R (Lewis) v Senior Coroner for North West Kent [2020] EWHC 12 February 2020*

A coroner who chooses not to give reasons for a controversial decision may as well hand the aggreived interested person their acknowledgement of service for the forthcoming judicial review claim along with the record of inquest.   Giving reasons is a fundamental aspect of judicial decision making: the person losing an argument in court is entitled to know not only that he has lost but why.

In this case a psychiatrically unwell patient detained in a forensic secure unit had died from malnutrition. The senior coroner refused to leave neglect to a jury without giving any reasons for deciding not to do so.  The senior coroner’s decision was flawed on two counts: not only due to an absence of reasons, but, as the Divisional Court found, because it was also not reasonable on the evidence to fail to leave a finding of neglect open to the jury in the “somewhat disconcerting” circumstances of the case.

Namiq v Manchester University NHS Foundation Trust  [2020] EWCA (14.2.20) judgment summary here

Readers of this blogger's generation will already know that the answer to the Meaning of Life is 42.  The Court of Appeal have now addressed a question too momentous for even Douglas Adams to tackle - what is the meaning of death? [1]

Last month in Manchester University NHS FT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) here Lieven J was asked to consider the heart-rending issue of whether ventilation should be withdrawn from a severely brain injured baby. (see our related blog here).

The Supreme Court had already confirmed in a number of appeals (including those launched on behalf of both Charlie Gard and Alfie Evans), that the Judge must apply the best interests tests in serious medical treatment cases.  However, here the Trust’s position was that the child was in fact already dead and that there can be no best interests assessment of a person who is no longer legally alive.   Hence, said the Trust, the Court’s function in Midrar’s case was to assess whether the relevant clinical testing had established that he was brain stem dead.   In contrast, in addition to arguing that the brain stem testing had not been properly carried out, Midrar’s parents argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating his body should be removed.

One difficulty was that, despite clinicians and paramedics regularly declaring life to be extinct, there is no legal definition of death in any statute.  Death is clinically and not legally defined.  Although the common law position was considered in 1993 when the House of Lords reviewed the position of Tony Bland who had been in PVS for three years after being caught in the Hillsborough crush. Although Tony Bland had no consciousness his brain stem was still functioning, which controlled his heartbeat, breathing and digestion, and as such, said their Lordships, he was not dead.  Indeed, the medical consensus that death was to be diagnosed by an absence of brain stem function was expressly endorsed in Bland[2]

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin) 12.9.19 (judgment here)

Regular readers of our blog will recall this case dealing with the tricky issue of whether Art 2 obligations are engaged when a person dies whilst receiving psychiatric care in the community. (See the earlier blog here)

In Lee v HM Assistant Coroner for Sunderland HHJ Raeside QC produced a complex extempore judgement that provided the very simple answer: you need look no further than Lord Dyson's explanation at paragraph 34 of Rabone, when he analysed the potential engagement of the operational Art 2 duty by reference to the threefold factors of assumed responsibility, vulnerability and risk

However the judge deftly sidestepped answering the question on the particular facts of the case before him and instead remitted the case back to the coroner to decide.  HM Assistant Coroner for Sunderland has now had a second bite at the cherry and produced an elegant set of reasons for her finding again that Art 2 was not engaged.  Although, as a decision by a coroner, the reasoning has no precedential weight, those reasons attached here are well worth reading for their detailed exposition of the application of Art 2 to inquests and a clear example of how to apply the indicia in Rabone to the facts of a particular case.

 

 

 

 

Jordan v The Chief Constable of the PSNI [2019] NICA 61.  15 November 2019 (judgment here)

The latest instalment of the long running Pearse Jordan inquest saga provides an important warning to all coroners and other public bodies involved in Article 2 investigations where there is delay in coming to inquest because of shortcomings on the part of a public body (including the court).

Mr Jordan’s family have now had their second award of damages upheld by the Northern Irish Court of Appeal. The appeal court found that a sum of £5,000 represented ‘just satisfaction’ for the exacerbation of the bereaved’s ‘feelings of frustration, anxiety and distress’ arising from 14 months of culpable delay in bringing the case to inquest.   This assessment of damages took into account that an award of £10,000 had already been made by the European Court of Human Rights in 2001 as compensation for earlier delays in investigating Mr Jordan's death.

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin) 12.9.19 (judgment here)

It is now commonplace in advance of inquests for coroners to rule on their scope, including whether possible state responsibility requires the inquest to meet the UK’s Art 2 procedural obligations. That task is not easy when the extent of Art 2 involves a complex question of law to be applied in factual circumstances that are often still to be uncovered. Added to that, the jurisprudence of the Art 2 duty is still evolving as its boundaries are repeatedly explored by the courts as new circumstances are presented for consideration.

The case of Rabone v Pennine Care NHS Trust[1] was one such new circumstance and considered whether there was an operational duty owed under Article 2 to informal psychiatric in-patients who were not detained under the Mental Health Act. Although Melanie Rabone died when on leave outside of hospital the Supreme Court considered that the operational duties did extend to the circumstances of her case - taking account of her extreme vulnerability and the exceptional nature of the risks alongside the degree of responsibility and control assumed by the NHS Trust.

Following Rabone the question arises of whether Article 2 procedural obligations might be engaged after the death of a person who is a mental health patient receiving care in the community.   In this blogger’s experience several coroners (and NHS Trusts facing civil claims) have since accepted that an Art 2 duty can be owed to a community patient, particularly where the alleged shortcomings include a failure to admit a vulnerable person who was at obvious and imminent risk of suicide. However until recently no challenge to a coronial decision on the application (or non-application) of Art 2 at a community patient’s inquest has been reported from the higher courts.

