Witnesses often solemnly, sincerely and truly stumble over the words of the affirmation or oath. Indeed many may wonder why it is that, when already feeling anxious at being placed in such an unfamiliar situation, they have to start the process of speaking out loud in a courtroom with such a tricky tongue twister. But the witnesses’ vow is much more than some archaic linguistic formality. This solemn promise to tell the whole truth, and not just the parts you want to reveal, sits at the very heart of our coronial inquisitorial system. It is why it should be an obvious golden rule for every witness at every inquest that if you have any question at all in your mind whether or not you should tell the Coroner about some potentially relevant facts, then just speak up.
The Coroner will be best placed to decide if something is or is not relevant and material to their investigation. As this Divisional Court decision now underlines in red, asking other colleagues what to do and then following their misplaced advice that you need not reveal the full story to the Coroner, is unlikely to be the right course.
Background
The tragic background to the Claimants’ case for a fresh inquest into their daughter Sally’s death makes disturbing reading.[1] Sally Mays, who suffered with an emotionally unstable personality disorder, was 22 years old when she died on 25 July 2014. Earlier that day Sally’s Community Psychiatric Nurse (‘CPN’) had accompanied Sally to the NHS Trust’s acute admissions unit requesting her admission. Sally’s community team believed that Sally was at substantial risk of fatal self-harm and so needed to be kept safe. However, following a 14-minute ‘lamentable’, ‘slipshod and peremptory’ assessment, two ‘gatekeeping’ nurses decided Sally did not require admission to hospital and when Sally refused to leave they called the police asking them to remove her from the unit. Sally died at home that evening from the effects of asphyxiation and overdose.
A ‘Quixotic’ decision
At the conclusion of an eight day inquest in October 2015 the Senior Coroner was excoriating in his criticisms of the refusal to admit Sally, describing it as an “illogical, quixotic and unconscionable decision“. The Senior Coroner found as a fact that there had been an “inappropriate pre-determination not to offer admission to Sally” by the gate-keeping nurses and that a mandatory assessment by a medical practitioner had not been requested. Further, the process had itself caused Sally additional harm. The Senior Coroner found, that the refusal of admission was “provocative and escalated Sally’s distress and contributed to her reactive self-harming behaviour”. These were “gross failings in her management” when Sally would probably not have died had she been admitted to hospital. The Coroner recorded that Sally had died as a result of neglect, noting that there had been a number of missed opportunities to prevent Sally’s death.
New evidence
A few days after the inquest ended, it came to light that information had been withheld from both the NHS Trust’s own internal investigation and the Coroner. The information pointed towards a potential further missed opportunity to save Sally’s life. After the inquest the CPN revealed to a Trust Assistant Director that very shortly after Sally was refused admission the CPN had a conversation in the car park outside the unit with the Consultant Psychiatrist from the admissions unit who knew Sally. According to the Assistant Director’s account, the CPN had said that she had “explained what had happened” to that Consultant who reassured her that Sally would either “settle down or be picked up by a service.” Sally was still alive when this conversation took place. The CPN did not record this conversation in Sally’s records when she later wrote up the events of the day, as she considered it an informal encounter.
The following week, having by then learned of Sally’s death, the CPN discussed the conversation both with the Consultant involved and with Sally’s Community Consultant Psychiatrist at the NHS Trust. Both doctors were said to have advised the CPN that she need not document the conversation. Some months later, during an NHS internal investigation into Sally’s death, the CPN was questioned about why, despite her clear concern at Sally being refused admission, she had not escalated the matter to a more senior colleague? The CPN chose not to mention her conversation with the admissions unit’s Consultant that day. Similarly, when the Consultant concerned was also asked directly by the Trust’s investigator whether Sally had been discussed with him at all on 25th July 2014, he too did not reveal their conversation.
Withholding from the inquest
Furthermore, from documents that had only become available to the Claimants in 2021, arising from a GMC investigation into the Consultant’s conduct, it appeared that the CPN had also spoken with the Consultant again during the inquest. She had asked him whether, in response to questions about whether she had escalated her concerns, she should tell the Coroner about their conversation in the car park. The GMC case examiner recorded that “they agreed she would not mention it to the Coroner” as in their view “this had not been a clinical conversation”.
