Davison v HM Senior Coroner for Hertfordshire  EWHC 2343 (Admin) 15 September 2022 (judgment here)
There is little new law in an inquest being quashed and a fresh inquest being ordered after new expert evidence has been obtained. What is particularly unusual in this case is that the independent expert evidence upon which the s.13 application was founded was not obtained by the Claimant, but was sought by Attorney General herself.
Megan Davison (‘Megan’) suffered with ‘diabulimia’, a media-coined term that refers to an eating disorder in a person with type 1 diabetes, where the person purposefully restricts insulin in order to lose weight. When Megan sadly took her own life an inquest held in 2018 concluded that her death was suicide; the Senior Coroner did not consider that he should make any prevention of future deaths (‘PFD’) report. Megan’s family have now been granted a fresh inquest after new expert evidence was obtained by Attorney General regarding diabulimia. That independent expert evidence, which criticised the treatment Megan had received, was the foundation for the Claimant’s successful s.13 application.
Also of interest in this judgment is the Divisional Court’s views on (i) whether a Coroner’s failure to comply with the strict requirements of r.23 is a material shortcoming that would of itself justify a fresh inquest, (ii) whether a new inquest might be justified just to obtain further PFD evidence and (iii) whether a neutral coroner should pay a successful claimant’s costs. One might also speculate whether the Court’s obiter comments about whether Article 2 ECHR is engaged following a death of a mental health patient in the community might foreshadow the decision soon to be handed down by the Court of Appeal in Morahan.
In 2016 Megan had been detained under the Mental Health Act (‘MHA’) having taken a potentially fatal overdose of insulin. She had been admitted to an in-patient eating disorder service. By the time of her death in 2017 Megan was under the care of the local community eating disorders service (CEDS) and although she expressed suicidal ideation, she was not considered to be detainable under the MHA. On the day of her death Megan had sent a text message to the CEDS psychological therapist who had treated her, asking the therapist to ensure that the emergency services, and not her parents, would find her body.
The first inquest
At Megan’s inquest the Coroner admitted part of a written statement by the CEDS psychologist and he also heard oral evidence from the police officer who found Megan’s body and from her community consultant psychiatrist (who was not a specialist in eating disorders or diabetes, and had not previously encountered diabulimia). The family did not know, and the Coroner did not tell them, of the right of an interested person under r.23 to object to the admission of written evidence.
On returning his conclusion of suicide the Coroner noted that Megan had suffered for many years from type 1 diabetes and an eating disorder with bulimic patterns, known as diabulimia. He commented that it was a relatively rare condition and explained that he would not make a PFD report as he had been provided with information suggesting that the National Clinical Director for the Mental Health was already involved in producing guidelines on eating disorders that included the management of people who had both diabetes and an eating disorder.
The fiat application and the fresh expert evidence
Two years later the family sought the fiat of HM Attorney General to enable them to apply to the High Court for a fresh inquest. The Senior Coroner did not support their application but remained neutral. As part of her consideration of the application the Attorney General decided to obtain a report from a Professor of Psychiatry and Medicine who is a leading expert in diabetes and diabulimia. That report made a number of criticisms of the care Megan had received. The Professor expressed the view that there would be value in a new inquest in increasing understanding of the nature and incidence of diabulimia, which could lead to more screening and assessment of patients and so reduce the number of deaths. Having considered the expert evidence that she had obtained, the Attorney General provided her fiat to the Claimant.
The family duly made a s.13 application arguing (among other things) that:
- The expert report obtained by the Attorney General was important new evidence, enabling the circumstances of Megan’s death to be explored more fully.
- It was possible that a fresh inquest would lead to a PFD report and there was a substantial public interest in more being known about the dangers of diabulimia. The coroner should therefore have called evidence from an appropriate person within the NHS regarding diabulimia and hence there was an “insufficiency of inquiry“.
- The Coroner failed to comply with r.23(2)(c). Had he done so, the family would have asked for the psychologist to give oral evidence and that this was a significant error by the Coroner and an “irregularity of proceedings” within s.13(1)(b).
- It was possible that a fresh inquest may lead to the medical cause(s) of Megan’s death being recorded in different terms or with a different and fuller narrative conclusion.
- A fresh investigation was necessary to comply with the state’s duties under article 2 ECHR.
The Senior Coroner maintained his neutral stance to the application, albeit attending the court via leading counsel to make the following points orally:
- In circumstances where after the initial inquest an expert witness suggest there should have been a wider inquiry than was carried out it was for the court to decide whether a fresh inquest is necessary or desirable in the interests of justice;
- A Coroner conducting an inquest was not under any duty to take proactive steps to seek out additional evidence which might, once obtained, give rise to a duty to make a PFD report;
- The Coroner accepted he was in error in failing to comply with r.23(2)(c), but it was for the court to determine whether this was a material error: it was submitted that an objection by an interested person under r.23 would be a factor for the Coroner to consider when deciding whether to admit read evidence, but there was no power of veto, and so an objection would not necessarily compel the Coroner to receive oral evidence;
- The Coroner had not been under any duty to conduct an Article 2 compliant inquiry. At the time of the inquest, there was no suggestion that Article 2 was engaged;
- The Coroner had not acted unreasonably in declining to sign a consent order. The family’s application that the Coroner should pay their costs from the point of the Professor’s report being received by the Coroner (which were said to be in the region of £60,000) should therefore be refused.
