of the spectrum, Ms Rabone’s situation (where the power to impose involuntary detention on her should have been exercised when she tried to leave the unit) to, at the other end of the spectrum, a patient like Tanya Morahan for whom there were no medical grounds for statutory detention; a fact-specific inquiry, in each case, must therefore be required to establish where on the scale the deceased person lay, and (ii) there was no justification for extending the automatic duty to cases of accidental death.

The Court of Appeal agreed. Lord Burnett of Maldon CJ stated that the Appellant’s case entailed “an invitation to march ahead of Strasbourg in this area, an invitation which, on authority, we are bound to decline.” This was because it is a clearly established principle that a domestic court should follow and keep pace with Strasbourg jurisprudence as it evolves over time, but not jump ahead of it.

As for the submission that Article 2 was engaged because there was evidence of an arguable breach of an operational duty, this too was rejected. The Divisional Court found that, on the facts, there was no real and immediate risk of death from a cause of which the Trust was or ought to have been aware, and the Rabone factors were not satisfied in that there was no assumption of responsibility, Tanya was not particularly vulnerable (in the sense relevant to the duty), and her risk was not exceptional for the class of persons into which she fell. Further, even if the duty did arise, there was no arguable breach. Popplewell LJ emphasised the need to focus on the scope of any duty which may be owed, as there may be an operational duty to protect against some dangers but not others. The Article 2 operational duty identified and relied upon must be a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of the death. In Rabone the duty arose where the risk of suicide was the reason for the Deceased’s admission to hospital, but a psychiatric hospital will owe no duty to protect a patient from the risk of accidental death whilst on unescorted leave. Again, the Court of Appeal agreed, describing Popplewell LJ’s reasoning and conclusion as “unassailable”.

R (Maguire) v HM Senior Coroner for Blackpool and Fylde

In Maguire the Supreme Court considered the death of a very vulnerable adult from natural disease. The case concerned the death of Jackie Maguire who was 52 years old when she died in hospital. She had Down’s Syndrome and learning disabilities, lived in a residential care home, and was subject to Deprivation of Liberty Safeguards (“DoLS”). In the days before her death, she became unwell but was reluctant to accept treatment and go to hospital. Following her eventual admission to hospital, she died as a result of a perforated gastric ulcer, peritonitis and pneumonia. Prior to the inquest, the Coroner had ruled that Article 2 was engaged on the grounds that there had been an arguable breach of a substantive duty on the part of the care home, the ambulance service, the GPs or the Hospital Trust (or a combination of them) in relation to the delay in her admission to hospital and affording her access to the treatment she needed. All these concerns were thoroughly investigated at the inquest. At the end of the evidence, however, the Coroner decided that Article 2 was not engaged and, consequently, the jury was not permitted to consider any state failings and they simply returned a conclusion of “natural causes”. The Coroner’s decision was challenged by the Deceased’s family who, following defeat in the lower courts, appealed to the Supreme Court.

It is noteworthy that Lord Sales, who delivered the lengthy leading judgment of the Court, indicated in his opening remarks that the judgment of Popplewell LJ in Morahan contained “a detailed review of the relevant case-law and what I consider to be a compelling analysis of the law in this area” and he went on repeatedly to reference and endorse that review. But Maguire was, of course, concerned with a quite different factual scenario and argument. Counsel for the family argued that the procedural obligation arose because there was an arguable breach of either the systems duty or an operational duty, having regard to the facts that the Deceased was deprived of her liberty, lacked of mental capacity to make judgments about her own health, and was in the care of the State in a care home which had assumed responsibility to ensure she had timely access to healthcare services. It was argued that a protocol should have been in place for her admission to hospital, if necessary, despite her refusal.

Lord Sales considered the nature of the procedural obligation under Article 2 and stated, at para. 12,

“The precise content of the procedural obligation on a state varies according to the context in which an issue regarding the application of article 2 arises. There is no simple monolithic form of procedural obligation which applies in every such case. Rather, the procedural obligation applies in a graduated way depending on the circumstances of the case and the way in which a particular context the state may be called upon to provide due accountability in relation to the steps taken to protect the right to life”.

