R (Canning) v HM Coroner for Northamptonshire
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE KEENE,LORD JUSTICE WARD |
| Judgment Date | 25 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1225 |
| Docket Number | C1/2005/2766 & C1/2005/2766/A |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2006 |
[2006] EWCA Civ 1225
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(LORD JUSTICE LAWS)
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Keene
Lord Justice Carnwath
C1/2005/2766 & C1/2005/2766/A
MR R CLAYTON QC & MS H HILL (instructed by Messrs Hodge Jones & Allen, Twyman House, 31–39 Camden Road, London, NW1 9LR) appeared on behalf of the Appellant.
MR IAN BURNETT QC & MR A SHARLAND (instructed by Northampton County Council, County Hall, Northampton, NN1 1DN) appeared on behalf of the Respondent.
1. This is an appeal from a decision of the Divisional Court on the application under section 13(1) of the Coroner's Act 1988 pursuant to a fiat granted by the Attorney General on 13 June 2005. Mr Canning seeks an order that Mrs Ann Pember, Coroner for the county of Northampton, should hold an inquest into the death of his son, Francis.
Laws LJ began his judgment by saying that this was a tragic case which must elicit the sympathy of anyone familiar with the facts of it and I associate myself with that statement. However, we have to consider whether the decision of the Divisional Court was wrong in law. Although we have been given some detailed and helpful assistance on the law, it does not seem to me that there has been any material dispute for the purposes of this case.
The main points can be summarised shortly. The coroner's duty in the matter is defined by Section 8(1) of the Coroner's Act 1988. He was required to hold an inquest if there was:
"…reasonable cause to suspect that the deceased—
(a) has died … an 'unnatural' death".
The Divisional Court proceeded on the basis that that test would be met by –
"… a wholly unsuspected death from natural causes which would not have occurred but for some culpable human failure".
Those words are taken from the judgment of Simon Brown LJ in R (Touche) v Inner London North Coroner [2001] 1 QB 383. For the purposes of this appeal there has been no dispute that that is the appropriate test to be applied. The words "reasonable cause to suspect" imply a low threshold. They do not require a prima facie case; see Hussein v Choung Fook Kam [1970] AC 942. Finally, the coroner's decision not to hold an inquest can only be impugned on Wednesbury grounds, in other words for irrationality or illegality; see Touche per Simon Brown LJ at paragraph 16 and Terry v East Sussex Coroner [2002] QB 312 para 21.
Before the Divisional Court Miss Hill, who then appeared for Mr Canning, also relied on cases under article 2 of the Human Rights Convention as showing that there should be an inquest where there was evidence of a failing going beyond "simple negligence" in the care and treatment of a patient; see Goodson v HM Coroner for Bedfordshire and Luton [2004] EWHC Admin 293(1) per Richards J para 59. However, as Laws LJ noted:
"Miss Hill candidly, and if I may say so plainly rightly, accepted that it would at least be very difficult for her to mount an Article 2 case absent a fair wind on the domestic law."
Mr Clayton, who led Miss Hill in this court, did not as I understood it, depart from that concession.
The application failed before the Divisional Court. Laws LJ with the agreement of Ouseley J found it impossible to hold that the coroner arrived at an "irrational or otherwise unlawful" decision in declining to hold an inquest. Permission to appeal was refused on the papers by Hooper LJ but granted following an oral hearing by Longmore and Lloyd LJJ. They referred to a decision of this court made after the Divisional Court's judgment, R (Takoushis) v HM Coroner for Inner North London and Guys and St Thomas' Hospital NHS Trust and the Commissioner of the Metropolitan Police [2005] EWCA Civ 1440, which they saw as giving some support for "the possibility of systemic failure being a ground for concern". Mr Clayton does not seek to argue that the judgments in Takoushis would add any fuel to the arguments otherwise available. I note, however, that the court approved Richards J's summary of the principles derived from the Strasbourg case law and also held that the present system under the Coroner's Act does not fall short of article 2 requirements.
