The Queen (on the application of Mrs Gabriele Shaw) v (1) HM Coroner and (2) Assistant Deputy Coroner for Leicester City and South Leicestershire University Hospitals of Leicester Nhs Trust, Drs Kovac, West, Jilaihawi, Williams, Chin, Professor Spyt (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett |
| Judgment Date | 27 February 2013 |
| Neutral Citation | [2013] EWHC 386 (Admin) |
| Docket Number | CO/3696/2011,Case No: CO/3696/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 February 2013 |
[2013] EWHC 386 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Burnett
His Honour Judge Peter Thornton QC, Chief Coroner
Case No: CO/3696/2011
and
The Claimant in person
Andrew Sharland (instructed by Leicester City Council) for the Defendants
David Pittaway QC (instructed by Browne Jacobson LLP) for the Trust
Anthony Haycroft (instructed by Berrymans Lace Mawer) for the Interested Parties
Hearing dates: 21 – 22 January 2013
Introduction
William Ewan died shortly after 12.00 on 26 September 2007 at Glenfield Hospital, Leicester. He was 86 years old. Earlier in 2007 Mr Ewan had been diagnosed with a defective heart valve. He suffered from aortic valve stenosis. That is a progressive disease which if left untreated leads to death. Treatment may be by open heart surgery but that carries risks, particularly for the elderly. An alternative treatment was undertaken in Mr Ewan's case. It was relatively new in 2007. It is known as TAVI (an acronym for trans aortic valve implantation). The procedure involves placing a working artificial valve within the defective valve. The new valve is introduced via a catheter into the femoral artery.
Glenfield Hospital was a site at which the new procedure was subject to a trial in early 2007. Although some time was taken at pre-inquest reviews in exploring whether Mr Ewan was part of the trial, it became clear that he was not.
Mr Ewan was a resident of Cheshire. His cardiologist, Dr Fitzpatrick, referred him to Glenfield. He was seen by Dr Kovac on 12 June 2007 and then for an angiogram on 28 June 2007. On 25 September 2007 Mr Ewan was admitted for the TAVI procedure, which took place the following morning. The procedure was performed under general anaesthetic. Shortly after the new valve had been introduced into the defective heart valve, Mr Ewan began to bleed from his aorta. The bleeding was visible on echo cardiogram. Immediate efforts to deal with the problem were unsuccessful. It was therefore decided to open Mr Ewan's chest to determine the source of bleeding and to stop it. The evidence heard at the inquest suggested that the blood flow was arrested, the chest was closed, drains were inserted and Mr Ewan was transferred to the cardiac intensive care unit. Very shortly after he arrived there, he died.
An inquest into Mr Ewan's death was held between 4 and 21 January 2011 before Nigel Godsmark QC, sitting as an assistant deputy coroner for Leicester City and South Leicestershire, together with a jury. The assistant deputy coroner summed up on 20 January. The jury were invited to consider a series of nearly 50 questions relating to the circumstances of the death. They answered those questions thus providing a narrative verdict. Those questions included who the diseased was, when and where he died. A series of questions dealt with Mr Ewan's underlying condition and his dealings with his cardiologist in Cheshire. Further questions dealt with Mr Ewan's dealings with Dr Kovac at Glenfield Hospital, and then his dealings with Dr Jilaihawi. The questions covered detail about the nature of the information given to Mr Ewan and, in particular, the issue of consent. Further questions dealt with what occurred at the operation and the circumstances giving rise to the bleeding and attempts to stop it. The jury were unable to determine what caused the damage to the aorta which resulted in bleeding. The jury concluded that the medical cause of death was:
"I a Heart failure following cardiac tamponade complicating percutaneous aortic valve replacement.
II Coronary atherosclerosis"
The jury's overall conclusion was that Mr Ewan's death was the "unintended outcome of a therapeutic medical procedure". They concluded that he was suitable for the TAVI procedure, that he was aware of the nature of the procedure and gave his consent.