In the six years since the conversation came to light the NHS staff involved have been the subject of a lengthy police investigation into perverting the course of justice, an internal investigation by the NHS Trust and subsequent referral to their professional bodies. Yet these investigations each focussed on the withholding of evidence rather than what was actually said between the CPN and consultant on 25 July 2014. No one, least of all Sally’s parents, appeared to know the full facts of what happened in the car park that day. Mr and Mrs Mays brought a s.13 applications for a fresh inquest and it was only after obtaining the Attorney General’s fiat to seek a new inquest that they discovered some more of the background. Documents were provided to the parents by the NHS Trust in 2021 after the fiat was granted, which, the Claimants felt, presented varying and conflicting accounts of the car park conversation.
The Court’s decision
A Divisional Court of three judges, including the Chief Coroner, unanimously held that a fresh inquest was required to examine the material that had been withheld from the Coroner at the first inquest.
Lady Justice Simler, giving a judgment with which both Mrs Justice May and HHJ Teague QC agreed, noted that the decision in HM Attorney General v HM Coroner of South Yorkshire (West)[2] made it clear that the single test under s13(1)(b)of the Coroners Act 1988 was whether it was ‘necessary or desirable in the interests of justice’ for a fresh inquest to be ordered. This might be so even in circumstances, such as these, where the new evidence sought to be considered by the Senior Coroner would not change the substantive conclusions he had already reached.
A ‘conscious’ decision
Her Ladyship noted that, whilst a number of investigations undertaken since 2015 had considered the withholding of the evidence, no one had actually sought to establish what actually happened in the car park that day. It was, said her Ladyship, ‘clear’ from documents that a ‘conscious decision’ was taken ‘both before and during the inquest to withhold information about the car park conversation’. A fresh inquest would enable public scrutiny of that evidence to take place. It was therefore both necessary and desirable in the interests of justice for the evidence to be investigated and the facts to be established in public. Particularly as that fresh and relevant evidence was ‘likely to lead to additional findings of fact being made’. It represented a possible lost opportunity for a Consultant to intervene in the decision and prevent Sally’s death.
Furthermore, Sally’s had been an Art 2 inquest, but as a result of the failure to disclose this potentially material evidence, the State’s investigative obligations under Article 2 had not been discharged. The minimum requirements for compliance as set out in Jordan v UK[3] had so far not been met. The fresh inquest would enable the Article 2 investigative duties to now be met in full. Her Ladyship also remarked that the inclusion of factual findings in a narrative conclusion could lead to important lessons being learned by public bodies.
The wishes of the parents were also relevant in her Ladyship’s view. Sally’s parents wished for a fresh inquest. The emergence of this material evidence after the conclusion of the inquest was no doubt distressing to them and had the effect of prolonging their grief and preventing them from obtaining closure.
Lessons
This case should be an important lesson to NHS staff that disclosing all potentially relevant evidence about the circumstances of a death is of paramount importance. Even if one considers a matter to be inconsequential, the relevance of events surrounding a death will be for the Court, not the witness, to decide. In an Art 2 inquest in particular, the broader circumstances of the death will fall within the scope of the inquest and this will usually encompass potential opportunities to prevent a death that could have been, but were not, taken.
Where a witness is in any doubt regarding what a coroner should be told, following advice to keep quiet that has been given by another colleague who is themselves wrapped up in the same events is at best, rather ill-advised. Although the CPS ultimately decided not to bring any charges for perverting the course of justice in this case, an encounter that might have been explored and dealt with in a matter of a few minutes had it been revealed to the original inquest has had significant ramifications for all the staff concerned.
Must the whole inquest be heard again?
An interesting procedural issue of note in this case is that in bringing their s13 application, the Claimants were making no criticism whatsoever of the Senior Coroner, nor did they have any wish to re-run those matters already investigated in detail over eight days of oral evidence in 2015. The Senior Coroner through his counsel endorsed the Claimant’s proposal that the transcript of that earlier inquest evidence might be admitted, in its entirety, as documentary evidence pursuant to r.23 of the Coroners (Inquest) Rules 2013 and so the fresh inquest need only hear limited live evidence addressing the facts of what actually happened between the nurse and the Consultant in the car park that day.
Whilst the Court noted that the manner in which the fresh inquest should be run was a matter for the Senior Coroner, there was no disapproval of that proposal.
Footnotes
[1] See also our previous post here.
[2] [2012] EWHC 3783
[3] (2001) EHRR 5 §106-§109
Bridget Dolan QC of Serjeants’ Inn advised and represented Sally’s parents (on direct instruction) in the s.13 application as well as at the first inquest and in the subsequent successful civil claim.