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 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.

Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors. [2018] EWCA Civ 2081 (judgment here)

On the evening of 21 November 1974 two successive explosions tore through two busy city centre pubs in the heart of Birmingham.  The bombings, thought to be perpetrated by the IRA, resulted in the largest UK mainland peacetime loss of life to terrorism in its time: 21 innocent people were killed and 220 more were injured.

The inquests were opened but adjourned pending a criminal investigation.  The following year, six men were convicted and sentenced to life imprisonment. The miscarriage of justice involving the West Midlands Police that led to the release of ‘the Birmingham Six’ by the Court of Appeal in 1991 is now notorious.  Despite the subsequent police investigations no further convictions have followed and the perpetrators of these atrocities remain unidentified and unpunished.

Who then was responsible for the deaths of the 21 victims? How did they come to die in these circumstances? Could their deaths have been prevented?  The answers as to what happened for over 44 years ago remain hidden in a metaphorical ‘chamber of secrets’.

The key question is what is the scope of the inquest? Although inquests must not become proxy criminal trials, is the identity of those involved in violent deaths properly within the scope of an inquest?

Whilst some of the obstacles beyond the trapdoor will be navigated in the forthcoming inquests, following the recent decision of the Court of Appeal it now seems that the door that might lead to the final secret, the naming of the evil-doers, is not to be unlocked.

R (Allman) v HM Senior Coroner for Liverpool and Wirral.  CO/3230/2018 decision here 25.9.18

The short and desperately tragic life of Alfie Evans, and his parents’ heart-rending fight to have him transferred to Rome for continuation of his life sustaining treatment, has recently been fully played out in the public arena.   

The public hearings in the High Court[1] and the four appearances in the Court of Appeal[2] were not only all open to the public but the details were widely reported throughout the print and digital media.  On two occasions the family sought permission to take the case to the Supreme Court[3] and the European Court of Justice[4] but on each occasion those applications were dismisssed.  Those hearings were on paper without any oral submissions but once again the determinations were made public.

The relevant clinical information and extracts of the various expert opinions relied upon by the Courts at each stage are set out in the judgments.  They each confirm the unanimous agreement between all of the medical experts involved – including specifically all of the experts instructed by the family – as to the catastrophic and untreatable, progressive, neurodegenerative condition from which Alfie suffered; there can be no question that Alfie’s death on 28 April 2018 was the result of a naturally occurring condition. 

Against that background it is difficult to understand what more about the facts of Alfie’s death might be learned by those who have since called for an inquest to be held. Unsurprisingly, a judicial review claim challenging the decision of the Liverpool Senior Coroner that an inquest was not required in law has now been considered “totally without merit” in the High Court.

(1) Diane Hopkins & (2) Frances Ryan v HM Coroner for Swansea and Neath Port Talbot [2018] EWHC 1604 (Admin) Judgment here.

This was a straightforward application of the High Court’s power under s13 Coroners Act 1988 to quash the determinations and findings made at an inquest and order a new one, in the light of new evidence.  But the facts make surprising reading and reveal important lessons for coroners.

Mrs Pokoyski was an 85 yr old care-home resident. After a series of strokes left her paralysed she required a puréed diet. Her family were concerned that she was often being inappropriately fed in a reclining position so causing her to choke. One day she was said by care staff to have suffered a ‘bad episode” of vomiting and aspirated vomit; she became ill, struggling to breathe; she was taken to hospital but died a few days later.

Following a post-mortem examination a consultant histopathologist, Dr Thomas, gave the cause of death as “aspiration pneumonia with locally advanced carcinoma of the lung”. However, at the inquest Dr Thomas changed his opinion. Having heard the factual witness evidence he said he now wasn't clear if choking had occurred and that the food material he saw in the lungs might have come from the stomach rather than from aspiration. Dr Thomas now gave a different cause of death - pneumonia caused by lung cancer - which the assistant coroner accepted as part of his conclusion.

However, the deceased’s daughters had legitimate concerns about how their mother had been fed and and so after the inquest obtained an independent expert pathologist’s opinion. Professor Soilleux gave a damning analysis of Dr Thomas’s evidence. Not only had the original cause of death been correct, but the deceased had died from the worst aspiration pneumonia this expert had ever seen under the microscope.