R (on the application of Tainton) v HM Senior Coroner for Preston and West Lancashire
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 16 June 2016 |
| Neutral Citation | [2016] EWHC 1396 (Admin) |
| Docket Number | Case No: CO/3557/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 June 2016 |
and
[2016] EWHC 1396 (Admin)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Kerr
Case No: CO/3557/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Manchester Civil Justice Centre
Judgment handed down at
Royal Courts of Justice
Strand, London WC2A 2LL
Emma Favata (instructed by Broudie Jackson Canter) for the Claimant
Bridget Dolan QC (instructed by HM Senior Coroner for Preston and West Lancashire) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 25 May 2016
Introduction
This is the judgment of the court to which we have both contributed.
On 23 October 2013, James O'Neill, who had been a serving prisoner prior to his release on compassionate grounds, died of cancer of the oesophagus. It was and remains common ground that the inquest which followed his death had to meet the obligations of the United Kingdom under Article 2 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and thus required an investigation into the circumstances of the death. This application which proceeds with permission granted by Judge Stephen Davies raises questions as to the directions which ought properly to be given to an inquest jury by a coroner in such an inquest both generally and specifically directed to the facts of this case.
In short, Mr O'Neill's mother, the claimant, challenges the decision of the defendant, Dr James Adeley, HM Senior Coroner for Preston and West Lancashire ("the coroner"), not to leave to the jury the issue whether admitted failings on the part of medical staff responsible for his care while in prison significantly hastened or may have significantly hastened Mr O'Neill's death by delaying the diagnosis of his cancer. The claimant seeks an order quashing the record of inquest and an order that a fresh inquest be held.
Thus, propositions advanced in support of this application are, first, that the coroner erred in law by not leaving to the jury the question whether, on the balance of probabilities, the admitted failure of medical care did significantly hasten Mr O'Neill's death. In the alternative, the coroner should have exercised his discretion to leave to the jury the question, even if not proved on the balance of probabilities, whether it was a possibility that his death was thereby significantly hastened.
The Facts
Mr O'Neill was born in November 1966 and was aged 46 when he died. In September 2012, he was remanded at HMP Preston. From October 2012 onwards, he complained of symptoms to various medical staff employed by the Lancashire Care NHS Trust ("the Trust"). He complained of a persistent cough. By November 2012, he was noted to be coughing blood. Antibiotics were prescribed. A sputum sample was not taken. He was referred for a chest x-ray.
On 3 December 2012, Mr O'Neill was sentenced to eight years and eight months' imprisonment. Three days later, he underwent the chest x-ray, which was clear. He took a blood test on 28 December, the results of which showed a raised erythrocyte sedimentation rate (ESR) of 25 and a raised white blood cell count of 11.4. The review notes indicated that raised ESR is an indicator of infection, inflammation and cancer.
Dr Mohammed Rafiq attributed the results to a chest infection. He asked for further blood tests to be done three to four weeks later. There is no evidence that these were done. On 11 January 2013, Mr O'Neill consulted a blood borne virus nurse, Ms Makoni, telling her that he was passing "whitish" urine. He was given a specimen jar, but there is no record of a urine sample being provided for analysis or of any other follow up.
On 25 January, Mr O'Neill saw Ms Makoni again and complained that he was coughing up blood and had a burning sensation when producing phlegm. She could not see traces of blood when he coughed so she gave him a specimen jar and asked him to provide a sputum sample and give it to a member of the health care staff to enable further investigations to be done. There is no evidence that he provided a sputum sample or that this was followed up.
On 11 March 2013, Mr O'Neill reported to another doctor that he had lost weight. He saw a different nurse, Ms Dawson, on 4 April 2013. He reported that he still had a productive cough. She advised him to provide a sputum sample and to return if the symptoms got worse.
On 1 May 2013, he saw Ms Parry, a different nurse again, at a routine health monitoring clinic. She noted nothing abnormal, but he reported that his urine was darker than usual, that he had been feeling very sick and had lost a lot of weight. The nurse did not check his weight or medical records. She recommended that he be reviewed in six months.
