Ministry of Justice/ONS (9 May 2019 here)

One death is a tragedy; half a million – well, 541,627 to be precise – is a statistic. 

The Coroners Statistics Annual Bulletin 2018 (which covers the year to end of 2018) has just been released. It is, as always, an invaluable guide to the workload of coroners around the country and possible trends for the future.

The overall bad news is that more of us are dying. Total deaths reported to the ONS have risen year on year, from 484,367 in 2011.  The projected figure of 541,627 deaths in 2018 continues that trend and is set to be the highest total since 1999.

The coroners statistics of course only address those deaths a coroner needs to be told about (those thought to be violent, unnatural or unexplained or of someone in state detention): the good news is that there are less of those.

Of the several things to note in the latest figures the headline is that the removal of the requirement to report deaths of those subject to a Deprivation of Liberty Safeguard (‘DOLS’) authorisation has changed the statistical landscape.

The Professional Standards Authority for Health and Social Care v (1) NMC  (2) Anne Ndlovu   9 May 2019 EWHC 1181 (Admin)  judgment here

It is rare that healthcare staff are seriously dishonest in their evidence to an inquest, although sadly such conduct does at times happen.  Even when criminal prosecutions  are not subsequently pursued, this recent appeal is a strong reminder of the seriousness with which such conduct should be taken and the professional consequences for those who seek to dishonestly hide their errors.

 “Honesty, integrity and trustworthiness are ‘the bedrock’ of any nurse’s professional practice”.

As this case makes clear, courts will not look lightly upon dishonesty to a Coroner: it runs the risk of prejudicing an inquest which is flatly against the public interest.

R (Maughan) v Senior Coroner for Oxfordshire, the Chief Coroner as intervenor (and INQUEST as an interested party) [2019] EWCA Civ 809, 10 May 2019,  judgment here

After the seismic shift that followed Maughan in the Divisional Court it was remarkable that no one seemed to be predicting any aftershocks when the Court of Appeal considered the case.  After all, what had always seemed so obvious one way, was now just so obvious the other way once you stopped and thought about it.  Indeed, why on earth did any of us ever think that something that has not been a crime for more than half a century should require proof to a criminal standard within a civil inquisitorial jurisdiction?  

All the sensible money was on the Court of Appeal upholding the first instance decision.   They have not disappointed. Dismissing the appeal the CoA have now concluded that:

  • the civil standard of proof is to be applied to factual findings and determinations in inquests generally, including to findings of suicide (whether expressed in narrative or short-form conclusions);
  • the criminal standard of proof (exceptionally) applies to the unlawful killing conclusion. 

AB v Assistant Coroner for Inner South London   CO/663/2019, 1 May 2019 decision here.

The Extinction Rebellion protests are a forceful reminder, if any were needed, of how our planet is rapidly becoming more polluted with potentially worrying consequences for all who live on it.  Clean air is one of the most basic requirements of a healthy environment for us all to live, work, and bring up families.  As the government already acknowledges “Poor quality air is the largest environmental risk to public health in the UK” with exposure to nitrogen dioxide having an effect on mortality “equivalent to 23,500 deaths” every year.[1] 

When a nine year old girl dies from a severe asthma attack that may be linked to air pollution it is clearly a cause for concern and investigation.   

Ella Kissi-Debrah who lived alongside the busy London South Circular road died in February 2013 after suffering a severe asthma attack.  Ella had made 27 visits to hospital for asthma attacks since 2010. The first inquest into her death, held in 2014, focussed on the medical cause of her death and the medical care given in the short period between the fatal attack and her death.  The Assistant Coroner concluded that Ella suffered an asthma attack followed by a seizure and died after unsuccessful resuscitation. 

However new medical evidence was subsequently obtained that pointed to the severe air pollution in the area where Ella lived as having contributed to her death.  A monitoring station a mile from Ella’s home had repeatedly logged unlawful levels of air pollution. A Professor of immuno-pharmacology, who was an expert in respiratory disease, provided a report which concluded that the unlawful levels of air pollution had contributed to the cause and severity of Ella’s fatal asthma.  Further evidence pointed to an arguable failure by the state to regulate and reduce the extreme pollution that was implicated in her death.

“There was a real prospect that without unlawful levels of air pollution Ella would not have died” 

R (Chidlow) v Senior Coroner for Blackpool and Flyde [2019] EWHC 581 (Admin) 12 March 2019 (judgment here)

Humans’ bodies being such complex organisms it is unsurprising that medical causation is often extremely complicated and that the law regarding the legal causation of medical injuries can be particularly convoluted.

Indivisible injuries, multifactorial causation, material contribution, loss of a chance etc. create a precarious legal minefield for clinical negligence lawyers to navigate before one even begins to wander into the less well marked territory of the coronial jurisdiction.

Here one must step even more carefully around the danger zone of semantics - wondering whether there really is any effective difference between the ‘causation threshold’ words of minimal or trivial or negligible, whilst remembering the ‘causation standard’ of probable is not what is possible, but not forgetting that a missed opportunity to make a difference may still matter and that Art 2 might anyway require the possible to be recorded regardless of proof.

But this week brings good news for all who must negotiate these coronial causation booby-traps. Mr Justice Pepperall has deployed the mine rollers ahead of you – so take off your personal protective equipment and put down the metal detector – if you want to protect yourself from triggering a legal casualty just take some time out to read and learn from the Divisional Court’s erudite exposition of two fundamental points regarding causation at inquests: 

  • Causation is more than a matter of medical statistics - even where survivors are a majority category.

Something more than being a potential figure in a statistic will be needed that suggests the deceased would probably have been in the category of survivors;[1]

  • There is an important difference between being able to identify what someone died from and being able to say whether, regardless of what precisely caused their death, their life could have been saved with earlier medical attention.

