Jessica Morahan, R (on the application of) v His Majesty's Assistant Coroner for West London

The procedural obligation under article 2 of the Convention is parasitic upon a possible violation of a substantive obligation. It does not arise through free-standing categories of death. An automatic investigative obligation exists only where the category of death necessarily raises the possibility of a substantive breach.

An operational duty protects against a particular risk to life. A real and immediate risk is necessary but not sufficient. A voluntary psychiatric patient who is genuinely free to leave is not, by that status alone, owed protection against every cause of death. A general risk of future harm or accidental death from recreational drug use does not constitute a real and immediate risk. Domestic courts should apply clear and constant Strasbourg jurisprudence without extending Convention rights beyond established principles.

Tanya Morahan, a voluntary psychiatric patient receiving rehabilitation for schizophrenia, died in her flat from cocaine and morphine toxicity. She had previously misused illicit drugs but had been abstinent for several months. She presented no history of suicide attempts or accidental overdose and was genuinely free to leave the rehabilitation unit.

The coroner decided that the circumstances did not require an inquest satisfying the procedural obligation under article 2 of the Convention. The Administrative Court upheld that decision in [2021] EWHC 1603 (Admin). The deceased’s mother appealed.

The central issues were whether the Trust arguably owed an operational duty to protect the deceased against accidental death from recreational drugs, whether the death of any voluntary psychiatric patient automatically required an article 2-compliant inquest, and whether any substantive duty had arguably been breached.

1. Appeal dismissed. The coroner correctly concluded that the Trust owed no operational duty under article 2 to protect the deceased against accidental death from recreational drug use. Consequently, the parasitic procedural obligation to conduct a Middleton inquest did not arise.

2. The article 2 procedural obligation can arise only where it appears that a substantive obligation has been or may have been violated and state agents are or may be implicated. A death automatically triggers that obligation only where its category necessarily raises the possibility of a substantive breach. The court respectfully disagreed with R (Letts) v Lord Chancellor [2015] 1 WLR 4497 insofar as it suggested that free-standing categories could trigger the procedural obligation independently of a possible substantive breach.

3. An operational duty protects against a particular risk to life, rather than every risk. A real and immediate risk of death is necessary but not sufficient for the duty to exist. Relevant indicia include the state’s assumption of responsibility, control over the individual, vulnerability and whether the risk is exceptional rather than an ordinary risk encountered by the relevant class of person.

4. There was no real and immediate risk of accidental death from drug use of which the Trust knew or ought to have known. The deceased had no history of suicide or accidental overdose, had repeatedly tested negative for drugs, and remained mentally stable. A long-term drug user’s general or even high risk of serious harm or accidental death at some future time is not the specific real and immediate risk required by article 2.

5. Voluntary psychiatric patients who are genuinely at liberty to leave are not automatically owed protection against all risks of death. The circumstances were materially different from hospital treatment directed at a suicide risk where the patient would otherwise have been detained. An automatic duty could not arise irrespective of the cause of death merely from voluntary-patient status.

6. The proposed extension would move beyond established Strasbourg jurisprudence. Domestic courts must keep pace with its clear and constant development, but should not move ahead of it unless applying established principles compellingly requires the development. No such requirement arose here.

7. Whether article 2 applies affects whether the conclusion is framed in Middleton or Jamieson terms. It does not alter the scope of the coroner’s investigation or the breadth of the inquest. The third ground, concerning arguable breach, did not arise because no operational duty existed.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1410, dismissed the appeal and upheld the conclusion that neither an article 2 operational duty nor the parasitic procedural duty arose.
• High Court, Administrative Court (Divisional Court): In [2021] EWHC 1603 (Admin), upheld the coroner’s decision. It found no automatic investigative duty, no operational duty concerning accidental death from recreational drug use, and no arguable breach.
• Assistant Coroner for West London: Ruled on 23 September 2019 that the circumstances did not require an article 2-compliant inquest, while keeping that conclusion under review should the evidence develop.