On or about 9 May 2013, Mr O'Neill was transferred to HMP Wymott, where he was screened on arrival. He reported to the nurse conducting the screening that he had lost weight, had stomach pains, had not seen a GP for months; he had a burning sensation when he ate and drank and often vomited. She made a routine referral to a GP.
On 10 June 2013, he saw another nurse, Ms Kettle, for a routine check for suspected hepatitis C. On 20 June, he collected his medication from another nurse, told her had lost a lot of weight in the previous two months and that he had been vomiting for a week. She noted that his forthcoming GP appointment was fixed for 24 June, four days later.
On that day, Mr O'Neill saw a Dr Kantharia, complained that he had been vomiting, that his vomit contained dark red blood and that he had lost four kilograms in the past three months. Dr Kantharia made an urgent referral to a specialist under a procedure which requires an appointment within two weeks where a patient is suspected of having cancer.
So it was that on 2 July 2013, he attended the chest clinic at Royal Preston Hospital. An x-ray, computed tomography (CT) scan and blood tests were done. He was diagnosed with cancer of the oesophagus. On 15 July, a further CT scan revealed that the cancer had spread to his liver and right lung. Chemotherapy was considered. On 22 July, he had a "stent" fitted, to help him swallow. On 23 July, he was advised that he had six to twelve months to live and that no active treatment was possible.
Mr O'Neill was then referred to Dr Elaine Young, a consultant clinical oncologist, on 23 July. Four days later he returned to HMP Wymott. On 22 August, he was returned to HMP Preston. At the end of September 2013, he spent 10 days in a hospice before returning to HMP Preston. He was admitted to the Royal Preston Hospital for a blood transfusion on 17 October and released on temporary licence. He died on 23 October 2013.
It is not surprising that there was an independent clinical review into the circumstances of Mr O'Neill's treatment and death. It was conducted by Dr Bicknell who, in February 2014, concluded that:
"the time between presentation with respiratory symptoms to referral was 8 months. This is entirely unacceptable. The majority of this delay was in HMP Preston where abnormal blood tests were not acted upon and serious symptoms such as coughing up blood, weight loss and difficulty swallowing not followed up."
Dr Bicknell's view was that the prison health care "fell significantly below an acceptable standard" with regard to the late diagnosis of cancer. That conclusion was effectively adopted in a report by the Prisons and Probation Ombudsman (the PPO report), in June 2014. It made five recommendations including that the heads of health care at HMP Preston and HMP Wymott should:
"… ensure that nurses refer prisoners to see a GP when they report concerning symptoms, that GPs refer to specialists appropriately and that action identified at consultations are followed up."
The Trust accepted the conclusions of these various investigations and, on 4 March 2015, wrote to the coroner in terms:
"… the Trust accepts, as does Nurse Makoni, that she ought to have referred Mr O'Neill to one of the prison GPs when he presented to her in January 201[3] complaining of haemoptysis.
It is further accepted that had a GP referral been made, the GP would have made a two week referral to hospital for Mr O'Neill to undergo additional investigations – which would probably have involved endoscopy – with a diagnosis of cancer being made around mid-February 201[3].
The Trust is, of course, unable to say how advanced the cancer was in mid-February 201[3]."
Against that background, on 29 and 30 April 2015 an inquest was held by the coroner with a jury. The admissions mentioned above were repeated at the start by the Trust's representative, and in evidence by the relevant witnesses. It was not disputed that Mr O'Neill's condition should have been diagnosed in around February 2013, some five months earlier than it was diagnosed, and that it would have been diagnosed in February 2013 if he had been properly attended to by the prison health care staff.
We have seen a "transcription of notes" of Dr Young's evidence at the inquest. They are not in the form of a professional transcript but we were told at the hearing that they were typed from a digital recording of the inquest proceedings; by the time of the hearing before us, they were in agreed form. The coroner noted at the end of Dr Young's evidence that it had lasted for about one and a half hours. The main points of her evidence were as follows.
When she saw Mr O'Neill on about 23 July 2013, it was too late for chemotherapy; he would not have tolerated it. When she saw him in September 2013, he was worse and, she concluded, nearing the end of his life. The...
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