Nguyen v Assistant Coroner Inner West London [2021] EWHC 3354 (Admin), 10.12.2021
Concerns raised about the adversarial nature of some inquest proceedings and the standards of advocacy displayed in Coroners’ Courts have led the Law Society and Bar Standards Board to recently issue new guidelines for all legal professionals practising in Coroners’ Courts. Those guidelines published in September 2021 (here) spell out the competences to be expected of lawyers by the regulators and the public.
The Chief Coroner has the expectation that ‘coroners will be vigilant in ensuring those before them are meeting the expected standards’.[1] Coroners will be encouraged to address practice that falls short of these competences either during the hearing itself or through raising their concerns with the relevant regulator.
It was not, however, the questioning style of the advocates that was called to account in this most recent application for a fresh inquest under s.13 Coroners Act. Rather, the allegation was that the Assistant Coroner herself had overstepped the mark by raising unduly pressurising questions that at times amounted to speeches during her own assertive questioning of a key witness. Her approach, the Claimant argued, had revealed an inappropriate ‘pro-doctor’ bias.[2]
In the view of the Divisional Court some of the questions raised by the Assistant Coroner were indeed “too assertive, [they] amounted to the setting out of propositions rather than questions, and/or involved several questions and not one, making it difficult for the witness to answer”. Furthermore, some of the coroner’s remarks had been “unwise” and “close to being intemperate”.
Although the Coroner’s approach did not justify a fresh inquest on the grounds of apparent bias alone, the Coroner’s manner of questioning of a witness was, however, “close to the borderline between robustness and unacceptability”. As such it was one of the factors to be taken into account (alongside the emergence of fresh expert evidence that might call her conclusions into question) when the Divisional Court decided in the Claimant’s favour on the much broader question of whether, a new inquest should now be ordered as being desirable in the interests of justice.
Background
The Claimant’s son, Hayden, had died when only a few days old from what was initially thought by his treating clinicians to be sepsis leading to shock and cardiac arrest. The Trust’s Serious Untoward Incident (‘SUI’) Report[3] was very critical of the Trust’s clinicians’ care of Hayden and identified a number of failings by Trust staff. These related broadly to failures in monitoring and assessing Hayden’s condition, failing to appreciate how ill Hayden was and failing to seek more senior or more expert advice when making decisions about his care.
The Trust’s SUI process came under great scrutiny in the inquest, particularly given that the SUI Report had been signed off two days after the post-mortem (‘PM’) report became available but without the SUI author having seen and considered the PM findings.
The pathologist had concluded that the cause of death was lymphocytic myocarditis and disseminated enterovirus infection. This is a rare condition with a poor prognosis, but the SUI author had consciously chosen not to look at the PM Report when coming to her pejorative conclusions regarding the staff’s actions. Moreover, the key clinicians should have, but were not given the opportunity to comment on the draft of the SUI Report before it was promulgated. Those clinicians all made detailed written comments criticising various aspects of the SUI Report after its publication.
By the time of Hayden’s inquest a Consultant Paediatric Cardiologist had been engaged as an expert by the Coroner. He noted that, as he was not a general paediatrician, it was not appropriate for him to comment in detail on the content of the SUI report, but he had “some sympathy for the responses from the treating doctors.” As the Divisional Court later found, “he was not the right expert to instruct on standard of care as opposed to causation issues”. The Coroner’s expert nevertheless pointed out that in his view, in the light of the cause of death in the PM report, some of the criticisms in the SUI report were invalidated and neither the alleged failures of care nor any delay in referral for intensive care support had caused or significantly contributed to Hayden’s death.
A causation expert subsequently commissioned for the family disagreed saying that whatever his cause of death, Hayden required earlier referral to intensive care and proper intensive care support including ventilation, inotrope support and fluid balance monitoring.[4]
The Coroner’s questioning style
In testing the oral evidence the Assistant Coroner asked a mixture of non-leading and leading questions of the clinical witnesses which, said the Court, without more, is unobjectionable. The Court made the important observation that it was “obvious that a preponderance of leading questions would not constitute the proper discharge of a Coroner’s duty to undertake sufficient inquiry”, but that is not what had happened. As the Court noted, the leading questions asked by the Coroner were summaries of the evidence that had already been given, and so, as a general observation, that would be unobjectionable.
A preponderance of leading questions would not constitute the proper discharge of a Coroner’s duty to undertake sufficient inquiry
However, as the Court also recorded, some of the Coroner’s questioning of the SUI author was less acceptable. The phrasing of some questions by the Assistant Coroner was more in the style of cross examination, which came close to suggesting that she was, trying to get the witnesses to agree with the proposition that was being put to them. The questioning was also rather convoluted at times, propositions being put to the witness within long paragraphs that contained more than one question. The following is one example of what was said by the Assistant Coroner to the SUI author:
“Have you taken any consideration of the fact that all the clinicians and to some extent the nursing staff have said that this didn’t look like a baby with a lactate of 4? That this baby handled well, that clinically, this baby did not look as if it was in septic shock? Which indeed it wasn’t, we know. So, what about the fact that the clinician with the child on the day, having seen the child, has some flexibility or some decision-making as to whether it would be appropriate to fluid resuscitate a child who looks as well as they did, despite the fact … yes, the boxes had been ticked and it should day, the result ticked the box, how do you factor that in?”