The Divisional Court’s decision
The Divisional Court cited the key decision regarding ordering a fresh inquest under s.13 Coroners Act 1988 – ‘the Hillsborough case’ – where it was made clear that “The single question is whether the interests of justice make a further inquest either necessary or desirable.”
The Court noted that the Professor’s report had provided important background about diabulimia and possible deficiencies in the general care of such persons. The report suggested that warning signs and “red flags” were not acted upon in Megan’s case and that inadequate care may have contributed to Megan’s decision to take her own life. In the court’s view that new evidence not only added important information but also cast a different light on the evidence given at the first inquest. In those circumstances a fresh inquest was necessary and desirable. The Court stated that, in that context, they also accepted a number of other grounds which, importantly, would not otherwise have caused the Court to direct a fresh investigation, had not been for the new expert evidence.
- The Court agreed it was possible that a fresh inquest would now lead to a PFD report, however they acknowledged that the evidence considered by the Coroner was not such as to require him to make such a report. Nor had he been obliged to seek out evidence to support the making of such a report.
- The Coroner had accepted that he fell into error in failing to comply with r.23. Had the family known of their right to object, they would have objected to the reading of the psychologist’s statement. But if it had not been for the fresh evidence, the Divisional Court would not have regarded the Coroner’s error as having given rise to a risk that justice had not been done. In other words, the failure to comply with r.23 was a procedural error, but was not a material one.
The Court did not, however, accept the submission that Art 2 was engaged on the basis of the evidence considered by the Coroner. He could properly find, on that evidence, that Megan had capacity and that, having been advised by the CEDS team not to discontinue her treatment, she had been entitled to discharge herself from further care. On the evidence considered by the Coroner, those who had been caring for Megan were obliged to respect her autonomy, and had no control over her conduct in the community. On that evidence, they were not, at the time of her death, under any operational duty to protect her from the risk of suicide. In those circumstances, there was no basis for the Coroner to regard the investigative duty under article 2 as being engaged.
Finally on costs, these were at the court’s discretion in a s.13 case and the correct approach to the exercise of that discretion was as set out by the Court of Appeal in R (Davies) v Birmingham Deputy Coroner. A coroner who remained neutral should not be expected pay a successful claimant’s costs. The Senior Coroner had not acted unreasonably in declining to consent to the application and leaving the matter for the Court to decide.
This blogger is unaware of another case where the Attorney General has actively sought out further expert evidence before deciding whether to provide a fiat. The more usual approach is to rely upon the information and evidence provided by the parties to the application. The fiat acts as a permission stage or gateway to s.13 – one cannot contemplate any circumstances where the High Court faced with a Judicial Review permission application would consider taking a similar step.
However, in tune with the inquisitorial nature of coronial proceedings, it may be that Attorney General, as the guardian of the gateway to a s.13 application in the public interest felt a need to be better informed before discharging her own public functions, and hence sought her own expert evidence on the issues. Whether that unusual step becomes more commonplace in future remains to be seen.
Whilst the Divisional Court did not answer the question as to whether, as a matter of law, an objection by interested persons under r.23 operates in effect as a veto, or only as a relevant factor to be considered by a coroner. The preferred view must be the latter position.
The Court’s approach to costs should give some comfort to coroners. The Court here was clear that it could not be said that the only reasonable course for the Coroner was to sign the proposed consent order. The grounds of the claim were based primarily on the new expert evidence and not on a challenge to the Coroner’s decision on the evidence he considered at the first inquest. It was reasonable for the Coroner to leave it to the Court to determine whether the grounds of claim should succeed. A Coroner attending through counsel who played a neutral and helpful role should not be said to have made himself an active party in the proceedings and be put at risk of costs. It would be wrong to refuse a neutral coroner the cost protection afforded by Davies merely because he had not initially consented to an application that subsequently succeeded.
As an independent judicial office holder coroners must act impartially. Had costs been awarded here there would be a real danger that costs applications in the future would be presented in terrorem by Claimants and that, as a result, coroners would refrain from attending to provide assistance to the Court in future cases.
To adopt any other approach risks encouraging cost centric decision making by coroners when faced with any challenge that has some, even if very limited, prospect of success. This would be contrary to the principle of judicial immunity and independence: the concepts that lie at the heart of Davies.
The Senior Coroner was represented by Bridget Dolan KC of Serjeants’ Inn Chambers.
 Attorney General v HM Coroner for South Yorkshire (West)  EWHC 3773 (Admin) at .
  EWCA Civ 207,  1 WLR 2739