The Court of Appeal was faced with a request for the admission of new evidence from a Miss Deborah Coles, which it refused. But it stood over to this hearing an application to admit further evidence from Dr Milla, whose earlier report was before the Divisional Court. In this court it has been accepted by Mr Burnet QC on behalf of the Coroner that it is appropriate for us to consider the subsequent evidence from Dr Milla, (whether or not it is strictly admissible) , on the basis that the Coroner has a continuing duty. If it were not to be considered by us, it might open the way to a further application of a similar kind.
I turn to the facts. Francis died aged 14 during the morning of 23 January 2004. He was a gravely disabled child. He had severe cerebral palsy and what is referred to a global neuro development delay. He was epileptic, quadriplegic, blind and without speech. He could communicate to a limited extent by crying, laughing or smiling and might scream if he was in pain.
The issue turns principally on what happened overnight of 22 January 2004. The essential facts, most of which are uncontested, can be taken from the judgment of Laws LJ:
"2. Francis spent a substantial amount of time at a residential respite care centre called The Squirrels, which as run by the Northamptonshire Health Care Trust. He was there for five days, Monday to Friday, every two weeks. On Monday 19 th January 2004 he was admitted to The Squirrels as usual for five days respite care. He was found then to be slightly constipated and his breath had an offensive smell.
"3. There is some evidence that the nurse at the hospital was consulted. At all events, at length, his bowels were opened on 21 st January and no further problems seem to have been encountered in relation to the odour of his breath. From 19 th to 22 nd January, he went each day (transport, of course, being provided) from The Squirrels to the Wren Spinney Community Special School at Kettering which he had attended since October 2003.
"4. When he returned to The Squirrels from school, on 22 nd January 2004, he was unsettled. According to a report from Susan Clennett the Clinical Risk Manager of Northamptonshire Health Care NHS Trust he was 'restless and moaning.' There is some evidence that that was not itself unusual. He was put on his bed. He showed a loss of appetite when he got up to have his tea. Again there is some evidence that that was not unusual, so much was acknowledged by Miss Hawes, a senior primary nurse at The Squirrels. Miss Hills for the claimant submits, and there is some foundation for this, that the picture is to say the least, not entirely clear.
"5. Francis remained unsettled. He started to sweat but his temperature was within normal range. At 8.45pm he was restless and crying, and he was so again at about 10.00pm and at 10.50pm. On that last occasion he appeared to be in pain and was given paracetamol."
Laws LJ noted some differences in the evidence as to the overnight position:
"6. After that, he had, according to Miss Hawes, a settled night; on the other hand there was a hearsay statement from Mrs Hawes, the school nurse, that he had a poor night. She was not of course a direct witness of what was happening at The Squirrels.
"7. Miss Hills says that there are some uncertainties and inconsistencies in the material relating to events on 22 nd January. As I have said, one was as to the reason for how he presented on return from school. There was an account relating to a change of his Baclofen pump and also there was the question of whether it was or was not usual for him to have a poor appetite."
I take up the account of the events of the following morning:
"8. Early the next morning, 23 rd January, Francis had some breakfast. His hands and feet this time were found to be cold. Miss Hawes thought he should see a doctor. She phoned the claimant. There is some dispute as to the detail of what happened at that stage, but, at all events, Francis was put on a school bus at 8.00am to 8.10am. On arrival at school at about 9.10am he was found to be pale, his lips were slightly cyanosed and his extremities cold. His colour however improved; but the school nurse, Miss Hawes, on returning to the classroom where Francis was, found he was still pale, his extremities remained cold and his tongue looked dry.
"9. She phoned the claimant and she told him that Francis was very poorly. The claimant went to the school, together with a Learning Support Assistant he took Francis to the Kettering General Hospital. On the way, Francis' breathing became shallower and it is the claimant's own firm belief that he died in the car. The school nurse was to telephone The Squirrels and report that Francis had died on the way to hospital. The post mortem examination was carried out by Dr Stocks, the Consultant Histopathologist at the Kettering General Hospital. He concluded that the cause of death was an infarction of the small bowel caused by what is called a volvulus, a condition in which a section of the bowel becomes twisted. This twisting leads to the bowel become devascularised and to acute inflammation.
"10. In Francis's case there was also evidence of peritonitis. These later critical stages would, in doctor Stock's view, take about 24-hours to develop. He also gave it...
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