Lord Sales explained that the graduated nature of the procedural obligation reflects the fact that it is an implied positive duty which is not to be taken as imposing “an unreasonable or disproportionate burden” on the State, and he identified three different levels of procedural obligation as follows:

(i) A basic procedural obligation – to check whether there might be any question of a potential breach of a person’s right to life under Article 2. This obligation arises immediately upon death and will inform whether other procedural obligations come into play. It is addressed in England and Wales by the provision of a system requiring medical certification of deaths with coronial oversight.

(ii) An enhanced procedural obligation – to take further steps to investigate possible breaches of substantive obligations imposed by Article 2 with a view to ensuring appropriate accountability and redress and, as appropriate, to punishing persons responsible for the death. This obligation applies where there is a particularly compelling reason for the state to give an account of how a person came by their death, for example, where the State has used lethal force or the person has died in prison other than from natural causes. This obligation is usually satisfied by an enhanced, Article 2 compliant, inquest.

(iii) A redress procedural obligation – arises where a relevant compelling reason is not present as the foundation of an enhanced procedural obligation, but there is still a possibility that the substantive obligations in Article 2 have been breached. In these circumstances there is an obligation to provide a means by which a person complaining of such possible breaches may ventilate that complaint, have it investigated, and obtain redress. This obligation is usually satisfied by a combination of an inquest that can determine the cause of death (without any requirement of an expanded conclusion) and the availability of a civil claim for damages for negligence.

In his ruling, Lord Sales went on to review numerous Strasbourg and domestic authorities and stated that a substantial body of domestic case-law has held that, in cases of arguable medical negligence in an NHS hospital, the enhanced procedural obligation does not apply and the State’s procedural obligation (in the form of the basic procedural obligation and the redress procedural obligation) is satisfied by a combination of the holding of an inquest to determine the cause of death, without any requirement of an expanded investigation and conclusion, and the availability of a civil claim for damages for negligence. Relevant authorities included Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28 and R (Parkinson) v HM Senior Coroner for Inner London South [2018] EWHC 1501 (Admin) which established that in “medical cases”, that is to say deaths from natural disease in relation to which concerns have been raised as to access to or the provision of medical treatment and care, an arguable breach of the substantive Article 2 duties will arise only in exceptional circumstances, being (i) if the Deceased’s life had been knowingly put in danger by the denial of access to life-saving emergency treatment (and this does not extend to circumstances where the Deceased is considered to have received deficient, incorrect or delayed treatment) and (ii) where a systemic or structural dysfunction in medical services resulted in the Deceased being deprived of access to life-saving emergency treatment and the authorities knew or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising.

Against that background, Lord Sales then went on to consider the issues arising in the appeal by analysing, on the facts, whether there an arguable breach of the systems duty or an operational duty on the part of the care home or any of the health care providers, so as to trigger the enhanced procedural obligation.

The Supreme Court found no breaches of the systems duty on the part of the care home or the healthcare providers. Lord Sales emphasised that the systems duty operates at a high level and will often be satisfied simply by the existence of a system capable of being operated in a timely and effective way. Generally, individual lapses or failures, even if negligent, will not amount to a breach of the systems duty. There had been systems in place capable of providing a proper standard of care to Jackie Maguire, and the Court criticised the Appellant’s approach for attempting to “reverse engineer” its case by “looking at what happens to have gone wrong in Jackie’s case and then trying to formulate an alleged obligation tailored to that case”. Rather, the proper approach to the systems duty is to assess what the relevant body could reasonably be expected to have had in place in advance of any particular incident. It was almost always possible to say that a system could be improved by dedicating more resources to its operation, but this does not mean it is inadequate and it is not for the court to consider how limited resources should be allocated between competing priorities.

As for potential breaches of any operational duty, Lord Sales stated that the State does not assume responsibility for all aspects of an individual’s physical health when they are a resident in a care home or a hospital; it is important to ask whether there was any specific risk to life of which the authorities were aware. On the facts, the care home and healthcare professionals were not, and could not have been, aware of a risk to the Deceased’s life. Overall, therefore, in this “medical” case, Article 2 was not engaged on any basis despite the Deceased’s very significant vulnerabilities and the fact that she was subject to a DoLS.

This article was originally published in the 6th issue of ‘Insight’, 5 Essex Chambers Inquests and Inquiries publication, edited by Alison Hewitt and Jonathan Landau.

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Authors

Alison Hewitt

Call 1984

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