The Queen (on the Application of Gerard Joseph Parkinson) v HM Senior Coroner for Kent
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWHC 1501 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5280/2016,CO/5280/2016 |
| Date | 15 June 2018 |
[2018] EWHC 1501 (Admin)
Lord Justice Singh
Mr Justice Foskett
and
HH JUDGE Lucraft QC sitting as a Judge of the High Court
Case No: CO/5280/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Rawlinson QC and Mr Edward Ramsay (instructed by Pennington Manches LLP) for the Claimant
Ms Samantha Leek QC (instructed by Bircham Dyson Bell) for the Defendant
Mr Stephen Brassington (instructed by Clyde & Co LLP) for the First Interested Party
Mr Andrew Hurst (instructed by Radcliffes Le Brasseur) for the Second Interested Party
Hearing dates: 8–9 May 2018
Judgment Approved
Introduction
This is the judgment of the Court, to which all of its members have contributed.
On 9 January 2011 Mrs Kathleen Parkinson died at the Accident and Emergency (“A&E”) Department of Darent Valley Hospital, Dartford. She was born on 11 October 1919 and was 91 years old. Her son, Gerard Parkinson, is the Claimant in the present proceedings.
The Defendant is the Senior Coroner for Kent, who conducted an inquest into the death of Mrs Parkinson. The inquest took place from 9 to 27 May 2016. On 14 July 2016 the Defendant (hereafter referred to as “the Senior Coroner”) delivered his findings in open court.
On 31 August 2016 the Senior Coroner issued a Record of Inquest. This included additional words in Box 3:
“… On arrival in A&E she was assessed and found to be dying. Her son attempted to perform mouth to mouth resus, although advised against this by the A&E staff. She deteriorated rapidly and died soon after arriving.”
The Interested Parties are, first, Dartford and Gravesham NHS Trust, which is responsible for the hospital; and, secondly, Dr Sameer Hijazi, who was the middle-grade doctor in charge of the A&E Department on the morning in question.
Permission to bring this claim for judicial review was granted on the papers by Mostyn J.
The findings made by the Senior Coroner
In a document headed ‘Conclusion – 14 July 2016 – Gravesend Coroner's Court’ the Senior Coroner set out his findings after the inquest. He first set out his summary of the evidence. After doing so he set out his findings on the facts. On the balance of probabilities he found the following facts to be established.
He identified two main areas of dispute at the inquest: first, the cause of the death of Mrs Parkinson and, secondly, the diagnosis and treatment of her while she was at the hospital.
Dealing with the first of those issues, he concluded that the cause of death was “bronchopneumonia combined possibly with right lung pulmonary thrombi”, accepting in that regard the opinion of Professor Mary Sheppard (see, in particular, paras. 145–151 below).
The Senior Coroner went on to state:
“While I accept the evidence from Gerard Parkinson and his sisters that Mrs Parkinson was an active lady for her age there is clear evidence both from her medical history and the evidence of Dr Becker the general practitioner, that she had suffered for some time prior to her death from dementia. She was unwell on 21 December 2010 when Dr Rush attended her and treated her with antibiotics on the diagnosis of a chest infection. At a little after 5:00am on 9 January 2011 when Mrs Parkinson was taken ill and taken by ambulance to hospital she arrived in my findings sometime between 6:15am and 6:20am and was there seen by a nurse and examined as is recorded in the notes.
It was apparent to Dr Hijazi the doctor who saw Mrs Parkinson that she was in agonal breathing and given the other recorded findings he formed the view that she was sadly dying. It is clear that Gerard Parkinson did not accept this and he wanted his mother treated, and when that had been declined by Dr Hijazi I confirm that Mr Parkinson had become extremely angry and I am satisfied that he did make threats towards the doctor and was obstructive. I also accept from the evidence of Dr Hijazi that he was extremely concerned and considered security to deal with the situation. I find that as a result of the way the doctor was treated by Mr Parkinson this did result in him not being able to carry out a full examination of Mrs Parkinson, which given the evidence I have considered, I consider to be understandable. It is right to say that Mrs Parkinson was provided with intravenous fluid, antibiotics and gelofusine. The evidence of Dr Hijazi is supported and I accept by the evidence of Alison MacKay, the agency nurse who was on duty and Sister Taylor.”
