When is the Coroner’s enhanced investigative duty under article 2 engaged? Case comment – R (Morahan) v Her Majesty’s Assistant Coroner For West London [2021] EWHC 1603 (Admin)

This article seeks to outline the recent decision by the High Court as to whether an inquest was required which engaged the enhanced investigative duty under article 2 (commonly known as a Middleton inquest (R (Middleton) v West Somerset Coroner [2004] 2 AC 182)).

The decision provides important guidance as to when the Coroner’s enhanced investigative duty under article 2 will be established, especially in the context of a death arising in a healthcare scenario.

The decision can be accessed here: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1603.html

The issue on appeal:

The issue on appeal was whether ‘there is a duty to hold a Middleton inquest 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.’

At first instance the coroner held that there was no Middleton investigative duty which arose in these circumstances. The appellant submitted that the circumstances were such that they gave rise to an automatic duty to hold a Middleton inquest, or, in the alternative, that the duty arose due to an arguable breach of article 2.

The law:

Article 2 ECHR provides for the right to life. As noted by the Court at [30], article 2 gives rise to three separate duties on states and those exercising state duties:

1. The negative duty, to refrain from taking life without justification.
2. The positive duty which includes:
   1. The framework duty, to put in place a legislative and administrative framework to protect the right to life – note in a healthcare context this includes having effective administrative and regulatory systems in place (Rabone & Anor v Pennine Care NHS Foundation [2012] UKSC 2 at para 93).
   2. The positive operational duty, to take positive measures to protect an individual whose life is at risk in certain circumstances.
3. The enhanced investigative duty, this duty is ‘parasitic on the possibility of a breach by a state agent of one of the substantive operational or systems duties’ and requires there to be an effective public investigation by an independent official body.

The Court’s focus in this case was with the application of the positive operational duty and the enhanced investigative duty.

Guidance:

The positive operational duty:

At [38] the Court noted that this duty ‘arises where the state agency knows or ought reasonably to know of a real and immediate risk to an individual’s life, and requires it to take such measures as could reasonably be expected of it to avoid such risk’.

The Court noted the previous guidance as to this statement as follows:

• Risk means a significant or substantial risk, as opposed to one that is remote or fanciful;
• Immediate means a risk that is ‘present and continuing’ as opposed to one that is ‘imminent’;
• The risk must be to life, even serious harm will not suffice;
• The term real directs the focus as to what was or ought to have been known at the time.

The Court noted this is a ‘stringent’ test which will be harder to establish than ‘mere negligence’ because the risk must be one that is real and immediate; not reasonably foreseeable.

On a review of the applicable caselaw for the circumstances of this case the Court derived three important principles:

1. Whether the operational duty exists ‘is not to be analysed solely by reference to the relationship between the state and the individual, but also, and importantly, by reference to the type of harm of which the individual is foreseeably at real and immediate risk.’
2. It is necessary to be able to identify the risk of the type of harm involved.
3. Where the circumstances involve the provision of care for a vulnerable individual and some control is exercised over that person, ‘the question whether an operational duty is owed to protect them from a foreseeable risk of a particular type of harm is informed by whether the nature of the control is linked to the nature of the harm.’ Put simply, the nature of the control must be linked to the risk of harm; where there is no link, there can be no justification for imposing the operational duty.

The enhanced investigate duty:

Upon a review of the caselaw the court derived the following principles at [122] as to when the enhanced investigative duty arises and as to when it arises automatically:

1. There is a duty on the state to investigate every death.
2. In certain circumstances there is an enhanced duty to investigate which may be fulfilled by a Middleton
3. This is a procedural duty which is parasitic on the existence of a substantive duty.
4. There are two circumstances in which the enhanced investigative duty arises:
   1. There is an arguable breach of the state’s substantive article 2 duties; and
   2. In certain scenarios it will rise automatically.
5. The categories under 4(b) above are developing, not closed, and include cases where the killing was by a state agent, suicide in custody and suicide of an involuntary mental health detainee.
6. The reason for certain categories of case automatically qualifying is because in each of those cases there is ‘legitimate suspicion of state responsibility in the form of a breach of the state’s substantive article 2 duties.’
7. The key question as to whether the circumstances are such that they 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.’
8. Legitimate grounds for suspicion is to be determined by the threshold of arguability – i.e. is it arguable that there is a legitimate ground to suspect state responsibility by way of breach of a substantive article 2 obligation.
9. In assessing whether the automatic qualification applies, the type of death will be important – natural deaths are to be treated differently from unnatural deaths.

Application to the facts of this case:

The Court held that no operational duty was held to the deceased in this case. This was because, on the facts, there was no real and immediate risk of death which the Trust was or ought to have been aware of. Consequently, the Court held that there could be no arguable operational duty and no arguable breach.

The Court further held that there could be no automatic enhanced investigative duty because such a duty is dependent on the existence of an arguable operational duty.

The Court further held that the Trust had not assumed responsibility for treatment of the deceased for drug addiction of a life-threatening nature and although the deceased was vulnerable within the colloquial use of the term, she was not vulnerable in the context of article 2: her vulnerability was unconnected to harm that which it was said the Trust owed a duty to protect her from.

Furthermore, the Court considered that a voluntary psychiatric patient was not to be treated the same way as an involuntary detainee. The deceased’s position could not be held to be equivalent to that of a detained patient. In any event, this is a factual inquiry and on the facts of this case it could not be said that her residence was not truly voluntary.

The Court further noted that in cases where death was accidental, this could not give rise to the legitimate suspicion of state responsibility and, therefore, could not justify the automatic imposition of the enhanced investigative duty.

Comment:

The case provides an interesting and worked example of the limits of the Coroner’s duty to hold a Middleton inquest. The relevance of the Court’s decision is that where the enhanced investigative duty is not met, the questions to be answered by the inquest are limited to the four statutory questions under section 5(1) of the Coroners and Justice Act 2009. Consequently, where a Middleton inquest is not engaged there is no consideration as to ‘in what circumstances’ the death occurred and therefore the opportunity to provide an opinion on fault is limited.

The Court’s decision demonstrates that whether article 2 is engaged will be dependent on the facts of the particular case. Whilst the decision does not oppose the development of further circumstances which automatically engage the enhanced investigative duty, the test provided by the Court does limit the type of cases that may qualify.

Overall, the Court’s decision is a strong reminder that article 2 is not easily engaged and that whilst Coroner’s have a broad discretion it remains a stringent test.

Nathan Davis

Nathan has a developing inquest practice and has experience in both jury and article 2 inquests.

Contact Nathan’s clerks

Madeleine Gray on 0113 202 8603

Patrick Urbina on 0113 213 5250