Thompson v HM Assistant Coroner for Durham [2015] EWHC 1781 (Admin)

Kristian Thompson was 19 years old when he died.   He was a detained patient in a hospital secure unit under s.3 Mental Health Act. On the day of his death he had suffered an episode of incontinence and went to shower. He was found in the shower, collapsed on the floor with the shower running. He did not recover.

At the inquest in November 2012 the assistant coroner returned an open verdict, recording the medical cause of death as "unascertained". The pathologist and consultant neuro-pathologist involved in the post-mortem and the consultant physician who had been involved in Kristian’s treatment post-collapse considered two possible causes of death (sudden and unexpected death in epilepsy (‘SUDEP’) and sudden adult death syndrome (‘SADS’).  In the absence of an ante-mortem diagnosis of epilepsy the doctors were unable to come to any probable conclusion.  However, the pathologist stated that he would alter his opinion on the cause of death if an expert clinician could diagnose epilepsy at any time.

There had been insufficiency of inquiry such that it was necessary and desirable in the interests of justice to hold a fresh inquest

Mr Thompson’s brother challenged the inquest, under s.13 Coroners Act 1988, on three grounds:  That it should have been conducted in a way that complied with the state’s Art 2 investigatory duties, that a jury should have been called and that there had been "insufficiency of inquiry" in that the coroner had failed to:

(a) obtain a comprehensive inspection and review of Kristian's medical history (particularly the records since 2010 when he had suffered a head injury) to identify any indications consistent with epilepsy, such as previous seizures; and

(b) obtain and scrutinise expert evidence on two features of his  recent history which could be related to epilepsy  (recurrent nocturnal enuresis and recent change in medication dosage).

Kristian had been administered sodium valproate and clonazepam and the applicant questioned whether this could have masked or prevented obvious seizure activity until the dosage was reduced two months or so before the death and at a time shortly before incontinence at night had commenced.

It was held by the Divisional Court (Bean LJ and the Chief Coroner) that there had been insufficiency of inquiry such that it was necessary and desirable in the interests of justice, under section 13(1) of the Coroners Act 1998 that another inquest should be held.

The court noted that it could not be said what the outcome of the fresh inquest would be, or whether the medical cause of death would actually be ascertained, but found that the medical issues were sufficiently important that they should be explored afresh with appropriate witnesses.

Having made this decision on "insufficiency of inquiry" the court held that it did not need to rule on the additional allegations that the coroner failed to hold an Article 2 compliant inquest and should have empanelled a jury. These matters were to be left to the Senior Coroner hearing the fresh inquest to determine.

Commentary

That this is an extremely brief two-page judgment perhaps shows how uncontroversial an application this was. 

A coroner’s primary duty is to seek to ascertain the cause of death, hence before finding the cause ‘unascertainable’ rigorous exploration of the available evidence will always be required. Given that the medical evidence made it clear that the key to establishing if this was SUDEP was whether or not an ante-mortem diagnosis of epilepsy could be made, then the failure to take what might appear to be the very obvious step of asking a suitably qualified expert to scrutinise the medical records and explore the past history was clearly “insufficient”.

The chronology of this matter again brings into question whether there should be a simpler mechanism to overturn an inquest where a s.13 application is either made by the Senior Coroner or is unopposed by the coroner being challenged.   In this case following an inquest in 2012 the brother was required to make an application to the Attorney General for a fiat to get satisfaction. The fiat was given in September 2014 yet it took another 8 months until the unopposed s.13 application could be heard by two judges.       

Whilst the delay is unlikely to impact upon the quality of the available evidence in this particular case (the key evidential material being the contemporaneous medical records), in cases where the key evidence relies upon witnesses’ fading memories then persisting with a s.13 system that has built into it several months of delay in a wholly uncontroversial case may itself not be in the interests of justice. Where an inquest is challenged by way of judicial review application both the permission stage and the substantive hearing can be rolled up into one if justice so requires. However, there is no provision for such expedition under s.13. Law reform that does away with the need for the separate ‘permission stage’ of obtaining a fiat of the Attorney General when either a Senior Coroner applies for a new inquest or the coroner concerned concedes that a new inquest is required under s.13 would be most welcome.