Turning to the second issue which he had identified, the diagnosis and treatment of Mrs Parkinson, the Senior Coroner stated as follows:
“Dealing with the diagnosis and treatment of Mrs Parkinson I consider that the treatment provided by Dr Hijazi was appropriate given the limited time between Mrs Parkinson's arrival at the hospital and her subsequent unfortunate death. While tests and scans could have been conducted, from a practical point of view there would not have been sufficient time for this to be carried out and completed and treatment provided prior to her death to realistically have affected the outcome.
It was in my view perfectly reasonable for Dr Hijazi to have concluded that with her agonal breathing and the results of the examination and tests available to him … Mrs Parkinson was in the course of dying. Despite this he did not provide the treatment that I have already outlined I do not accept that there was any failure to diagnose and treat Mrs Parkinson given the circumstances to which I have referred that the doctor encountered when he attempted to examine Mrs Parkinson.”
The Senior Coroner then turned to the submissions which had been made on behalf of the family, the Trust and Dr Hijazi. He said:
“… Prior to the start of the inquest I indicated I did not accept that this was an inquest that should be heard pursuant to Article 2 of the European Convention on Human Rights, but that I would keep this under review during the course of the hearing. I confirm this I did. I have considered the family's submission in this respect but I remain of the view that this inquest should not have been conducted on Article 2.”
The Senior Coroner then considered whether he should make a finding of unlawful killing on the ground that there had been gross negligence manslaughter. He directed himself as to recent authority on that subject and said as follows:
“Whilst I accept there was obviously a duty of care owed to the deceased I do not accept that this has been breached or made a material contribution to the death and certainly was not so serious that it can be categorised in so far as gross negligence.
On the evidence I do not accept that there is any evidence that Mrs Parkinson was neglected in the treatment and the care she was provided with at the Darent Valley Hospital by Dr Hijazi or other members of the staff.”
Further, the Senior Coroner concluded that there was no evidence to consider justifying a conclusion that the death was due to an accident.
He ended in this way:
“On the evidence that I have read and heard, I have come to the conclusion that the death of Kathleen Parkinson was due to natural causes, and I am satisfied that any additional treatment that could have been provided to her in the short time she was at Darent Valley Hospital, would have been ineffective given the advanced stage of dying which she was at the time of her arrival at the hospital on 9 January 2011. I have considered the submissions pursuant to paragraph 7 schedule 5 of the Coroners' Justice Act 2009, I do not consider any report is necessary from me. May I finally express my sympathy to the family.”
The Claimant's Grounds of Challenge
The Claimant advances the following five grounds of challenge:
(1) The Senior Coroner's finding that the enhanced investigative duty under Article 2 did not arise in this case can only have been based upon a misinterpretation of the applicable law and in breach of the Claimant's Convention rights.
(2) The Senior Coroner's finding regarding the medical cause of death was irrational.
(3) The Senior Coroner's use of a short form Conclusion to find that Mrs Parkinson died from “natural causes” did not constitute a sufficient discharge of his duties under the Coroners and Justice Act 2009 (“ CJA”), under subordinate legislation and at common law; and/or was irrational.
(4) The Senior Coroner's finding that the Claimant's conduct obstructed the care which would otherwise have been provided by Dr Hijazi to Mrs Parkinson was irrational.
(5) The Senior Coroner's failure to make a Prevention of Future Death Report can only have arisen from a misunderstanding of the nature of his duty to do so under the CJA.
The Claimant asks that the Record of Inquest should be quashed by this Court and that a fresh inquest should be ordered; alternatively, that this Court should use its own powers to remedy the defects in the Record of Inquest; and further that the Senior Coroner should be ordered to make a Prevention of Future Death Report.
Material Legislation
Section 5 of the CJA, so far as material, provides:
“(1) The purpose of an investigation under this Part into a person's death is to ascertain –
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) …
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 …, the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the senior coroner...
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