Wilson v HM Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin)
“Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability” -Burnett LJ
Mr Wilson, a consultant cardiothoracic surgeon, applied for judicial review of part of the coroner’s conclusions in relation to the deaths of three of his patients having undergone cardiac surgery at his hands.
At the concurrent inquests into the deaths allegations of data recording errors made against Mr Wilson by his former NHS Trust employer were explored. In brief, Mr Wilson was said to have massaged the mortality data. A statement by the Trust’s medical director (that was disclosed to all interested persons a few weeks before the inquests) alleged that Mr Wilson had significantly over-reported certain pre-operative conditions amongst his patients, which had the affect of raising the predicted death rate for his patients thereby making his actual mortality rate look artificially low in comparison. It was alleged that correct data reporting would have revealed a mortality rate that would have triggered precautionary action being taken to restrict his surgery practice.
The matter had already been referred to the GMC which was investigating the Trust’s complaint. Mr Wilson was aware of the GMC investigation but had sought to keep the issue out of the inquests and reserve it instead to the GMC.
The coroner’s interest in the data reporting issue was whether Mr Wilson would have remained the operating surgeon in respect of the relevant operations had the correct data been recorded.
The coroner concluded in respect of each death that there had been a historic failure to accurately record data which had resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in a the operations being carried out by a different operating surgeon. She reached that conclusion having relied upon the evidence of the Trust’s medical director but without examining the underlying data (the medical records) upon which the Trust’s analysis was based.
Mr Wilson challenged this aspect of the coroner’s conclusion on three grounds: that he had been treated unfairly in not being given a proper opportunity to deal with the evidence of the Trust’s medical director which had resulted in serious adverse findings against him; that the coroner had failed in her duty of investigation by not seeking to examine the raw data on which the medical director’s conclusions had been based and that her conclusion in this respect was irrational.
The challenge failed. The Administrative Court held that the inquisitorial process was not comparable to a criminal trial or civil proceedings. Accordingly there was a degree of procedural flexibility in the taking of evidence at inquest. The surgeon had not been treated unfairly. The coroner’s decision to explore whether an earlier alert would have been triggered without recourse to the underlying data was taken in a context where the surgeon was already aware of the issue and could have engaged with it. He already knew of the Trust’s allegation through the GMC proceedings and was not taken by surprise when the matter emerged in the inquest; he had chosen not to avail himself of the available mechanisms which would have enabled additional material before the GMC to be deployed on his behalf; he had failed to explain his reservations about the Trust’s analysis despite having the opportunity to do so; there were stark inconsistencies in the data which Mr Wilson could have sought to explain without needing the patients’ medical records: for example how it was that of the 78 patients labeled as having pulmonary hypertension 61 of them were entered on the database as having exactly the same morbidity score. The coroner had taken care in her conclusion not to identify the surgeon as the person who had recorded the inaccurate data. On the evidence before her, the coroner had been entitled to come to the conclusion she did, which was not irrational.
Commentary
As this case aptly demonstrates fairness is flexible concept to be shaped and molded by the proceedings in which you are operating. Coroners are given a degree of procedural flexibility in taking evidence at inquest the underpinning rational being the inquisitorial nature of the proceedings that is quite distinct from accusatorial processes such as criminal trials or regulatory proceedings.
That is not to say the duty to be fair bypasses the inquest, natural justice still applies. But the rules of natural justice are context specific and recognise that at inquest there is no case to be put against any individual or organisation in the adversarial sense. At inquest a witness may need to be given the opportunity to answer damaging factual or opinion evidence given by others but in the context that they are not answering ‘a case’ in the adversarial sense.
The New Zealand case of Carroll, Woodhouse and Woodhouse v Coroners Court at Auckland and New Zealand Police [2013] Inquest Law Reports 52 had this to say about fairness at inquest:
“In the coronial context, fairness requires that persons to be put on notice if their conduct is likely to be called into question during the inquest, so that they may have time to prepare for the inquest hearing and arrange legal representation if they so choose”.
This echoes the court’s approach in the case of Wilson which appeared strongly influenced by Mr Wilson’s advance knowledge of the Trust’s allegations and his tactical response to them at inquest. Individuals and organisations who fail to respond to criticism at inquest are unlikely to find sympathy when later making complaint about any resultant adverse conclusions if they were or should have been aware of the criticism to be made in advance, were given opportunity to respond and chose not to do so.