AC-2024-LON-002499 - [2025] EWHC 2131 (Admin)

The analysis of the claim can be usefully divided into two parts (1) the failure to take reasonable measures; (2) the risk to life.

The starting-point is that the coroner found that there was an assumption of responsibility. Thus, following Popplewell LJ in Morahan at para 38 (as approved by the Supreme Court in R (Maguire) v HM Senior Coroner for Blackpool & Fylde & Anor. [2021] UKSC 38 at paras 4 and 13), the sole question is whether it is arguable that the positive operational duty to protect life is engaged.

For the risk to life, the operational duty requires consideration of the arguability of a refined question: whether or not it is arguable that there was a foreseeable significant or substantial present and continuing risk to the deceased’s life (“the risk to life”). The answer to the arguability question turns on a more detailed examination of the key constituent terms of the test. The relevant risk must be to life rather than of harm, even serious harm (G4S Care and Justices Services Ltd v Kent County Council [2019] EWHC 1648 (QB), paras 74-75 and R (Kent County Council) v HM Coroner for the county of Kent [2012] EWHC 2768 (Admin) at paras 44-47).

Failure to take reasonable measures

The claimant relies on para 138 of Van Collev Chief Constable of Hertfordshire Police [2009] 1 AC 225 (“Van Colle”). There Lord Brown of Eaton-under-Heywood said:

“As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter— the one year (albeit extendable) limitation period under section 7(5) of the Human Rights Act comparable to the one year permitted for defamation claims intended, analogously, to vindicate a claimant’s reputation. It is also why section 8(3) of the Act provides that no damages are to be awarded unless necessary for just satisfaction. It also seems to me to explain why a looser approach to causation is adopted under the Convention than in English tort law. Whereas the latter requires the claimant to establish on the balance of probabilities that, but for the defendant’s negligence, he would not have suffered his claimed loss—and so establish under Lord Bingham’s proposed liability principle that appropriate police action would probably have kept the victim safe—under the Convention it appears sufficient generally to establish merely that he lost a substantial chance of this.”

The question, repeated in Savage [2009] 1 AC 661 at para 82, is whether the deceased “lost a substantial chance” of avoiding the risk. There is a danger here of hindsight. To review the position: no witness saw any fall by M in the hospital. It is possible that he fell, but it is speculative to attribute his “change of position” to a fall. It must be remembered, as I was reminded at the oral hearing, that he was very mentally unwell. To pinpoint the injury to a further fall in the absence of anyone witnessing it and given the lack of clarity about its origins from the medical witnesses raises obvious problems. The injury might have been from a fall, despite no one witnessing it, but it might not have been.

The list of alleged failures levelled at the Trust needs to be connected, in the Van Colle sense, to the loss of a substantial chance of avoiding death. The difficulty is in attributing these defective or suboptimal practices to depriving M of a substantial chance of avoiding death by preventing a fall (not seen or witnessed) that may or may not have caused the fatal injury to his head (unproven). The difficulty arises as the injury can only “possibly” be attributed to the unwitnessed fall. The speculative nature of this argument emerges from para 79(a) of the SFG. There it is confirmed that Mr Thakur’s evidence was that it is “possible” that the subdural hematoma which caused Mahamoud’s death was a result of a further head injury sustained by M at Mile End Hospital. This is supported by Professor Thom. See also para 81d., where it is said:

“Mr Thakur’s evidence that Mahamoud’s state of incontinence of urine could have been a sign of a seizure, and that he could have sustained a head injury as a result of this.”

However, while Mr Thakur’s opinion that a hospital fall was far likelier than previous falls to be responsible for the subdural hematoma, the high-point of his evidence remained that it was only “possible” that a hospital fall caused the fatal injury. To the extent that the evidence of Dr Boavida is supportive, it is that (as summarised at SFG, para 81c.):

“the presence of an enlarged parieto-occipital extra calvarial haematoma and an additional right temporal haematoma upon Mahamoud’s admission to Royal London Hospital is supportive of the possibility that Mahamoud sustained a further fall / head injury.”

One sees the repetition of the theme: that of possibility. Therefore, the state of the medical evidence on causation does not rise above a possible causal contribution from a fall that was unwitnessed and thus essentially conjectural. Turning back to the necessary arguability question, the limitations of Mr Thakur’s evidence count against the real prospect of success on this ground. There is a strong element of speculation about the mechanism of death and this is directly connected to the question of the loss of a substantial chance in Van Colle/Savage terms.

I judge that this ground is not arguable.

Risk to life

It is also clear from Van Colle that the operational test is a “stringent one” (per Lord Brown of Eaton-under Heywood at para 15). As said in Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72 at paras 36-37, and noted in her ruling by the coroner:

“It will be harder to establish than mere negligence, but that is not because reasonableness here has a different quality to that involved in establishing negligence; rather it is because it is sufficient for negligence that the risk of damage be reasonably foreseeable, whereas the operational duty requires the risk to be real and immediate.”

As Lord Carswell stated in Re Officers L [2007] 1 WLR 2136 at para 20, an “immediate” risk is one that is “present and continuing”. In her ruling, the coroner noted, with factual accuracy, that following the two falls, “neither CT scan showed any intracranial bleeding, he had been under a period of observation having been admitted at Homerton Hospital with no evidence of risk to his life and he had been ‘medically cleared’ before being transferred to Mile End Hospital.” The fact that the CIWA score “might” have been higher if M had been able to cooperate adds little of substance. It is speculative whether it is likely or probable that the score would have been higher. The Trust’s in-patient alcohol detoxification guidelines (v.3.0) indicate that “scores of twenty or more indicate severe alcohol withdrawal and a risk of Delirium Tremens and seizures.” However, the fact that M was at risk of seizures does not equate with a significant or substantial risk to life that is immediate in the sense of being “present and continuing”.

While it is arguable that there was a risk of serious injury to M, I cannot detect an arguable evidential basis to establish the necessary risk of death. A risk of serious injury is insufficient to meet the operational test. Further, counsel’s argument may have force as a possible explanation of the mechanism of death through an additional fall at some point while M was not being observed. But one must return to the applicable test: whether there was a risk of death in the recognised sense. Even if it is possible that death was causally contributed to by the additional fall in the hospital (if there was one), the question is whether the possibility of a further fall meets the risk test: once M was detained involuntarily in the hospital was there a foreseeable significant or substantial present and continuing risk to his life? As counsel recognised, the previous CT scans following the falls were neurologically and medically “unremarkable”. In this medical context, it is not arguable that the risk was elevated to a substantial risk to life. Therefore, crystallising the risk question after M was being observed, there was a need for it to be foreseeable that there was a substantial risk to his life. I cannot find that this is arguable.

I note that Turner J ruled that the coroner was “in the best position to determine” the arguability of the risk to life. This must be true. However, and as a crosscheck, I have sought to examine everything presented to me, not to make the ultimate decision myself, but to assess whether there is an arguable basis that there was indeed here a real and immediate risk to life. I find no arguable basis that there was. Accordingly, there is no arguable basis that the coroner’s decision was “irrational” or “unlawful”, as submitted.