Unfortunately a failure to discern that essential difference led the Senior Coroner in the present case to err in law when he withdrew from the jury the question of whether an admitted delay in an ambulance attending a man contributed to his death.   The Coroner had wrongly concluded that, because there was no clear cause of death, it was not safe to allow the jury to consider the causal effect of the delay in him receiving treatment.

"Establishing a medical cause of death was not essential to being able to form an opinion as to the effect of delayed treatment."

Moreover, the medical expert’s evidence on survivability was not an opinion based solely on statistics. The expert’s view that the deceased would have lived with prompt treatment also relied upon clinical experience; accounts of the deceased’s condition when attended; reading of the other medical evidence (specifically the post-mortem findings and the lack of any underlying disease or infection in an apparently fit young man).   The jury were not bound to accept this expert’s opinion, but his view was not so obviously unreliable that it was not safe to leave the issue of causation to the jury.

What does the Government’s 'Final Report: Review of Legal Aid for Inquests' mean for Advocates?

This report was published in February 2019 (see the report here). The section entitled ‘Making sure inquests remain inquisitorial’ at paragraphs 184 – 202 is particularly worth reading.

The estimated cost of providing representation for families at inquests where the state is represented (a recommendation under review) is a further £30-£70 million.   The Government has decided not to provide that money. Therefore, the inequality of arms between families and state actors continues. (This is an issue on which many at Inquest Blog Towers have views - see here for our earlier post).

No biggie though because, with an alchemical ability that relegates Dr. John Dee’s wizardry[1] to key stage 1, the Government has eliminated misconceived family negativity and accentuated how inequality is not only positive for everyone but also good for the system! 

Re: Finucane’s Application for Judicial Review [2019] UKSC 7; [2019] 2 WLUK 382, judgment, 27 Feb 2019, here

In February 1989 Patrick Finucane, an Irish Catholic lawyer, was eating dinner with his wife and children when gunmen forced their way into his home and shot him 14 times. Thirty years later this murder remains one of the most notorious events of the Northern Ireland ‘Troubles’.

An inquest the following year examined only the immediate circumstances of the death.  Before long, however, it emerged that there was, as his widow suspected, collusion between the murderers and members of the security forces.  The British Government have acknowledged and formally apologised for that collusion. Despite a subsequent guilty plea to the murder by one loyalist paramilitary, none of the numerous investigations into the killing have identified the members of the security forces involved or the assistance provided. There has still been neither an Art 2 inquest nor any formal public inquiry into the state involvement.

The Supreme Court have now determined that, whilst the decision not to hold a public inquiry was lawful, in the circumstances of Mr Finucane’s death Art 2 does require that there is a further investigation conducted which has the means to identify the perpetrators. Whilst the precise form of that investigation will not be prescribed by the courts and remains a matter for the government, whatever form of investigation or inquiry is adopted must meet the Art 2 procedural obligations.

From the jaws of the Care Quality Commission this month comes the first ever fine issued for breach of the Duty of Candour.[1]  Bradford Teaching Hospitals NHS Foundation Trust have been given a fixed penalty notice for £1,250 for failing to apologise to a bereaved family within a ‘reasonable’ time.

A baby had been admitted to Bradford Royal Infirmary in July 2016. Delays in diagnosis and missed opportunities to admit him had been recorded as a notifiable safety incident, yet the family were not informed of this and did not receive any apology until October (writes the CQC).  

The CQC’s action does not relate to the actual care provided to the child, but rather to the fact that the NHS Trust was slow to inform the family that there had been delays and missed opportunities in his treatment.

Apparently the hospital identified and reported their breach to the CQC themselves, and have implemented an awareness-raising programme across their staff to avoid this happening again. Whilst in theory the CQC have powers of prosecution, in the circumstances, this relatively small fine seems more proportionate. 

In the matter of Steponaviciene’s Application [2018] NIQB 16.11.18 judgment here

As coroners, lawyers and the bereaved wait to find out how the Court of Appeal will decide the Maughan case this coming April, [1] a decision from across the Irish Sea has looked in detail at the English and Welsh Divisional Court’s decision in Maughan and found no flaws in its “careful and persuasive” reasoning. For the time being at least, the issue of whether the deceased died from suicide should be decided on the balance of probablities in Northern Ireland just as in the English and Welsh Coroners' courts.

In a detailed judgment McCloskey J has also laid some of the groundwork for anyone resisting the English appeal.[2] In considering the arguments in Steponaviciene’s Application the judge reviewed nine cases put before him that the court had not been referred to in Maughan at first instance.   Roundly dismissing the suggestion that any of these cases rendered the Maughan decision per incuriam, the judge lamented that one of the “unfortunate repercussions of the internet explosion was the routine inundation of electronically available judicial decisions belonging to multiple levels in the hierarchy of the legal system without proper regard to the doctrine of precedent.”    

Re: The inquest into the death of Helen Bailey [2018] EWHC 3443 (Admin) 12 December 2018 Judgment here

It is “elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered”. So stated the Lord Chief Justice when ordering the fresh Hillsborough Inquests.[1]

It might then be thought that a Senior Coroner overturning their own (or their predecessor’s) inquest on the grounds of significant fresh evidence pointing to the death being a homicide would be a simple process: after all the Coroner is hardly likely to have misjudged the importance of that new evidence recently revealed. Yet the cumbersome requirements under s.13 Coroners Act 1988 mean that a Senior Coroner who believes that justice requires a fresh inquest must still follow the time consuming two stage process of, first, applying to the Attorney General’s Office for permission to make an application[2] and once that permission is inevitably granted, follow a second and separate process of making an application to the High Court.