CHIEF CORONER’S GUIDANCE No. 37. 28 April 2020 here

The Chief Coroner has today released his further guidance to coroners during the COVID-19 pandemic.  The Chief Coroner sets out when a report to a coroner must be made and when an inquest will and will not be required into a death from what is a naturally occurring disease.  

He also puts a shot across the bows of anyone who thinks that these future inquests will be the right forum for examining high level decisions about the supply and provision of PPE to our front line health care workers and care staff: 

“An inquest is not the right forum for addressing concerns about high-level government or public policy”.   

The key points of the Chief's Guidance are set out below:

R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin) (judgment here) 7 April 2020.

The High Court has emphatically supported a Coroner’s decision not to record admitted, non-causative failings in an Article 2 inquest conclusion. The court’s observations about the proper content of a Record of Inquest (ROI) will be thought-provoking for all Coroners and practitioners particularly as they (i) imply judgmental conclusions on the ROI may be inappropriate (ii) narrow the import of the Tainton decision to jury cases and (iii) elevate the Coroner’s findings of fact and pre-conclusion reasoning to a level that may have significant repercussions for how Coroners close their proceedings in future.

The steep increase in the number of deaths occurring outside hospital during the Covid-19 pandemic brings a concomitant rise in the number of deaths requiring verification in the community.

Attending those who have died in the community clearly puts health care workers at increased risk of Covid-19 infection themselves.  In response the NHS has put out guidance (here) suggesting that GPs or another suitably qualified health care professional might now verify death remotely by video, or even by telephone, if family members are happy to support that verification process by, for example, reporting down the phone the absence of movement of the chest wall.

Unsurprisingly that guidance (also now promulgated by other organisations)[1]  has resulted in many calls to coroners and the ambulance service (particularly in London) from GPs and funeral directors who want clarification about the rules or advice about how to pronounce life extinct.

In response, London’s Senior Coroners, who have reservations about the NHS Guidance, have today produced a four-page document (here) setting out their agreed view of the death verification requirements, for the benefit of affected people in the London Area. They acknowledge that different approaches are being taken elsewhere. [2]

The Chief Coroner's Guidance on COVID-19

The Chief Coroner's Guidance on COVID-19 (No.34) here was issued on 26 March 2020 and reinforced on 27 March 2020 with further guidance (No.35) here. It is helpful to be read in conjunction with the Chief Coroner’s COVID-19 Note #3 here. It is intended to be the main piece of guidance for all coroners.

The message overall is that coroners have discretion and judgement to exercise in various respects, which they can be expected to exercise in a pragmatic way taking account of the effects of the pandemic.

However, it also makes clear that a Coroner’s Court should be open for “urgent and essential business only” and further, “absent a coroner a court is not a court”.

The reinforcement of this latter aspect tends to suggest approaches have been made to the Chief Coroner, following his Guidance no34, questioning the need for a coroner to be physically present in a Coroner's Court in order to conduct a hearing.

The response is a clear and unequivocal … yes.

The Bishop of St Albans, Dr Alan Smith has introduced a Bill aimed at using the coronial system to record where gambling addiction has contributed to suicide.

If the Coroners (Determination of Suicide) Bill [HL] (HL Bill 32) is passed, then where the inquest's conclusion is suicide, the coroner or jury will be required to record an opinion “as to any factors which were relevant to the death[1]

The one factor which the coroner or jury must consider under the proposals is whether the deceased had an addiction to gambling, no other specific factors are identified.[2]

Dr Smith is motivated in bringing forth the Bill having “met far too many families whose lives have been destroyed by the loss of a loved one, often young adults who have their entire lives ahead of them.” Indeed, a quick web search for “gambling” and “suicide” reveals pages of search results detailing a litany of tragic deaths, mostly of young men.

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

A coroner who chooses not to give reasons for a controversial decision may as well hand the aggrieved 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 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.