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.

R (Paul Worthington) v Senior Coroner for Cumbria [2018] EWHC 3386 (Admin), 11 December 2018. Judgment here

Many will recall the much publicised judicial review brought by the Adath Yisroel Burial Society, [1] which led to the Senior Coroner for Inner North London’s “cab rank” burial policy being quashed. When it came to costs, the Court held that the Coroner had “crossed the line” from merely seeking to assist the Court on aspects of law and procedure into arguing the correctness of the decision under challenge. At that point she was no longer protected by the general rule that coroners who remain neutral in judicial review challenges to their decisions should not be held liable for the applicant’s costs.[2] Partial costs were awarded against her.   

Even ‘neutrality’ in the face of an inevitably successful application will not necessarily mean costs will be avoided if the Coroner behaves unreasonably. In Hopkins  the Swansea Coroner unreasonably refused to sign a consent form when the bereaved family’s s.13 application was clearly bound to be successful. The Coroner was ordered to pay all the applicant’s costs from service of the claim.[3]

In another much discussed case this year of Maughan [4] (concerning the lawfulness of the Coroner’s directions on the standard of proof for suicide) the Coroner advanced reasons why the guidance on which his directions had been based was “arguably correct”, yet was said to have maintained a “neutral stance” – perhaps hoping to avoid the potential adverse cost consequences of losing the claim (although the outcome was a score draw and the judgment does not suggest that any application for costs was made either way).

The defendant Coroner in the recent Poppi Worthington case, [5]  through his counsel, sought to maintain that he too was taking a “neutral stance”. The three judge Divisional Court (which included the Chief Coroner) disagreed, observing that the Coroner had, in practice, sought to persuade the Court that the claim should be refused.  

“Both parties clearly sought to persuade us, to the best of their considerable ability, that their submissions should be preferred.”

The Court noted that, despite the Coroner’s asserted ‘neutrality’, had the claim been successful, the Claimant would have been entitled to his costs against the Coroner.

R (Worthington) v Senior Coroner for Cumbria [2018] EWHC 3386 (Admin) 11 December 2018 Judgment here

When public funding for deserving families at inquests is so hard to come by it is mystifying how the Legal Aid Agency can make a decision to spend their limited funds on an apparently unmeritorious challenge to inquest conclusions by one who was involved, in the most appalling way, in the circumstances leading to the death of the deceased. 

In the Worthington case, the acknowledged motivation of the abusive father in bringing his challenge was to try to hide his actions in the lead up to his daughter’s death from those who might look at her Record of Inquest (ROI) in the future, yet his claim was brought with the benefit of public funding.

Poppi's death

The account of how Poppi Worthington met her death is an extremely sad and disturbing story.   Poppi was 13 months old when she died at her home.  When Mr (now Lord) Justice Peter Jackson considered this case in the family court proceedings in 2014 and 2016 [1] he concluded that in the hours before Poppi’s death, the Claimant, her father, had perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object.  Poppi died shortly afterwards from a cause which the Judge was unable to ascertain.  

The fresh inquest held in 2017 [2], revisited the issue of whether Paul Worthington had sexually assaulted Poppi prior to her death and, if so, whether that had caused or contributed to her death.  In a detailed document of over 100 pages the Coroner set out his reasoned factual findings on the extensive expert and factual evidence.  He concluded that Paul Worthington had anally penetrated Poppi in his bedroom and then left Poppi to sleep beside him in such a position that her breathing was compromised, either due to the position of the bedclothes, her position within the bed, or overlaying, or a combination of all three.   The anal penetration had not caused her death. Rather, the Coroner concluded that Poppi had died from asphyxia resulting from obstruction of her airways whilst she was asleep in her father’s bed.

The Judicial Review claim

Paul Worthington specifically accepted that the Coroner was required to make a finding of fact as to whether a penetrative assault had occurred. He did not challenge that finding.  Indeed he could hardly have done so given that a High Court judge had twice previously come to a similar conclusion about his despicable abuse of his baby daughter. 

Mr Worthington’s complaint was that the Coroner had recorded in box 3 of the Record of Inquest [3] that:

“…at some time after 2.30am, [Poppi] was taken from her cot to a double bed where she was anally penetrated. She subsequently went to sleep in the double bed with an adult sleeping close to her. .. her ability to breathe was compromised by her unsafe sleeping environment…”

Mr Worthington judicially reviewed the Coroner's conclusion.  His case was that the words above in italics trespassed into the wider circumstances of the death in a way that was not permitted in a non-Article 2 inquest.  As the anal penetration had not caused Poppi’s death, he argued it could not be relevant to “how” she died, and so should not have appeared on the Record of  Inquest.

The Senior Coroner for Inner West London, Dr Fiona Wilcox, has made a report to prevent future deaths[1] (a “PFD report”) in connection with her investigation into deaths following the Grenfell Tower fire. Her report (here), issued on 19 September 2018, is a good illustration of the potential breadth of a coroner’s powers: the report focuses not on fire safety but on future health screening and support for those survivors and others who now face the physical and psychological consequences of their involvement in this tragedy. 

The Senior Coroner’s concern is that some survivors and responders at the scene may have been exposed to significant inhalation of smoke and dust containing toxic substances, and so are left at risk of developing health conditions. Furthermore, many of those affected by the incident have suffered emotional trauma and harm to their mental health and need appropriate mental health support. Her report, directed at NHS England, is aimed at minimising the risk of affected persons slipping through the net and being lost from appropriate supportive services.

However, as the earlier coronial report in 2013, following the worryingly similar events in the Lakanal House Fire chillingly reminds us (see earlier commentary here), these coronial reports have little teeth.  

There is no coronial power in relation to the content, adequacy or implementation of the response to a PFD

Despite the breadth of the power to make a PFD report, they are only reports, there is no mechanism for implementing or enforcing the recommendations implicit in such PFD reports, and no systemic approach to maximise their effectiveness nationwide.

In the matter of Hugh Jordan [2018] NICA 34 (15 October 2018) decision here

As the ongoing Maughan[1] litigation focuses minds on the standard of proof applicable for a suicide finding at an inquest, it is perhaps surprising how little thought is given to the issue of the burden of proof at an inquest. However, in the latest episode in the long running saga of the inquest into the death of Pearse Jordan, the Northern Ireland Court of Appeal has added some clarity to the position by recognising that there can, in some situations, be a burden of proof even in an inquisitorial setting. Nevertheless, determining factual issues in inquests will, sometimes, not be possible.

Burden? Standard?

First, a quick reminder of your second day of evidence lectures at law school:

  • Standard of proof: the level of evidential certainty required to establish a fact.
  • Burden of proof: the obligation on a party to adduce evidence to establish a fact. 

Of course I hear you say, even a law school fresher would know there is no burden of proof within inquisitorial proceedings! Surely the clue is in the name? An ‘inquiry’ asks questions and establishes facts, but it does not require anyone to prove or disprove anything. An inquiry has no parties; no one has a formal case to put or a case to meet.

But just as the Maughan case (Blog here) has reminded us all that assumptions are often the errors we don't realise we are making, the NI Court of Appeal now tells us we would be wrong: when Art 2 is engaged there can be a burden of proof in an inquest –  one to be discharged by the state.