Mr Thong Nguyen v HM Assistant Coroner for Inner West London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lord Justice Bean |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWHC 3354 (Admin) |
| Docket Number | Case No: CO/1958/2021,CO/1958/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mr Justice Jay
Case No: CO/1958/2021
and
Leslie Thomas QC (instructed by Leigh Day) for the Claimant
Jason Beer QC (instructed by Westminster City Council Legal Services) for the Defendant
The Interested Parties were neither present nor represented
Hearing date: 1 st December 2021
Approved Judgment
Introduction
This is an application by Mr Thong Nguyen (“the Claimant”) brought under s. 13 of the Coroners Act 1988 pursuant to the fiat of HM Solicitor General granted on 26 th April 2021 for the quashing of the inquisition into the death of his son, Hayden Nguyen.
The inquest into Hayden's death took place between 14 – 16 th November 2017 before Dr Shirley Radcliffe, Assistant Coroner in the Coroner's area for London (Inner West) Westminster (“the Assistant Coroner”). According to the Record of Inquest given on the final day of the hearing, Hayden died of natural causes. The medical cause of death was lymphocytic myocarditis (cause 1a) and disseminated enterovirus infection (cause 1b). The circumstances in which he died were recorded by the Assistant Coroner as follows:
“At 7:30pm on 24/08/16, Hayden attended the emergency department in Chelsea and Westminster Hospital. He was treated for sepsis with antibiotics and admitted. Following a worsening of his condition he was moved to the high dependency unit where he suffered a cardiac arrest at about 6am. Despite advanced life support resuscitation it was not possible to restore circulation and he was pronounced life extinct at 7:15am on 25/8/16.”
The challenge to this inquisition is brought on three distinct grounds:
(1) The Assistant Coroner's decision not to hear evidence from an expert instructed by the Claimant, Dr Conway, was flawed, and/or a copy of Dr Conway's report should have been sent to the expert instructed by the Assistant Coroner, Dr Martin, so that he could comment.
(2) There is new evidence that justifies re-opening the inquisition.
(3) The Assistant Coroner appeared to pre-determine the key issues.
The Claimant was represented by Mr Leslie Thomas QC who appeared remotely. The Assistant Coroner was represented by Mr Jason Beer QC to assist the Court on Grounds 1 and 3. She is neutral on Ground 2. None of the Interested Parties was present or represented.
This case has a long history and it arises out of tragic circumstances. Given our conclusion that there will have to be a fresh inquisition into Hayden's death, I propose to set out the facts as neutrally as possible consistently with the need to do justice to the three Grounds that have been advanced. There have been various factual summaries in the expert evidence, but for present purposes I may rely primarily on the parties' skeleton arguments.
Essential Factual Background
Hayden was born on 19 th August 2016. The pregnancy and birth were, generally speaking, uneventful.
At 18:56 on 24 th August Hayden, who had been suffering from fever for a number of days, was brought by his parents to Charing Cross Hospital. As that hospital does not have a paediatric department, on arrival there he was referred to the Chelsea and Westminster Hospital where he was admitted to the Paediatric Emergency Department at 19:33. He was summoned for an initial stage triage by a junior nurse five minutes later.
The junior nurse conducted an initial assessment of Hayden which revealed an axillary temperature of 39.4 degrees, a respiratory rate of 88 breaths per minute, capillary refill time of less than 2 seconds, oxygen saturation of between 95–98% and a heart rate of 190–208. Many of those observations were abnormal, and the nurse escalated Hayden's case to Dr Hester Yorke, Consultant in Paediatric Emergency Medicine, and Dr Felicity Taylor, Specialist Registrar.
Hayden was then examined by Dr Alina Grecu, Senior House Officer. She observed that Hayden appeared jaundiced but had no rash or mottled skin. Other observations were unremarkable. Mrs Nguyen told her that Hayden had been feeding well until that day. Owing to the history of fever, reduced feeding and Hayden's age, Dr Grecu discussed his case with Dr Taylor.
Dr Taylor reviewed Hayden in the presence of his parents. Mrs Nguyen confirmed the history recorded by the junior nurse. Upon examination, Hayden was alert and active. He had mild jaundice but his skin was of normal tone. According to Dr Taylor, there had been some improvement in Hayden's breathing and heart rate since triage.