The applicant in R (Lee) v HM Assistant Coroner for Sunderland has now invited an important extension of the law beyond Rabone. However, if you are hoping for clear or simple answer to this vexed question be ready for disappointment. To paraphrase this very lengthy extempore judgment - delivered by HHJ Raeside QC after hearing two days of legal argument –  it is all very complicated and will always depend on the facts.

Dyer v Assistant Coroner for West Yorkshire [2019] EWHC 2897 (Admin) 30 October 2019 (judgment here)

If the tribunal, the lawyers and the jury who will be making the decision can watch a witness as they give live evidence one might ask why should it matter if the rest of the public and press might not see the witness' face?

However it matters a great deal if one is to have any respect for the constitutional principle of open justice which, as one of the core safeguards in our judicial system, should be fundamental to all courts and tribunals exercising the judicial power of the state.

In Coroners courts, as in the rest of the British justice system, the notion that justice should not just be done, but also be seen to be done is far more than an often repeated trope; it is something that rightly weighs heavy when the loss of a life is at the centre of the inquiry, and particularly so when agents of state are implicated in the tragic death of a black man in custody.  It is, therefore, unsurprising that in the recent case of Dyer heavy justification was required for preventing the deceased’s parents, partner and son from watching the faces of the police witnesses whilst they gave their inquest evidence.

Although balancing potential risks to police officers from those who may wish them harm could justify their giving evidence behind screens and so not open to public scrutiny, it was a step too far, held Mrs Justice Jefford, to also prevent the close family of the deceased from seeing the relevant officers’ faces.

The Notification of Deaths Regulations 2019 [1] (here) come into effect on 1 October 2019 and will place a legal duty on ALL doctors who come to know of a death to ensure it has been reported to a Coroner where any of the circumstances that might trigger the Coroner’s investigatory duties appear to be present.  

Although for over half a century, under the Births and Deaths Registration Act 1953[2] the deceased’s ‘attending medical practitioner’ (‘AMP’) has been required to provide the Registrar with a medical certificate of the cause of death (‘MCCD’), until now there has been no statutory obligation upon the AMP, or any other doctor, to either directly notify the Coroner or ensure the Coroner has been informed by another medical colleague of a death falling within the Coroner’s jurisdiction.[3]

The circumstances in which the doctor's notification duty will now arise largely parallel those situations falling under s.1(2) Coroners and Justice Act 2009 which would give rise to the Coroner’s own investigatory duty – i.e. when the doctor suspects the death was violent or unnatural (including from neglect or self-neglect) or that it occurred whilst the deceased was in state detention or where the cause of death is unknown or the identity of the deceased is not established.

"Better safeguards with the additional scrutiny of deaths"

Previously it would often be the Registrar or a Police Officer who would notify the Coroner of a death in the community. From tomorrow, wherever a  a notifiable death has occurred of which a doctor is  aware that death must also be reported directly to the Coroner by a medical practitioner.

Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB), 25 July 2019 (judgment here)

The funding of representation for the bereaved at inquests is not just an un-level playing field, but a total quagmire often more akin to the aftermath of an outing of the 1988 Pontypool front row on a rainy day in December. The costs of representation at an inquest will only be met from public funds in cases deemed to be ‘exceptional’ (where, as a minimum, Art 2 is engaged or where it can be shown that the provision of advocacy for the bereaved family at the inquest is likely to produce significant benefits for a wider class of people). Calls for non-means tested funding for the bereaved, even though supported by the Chief Coroner,[1] have been rejected.[2] [3] Even the families of those killed in the London Bridge attack were told it was not in the public interest for them to receive state funding at the inquests.[4]

Against that background, it is unsurprising that there is a growing body of case law regarding the recovery of the bereaved’s inquest costs as part of the costs of a subsequent successful civil claim. The amounts at stake can be very large even though the civil claim will often settle pre-action following pejorative inquest findings.

Some of the principles in play are now helpfully set out in the recent case of Fullick – an appeal of a Deputy Master’s order that the Met Police should pay costs of over £88,000 following the pre-action settlement of a claim for damages for breach of Art 2, negligence and misfeasance in public office in a death involving the police.

The decision is worth a read for its consideration of the purpose and function of an inquest, as well as its setting out of the principles underpinning the recoverability of inquest costs.

Procedural Notes from the ‘Birmingham Pub Bombings’ and ‘Deepcut’ Inquests

We all like a free helping hand, and so at the UKIL Blog we are happy to be able to share with the blogosphere the recent wisdom of two ‘Judge Coroners’ who have drawn up route maps to determining complicated procedural issues arising in their inquests.

None of what follows is formal guidance of course, but, practical tips from others’ experience are always useful, and coroners and inquest advocates might find these notes provide a helpful starting point when dealing with such matters, particularly when they have not, as yet, been addressed in the official ‘Chief Coroner’s Guidance’.[1]

R v Lawrence [2019] Wimbledon Magistrates Court

The unprecedented tale of “Dr.” Duncan Lawrence and his withholding of information from a coroner about his involvement in the death of the teenager Sophie Bennett has already gripped the headlines. This highly unusual criminal prosecution of a healthcare staff member who failed to give evidence at an inquest into the death of one of his patients is thought to be the first of its kind under the Coroners and Justice Act 2009 [1]. The saga has now taken a further extraordinary turn.

Despite having pleaded “100% guilty” on 16 August 2019, on subsequently attending court for sentencing Lawrence sought and was given an adjournment so that he may consider resiling from his earlier guilty plea.

The question that arises is whether, having already been fined £650 in May 2019 by the Assistant Coroner for his non-attendance at the inquest (pursuant to Schedule 6 part 6 CJA 2009), Lawrence is being put in double jeopardy by the additional criminal prosecution of him under Schedule 6 part 7 of the Act.