R (Lewis) v Senior Coroner for North West Kent [2020] EWHC, 12.2.2020
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.
The background
The Claimant’s sister, who suffered with paranoid schizophrenia, had died in a forensic psychiatric secure unit. She had undergone bariatric surgery in 2010. Since 2016 there had been serious concerns about her physical decline. In February 2017 she had been admitted to an external hospital but then returned to the psychiatric unit. On 14 July 2017 she was found partially conscious, undernourished, with poor oral hygiene and suffering with bed sores. Despite hospital treatment she died a few days later. A post-mortem gave her cause of death as malabsorption due to the bariatric surgery.
At the inquest a doctor gave evidence that she had been fading before their eyes and questioned the aftercare she received following her return to the psychiatric unit. Staff from the psychiatric unit reported that the deceased had not cooperated with treatment and that there were practical difficulties with feeding as she had malabsorption.
The bereaved family criticised the secure unit’s failure to follow its own policy on hydration and nutrition, its failure to keep adequate records of the deceased’s weight loss and symptom decline, and its failure to seek timely advice from a dietitian. The family understandably raised with the senior coroner the conclusion of neglect.
For those not familiar with neglect in the coronial context, ‘neglect’ is a term of art, not to be applied in the tortious sense. Neglect means “a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose position is such as to show that he obviously needs it may amount to neglect.”[1]
An absence of reasons
However, at this inquest’s conclusion, the issue of neglect was not left to the jury. Indeed, the senior coroner proceeded with his summing up without giving any ruling at all on his conclusions, such that the claimant only became aware of the coroner’s decision not to leave neglect to the jury when it was not mentioned. When the claimant queried this, the coroner said that the omission was deliberate. However, beyond stating that he had determined that the issue of neglect was not appropriate to leave to the jury (briefly referring to Galbraith and Jamieson), the senior coroner gave no reasons for his decision.
The jury concluded that malnutrition was the cause of death and the deceased had not received proper nourishment and nutrition at the unit. The senior coroner raised concerns in his Regulation 28 report as to the failure of consultation between the psychiatrist and hospital doctors and inadequate care given at the unit.
The Divisional Court’s disapproval
The Divisional Court (which included the Chief Coroner) clearly thought this was a case where the possibility of neglect was plain to all. The background was “somewhat disconcerting” said Lord Justice Davis: the deceased suffered significant weight loss before she died, her medical records had not been properly maintained or updated and on the face of it the policy on nutrition and hydration had not been followed. Indeed, given the circumstances revealed in the evidence, the court could not see how neglect was not properly available, or how it would not be safe to leave that issue, to the jury.
Using tactful judicial understatement the court said that it was “unfortunate” that the senior coroner had not given any reasons for declining to leave the issue of neglect to the jury. The “better practice” would have been for the coroner to indicate his intentions to the bereaved rather than leaving them to discover his decision as he summed up. The senior coroner’s actions had caused the instant proceedings and the family had had no real reasons for the coroner’s conclusion.
A finding of neglect was properly open to the jury on the evidence, withdrawing that issue from the jury was not reasonably open to the senior coroner and therefore the inquest was flawed. Accordingly, the Court quashed the jury’s conclusion and ordered a fresh inquest. The court also suggested that “it would be better if such an inquest were conducted before a different coroner.”
Commentary: The importance of giving reasons
As this case emphasises, the importance and value of the judge, coroner or tribunal giving reasons for their decision cannot be overstated. The practice of reason giving is not just to inform the parties but, (as Sedley J, as he then was, said in Simpson [2]) is also a helpful intellectual exercise for any judge which “will sometimes produce an opposite conclusion to that which was initially in the decision‐maker’s mind before the rigour of formulating acceptable reasons was applied”.
Indeed all who sit judicially should perhaps heed the wise words of Baroness Hale:[3]
“It takes courage and intellectual honesty to admit one’s mistakes…The best safeguard against having to do so is a fully and properly reasoned judgment in the first place.”
Footnotes
[1] R. v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson [1995] Q.B. 1
[2] R v Solihull MBC ex parte Simpson (1993) 26 HLR 370
[3] Re L and B (Children) [2013] UKSC 8.