Dr Taylor decided to implement a full septic screen of Hayden to be followed by intravenous antibiotics. The blood gas test performed at 20:38 revealed a mild metabolic acidosis of 7.28 and a lactate level of 4.0 (well above the normal threshold of 2.0). Initial blood tests at 20:57 showed a low platelet count of 57. Dr Taylor's interpretation was that the lactate level did not correlate with the clinical picture of a stable, well-perfused new-born: the blood gas test had been performed upon a sample obtained via a prolonged tourniquet of the right hand, and in her view was, therefore, a “squeezed sample” and unreliable. In her clinical judgment, a fluid bolus was not required.
Dr Taylor discussed Hayden's case with Dr Yorke. They agreed that in view of the clinical picture he did not require a fluid bolus at that stage but a further blood gas test should be performed upon his transfer to the ward. Hayden was given antibiotic treatment and a septic screen. A lumbar puncture was also carried out.
At approximately 21:00 Dr Jonathan Penny, Paediatric Consultant, started his shift in the Paediatric Emergency Department. Dr Grecu gave him an overview of the history and management of Hayden as well as the results of the blood samples. Her recollection is that they discussed whether Hayden should be given a fluid bolus and Dr Penny indicated that he would review him on the Mercury Ward and make a decision at that point. Dr Penny was not to see Hayden until 01:45 the following morning.
Hayden was not in fact admitted to the ward until about 23:00. Before then, observations at 21:50 and 22:45 showed a heart rate of 165 and 160 respectively, a respiratory rate of 80 and 78 respectively, and temperatures of 37.3 and 37.2 respectively. At 22:45 Hayden's blood pressure was recorded at 69/18, which is extremely low.
Upon admission to the Mercury Ward, Hayden was initially assessed by a Staff Nurse. She observed that his temperature ranged between 37.2 – 37.6, his heart beat was between 170 – 185 beats per minute, and his respiratory rate was 70–76 beats per minute. He appeared jaundiced, mottled and was peripherally cold. The Staff Nurse reported her concerns to a colleague who assessed Hayden's Paediatric Early Warning Score (“PEWS”) as between 3 and 5. Hayden's case was escalated. At about that time, the results of the lumbar puncture were received: these showed that Hayden's white cells were 12cmm.
At 23:55 Hayden was reviewed by Dr Chloe Norman, Senior House Officer. She observed that he appeared thin and jaundiced, was intermittently tachypnoeic (i.e. his breathing was rapid and shallow) and was mottled. By that stage a peripheral capillary refill time of 3–4 seconds had been observed. At Dr Norman's request, Dr Oluwakemi Bako, ST7 Paediatric Trainee, reviewed Hayden at about midnight on 25 th August. She took a history, including the report from Hayden's parents that he had not fed properly since about 18:00, and observed that his heart rate was 170, his respiratory rate was 70 and his central capillary refill time was 2–3 seconds. Dr Bako's assessment was that Hayden had sepsis although he appeared clinically stable. She ordered the administration of saline bolus fluids, which began at 00:35, as well as repeat blood gas within an hour and repeat blood tests the following morning.
At that point, Hayden had a PEWS score of 4 and under Trust policy the on-call consultant should have been informed. He was not.
At approximately 01:20 Dr Norman was called to see Hayden because of nursing concerns. He remained tachypnoeic and tachycardiac. Upon examination, at around 01:30, Dr Norman observed that Hayden appeared alert. His capillary refill time was now 4 seconds peripherally, and his heart rate was 184. Dr Norman carried out blood gas tests at 01:32 and 01:34. These revealed metabolic acidosis of 7.17 and 7.06 and a lactate level of 7.1 and 7.5 respectively. Upon being made aware of these results, Dr Bako requested a second fluid bolus, administration of intravenous acyclovir (an antiviral), and chest and abdominal x-rays.
Dr Bako contacted Dr Jonathan Penny who reviewed Hayden at 01:45. He recommended that Hayden be commenced on Optiflow, that blood tests be repeated within the hour, and that Hayden be transferred to the Paediatric High Dependency Unit. He did not give specific instructions for monitoring.
A second fluid bolus was administered at 01:45 and intravenous acyclovir commenced at 02:10. A chest x-ray was conducted at 02:20 and revealed a distended abdomen. When a second cannula was inserted by Dr Bako into Hayden's left hand at about 02:30, it was noticed that his skin was becoming more mottled. His capillary refill time was 2–3 seconds. Hayden's PEWS score was now 5, with a respiratory rate of 74, heart rate of 184, increased work of breathing and...
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