The transcript did not reveal the Coroner’s tone, but Mr Justice Jay considered that some of this questioning “came close to the borderline between robustness and unacceptability” and that some of the coroners remarks were “unwise” and “close to being intemperate”.
The Court did not, however, go so far as to hold that this showed the Assistant Coroner to have demonstrated apparent bias in her conduct of the proceedings. She had gone close to the line of apparent bias but, it seems, not crossed it.
That a coroner might have already formed firm provisional views about a case did not of itself amount to bias and, although this case was “quite close to the line”, the Coroner’s approach did not justify a fresh inquest on the grounds of apparent bias alone.
Old and fresh expert evidence
A further ground of challenge in the case was that (i) the Coroner had not heard from an expert engaged by the family whose report had been available before the inquest and (ii) new expert evidence was now available that over 50% of children with neonatal enterovirus myocarditis would survive with appropriate intensive care.
The court was clear that the first of these points was insufficient to justify a new inquest. A coroner has a wide discretion whether or not to call a particular witness which is only reviewable on Wednesbury principles. Although Jay J did comment that the family’s expert was “a potentially important witness and that this inquest would have proceeded in a fairer and more balanced fashion had he been called,” the judges were not prepared to elevate this consideration to the level of Wednesbury error.
What was more persuasive, however, was the new expert evidence, that earlier invasive procedures would on the balance of probabilities have led to Hayden’s survival.
There was no requirement under s.13 that the fresh evidence could not with reasonable diligence have been obtained at the first trial or hearing. What mattered was that it would have been admissible had it been available, was credible and was relevant to an issue of significance in the inquisition. Although it was not necessary to show a new conclusion might be reached, the present case the new evidence it might have made a material difference to the conclusion recorded. If accepted by a Coroner, it might lead not merely to a different factual narrative but to a finding of neglect.
The broad test of under s.13 Coroners Act 1988
The court emphasised that s.13 required the Claimant to establish that it was “necessary or desirable in the interests of justice” that another investigation should be held. This was an extremely broad test, and required the Court to take a global and holistic view of whether the first Inquest should be allowed to stand in the light of the proven irregularity or new evidence. The Assistant Coroner had heard from a significant number of witnesses over three days and her investigation was neither superficial nor perfunctory. However several factors gave weight to the desirability of a fresh inquest:
- the forensic weaknesses in the SUI report was significantly weakened by fresh evidence that with earlier invasive procedures Hayden would probably have survived;
- that some of the coroner’s questioning of the SUI author came close to the borderline between robustness and unacceptability;
- the Trust had now admitted liability in civil proceedings which called into question the Assistant Coroner’s narrative conclusion;
- the Coroner’s expert should have seen the report from the family’s expert that the Coroner had declined to admit;
- it was desirable that the Coroner receive further evidence from apparently independent sources on the issues of standard of care and causation and balance these against the opinion of her original expert.
Commentary
One might wonder whether it was with some irony that this case was allocated to be heard by Mr Justice Jay, who might still be smarting after the Court of Appeal and the Supreme Court had found last year (in Serafin v Malkiewicz [2020] UKSC 23) that he had himself dished out unfair judicial treatment to a claimant who he had “harassed and intimidated” with “a barrage of hostility” using “immoderate, ill-tempered” language.[5]
A full and fearless inquest will of course often require a coroner to probe the evidence and not simply accept a witness’ account on face value. Clearly in this case the SUI author had exposed herself forensically by not waiting for the post-mortem report and not insisting that the treating clinicians be given the opportunity to comment upon the draft before the report was finalised. Nevertheless impartiality of the tribunal remains a fundamental requirement of justice, including in an inquisitorial jurisdiction.
A skilled coroner should be able to test and where necessary expose flaws in witnesses’ evidence without needing to pressurise or badger a witness. Indeed Coroners should, like all members of the judiciary, always seek to be courteous, patient, tolerant and should respect the dignity of all who use their courts.[6] Great care needs to be taken that judicial independence is not lost by coronial questioning that descends into cross-examination, putting contrary propositions to witness and asking them to agree, in order to establish a particular case.
The High Court has held in earlier cases (eg. Dorman v Clinton Devon Farms Partnership [7]) that where a judge comments unjustifiably and uses intemperate language in relation to party’s case or conduct this may be sufficient to meet the Porter [8] test, that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Judge was biased.
Although the Coroner’s approach to the questioning of witnesses in this case fell (just) short of appearing to be biased, it was still a relevant factor in the Court’s determination that the interests of justice required a fresh inquest.
Perhaps the best advice for any coroner hoping to avoid crossing the line between appropriate probing on the one hand and unacceptable assertive advocacy seeking to establish a particular position on the other, is not to go too close to that line in the first place.
Footnotes
[1] See BSB press release here
[2] in the sense that the clinical judgments of the treating clinicians should not be called into question.
[3] Authored by a Consultant who was the Paediatric Service Director at the Trust
[4] The coroner had declined to admit an earlier expert report obtained by the family before the inquest that did not address causation.
[5] https://www.lawgazette.co.uk/law/sc-sends-bullying-judge-libel-case-back-for-retrial/5104475.article
[6] Guide to Judicial Conduct at page 20
[8] Porter v Magill [2002] 2 AC 357 at [103]