Cause of death, survivability and statistics: the importance of understanding the difference.

Written by: Bridget Dolan KC
Published: 17 March 2019

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

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.

“Delawyering” Inquests – Do as I say, not as I do

Written by: Katie Gollop KC
Published: 16 March 2019

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

This report was published in February 2019. 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!

Must article 2 inquiries seek to identify those responsible for the death?

Written by: Bridget Dolan KC, Elizabeth Fox
Published: 13 March 2019

Re: Finucane’s Application for Judicial Review [2019] UKSC 7, [2019] 3 All ER 191

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.

The Duty of Candour shows its teeth

Written by: Susanna Rickard
Published: 29 January 2019

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.

It is “probably suicide” in Northern Ireland too

Written by: Bridget Dolan KC
Published: 23 January 2019

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

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.”