These Proceedings
The Claimant in these proceedings, Gabriele Shaw, is a daughter of William Ewan. She is a barrister by qualification but does not practice. She has acted in person throughout the proceedings. By her claim for judicial review, she seeks to quash the inquisition on a number of grounds and secure an order for a fresh inquest. In the course of her submissions she was at pains to explain that the court should understand the nature of her concerns whilst forgiving her if she did not pin them precisely to public law concepts. Mrs Shaw confirmed that the skeleton argument served in support of the claim articulated the substance of her concerns. The original 'grounds' contained nothing of substance. Lengthy amended grounds were served in October 2011. Mrs Shaw also responded at length to the pleadings served by the Defendants and interested parties. The nature of her complaint concerning the inquest itself and events leading to it might be summarised under the following headings:
1. Delay in the conduct of the inquest;
2. The unlawful appointment of Mr Godsmark QC;
3. The unlawful post-mortem examination;
4. Bias on the basis that the assistant deputy coroner should have recused himself because of his friendship with Peter Reading, a former Chief Executive Officer of the NHS Trust of which the Glenfield Hospital forms part;
5. The failure to adduce evidence and documents relating to the approval of the trial at Glenfield Hospital of the TAVI procedure, and in particular documents emanating from the Ethics Committee;
6. The inquest was defective because the jury should have concluded that Mr Ewan was not fit for the TAVI procedure at all; a witness called by the coroner, namely Dr Mullen, lacked independence. His evidence on this point was questionable and the jury's conclusion, namely that Mr Ewan was a suitable candidate for the TAVI procedure was flawed;
7. The coroner should have read the evidence of Dr Tapp, a pathologist instructed on behalf of the family because his evidence was different from that of Dr Bouch, the pathologist instructed by the Coroner. Dr Bouch lacked independence;
8. The coroner should have called Ms Durbridge who was responsible on behalf of the Trust for implementing recommendations arising from an independent report commissioned by the Trust ("the Niche Report") with a view to making a report under rule 43 of the Coroners Rules 1984 ["the 1984 Rules"];
9. In overall terms, there was an inadequate investigation into the death of Mr Ewan both in domestic law terms and under article 2 of the European Convention on Human Rights (although this was couched in terms that the jury/assistant deputy coroner failed to take account of relevant matters and took account of irrelevant factors);
10. The coroner failed to direct the jury correctly on the question of consent but in any event no reasonable jury could have come to the conclusions it did on consent on the basis of the evidence available.
11. Unlawful killing and "neglect" should have been left to the jury as possible verdicts.
12. Mrs Mason, the coroner for Leicester City and South Leicestershire, should have provided the Claimant with information relating to other deaths at Glenfield Hospital of patients who had undergone the TAVI procedure.
No oral submissions were developed in respect of these last two points but they appear in the written material provided by the Claimant. I note that the last point is directed to requests that long post-dated the inquest.
There was multiple representation at the inquest. The Claimant had instructed Messrs Leigh Day to represent her in connection with the inquest. Originally, her leading counsel was Robert Francis QC, who appeared at a number of pre-inquest reviews. He was succeeded by Neil Garnham QC, who appeared at the final pre-inquest review on 17 December 2010 and throughout the inquest itself. The manufacturers of the valve used in the procedure were represented by Dr Anthony Barton. David Pittaway QC appeared on behalf of the Trust at the inquest. The doctors involved in Mr Ewan's care at Glenfield Hospital were separately represented at the inquest. In these judicial review proceedings, Mrs Mason, the coroner for Leicester City and South Leicestershire and the assistant deputy coroner who conducted the inquest are represented by Andrew Sharland. Mr Pittaway QC continues to represent the Trust. Anthony Haycroft represents a number of doctors who had given evidence at the inquest. They are Dr Kevin West, consultant anaesthetist, Dr Hassan Jilaihawi, clinical fellow and specialist registrar in cardiology, and Dr Derek Chin.
The nature of the Inquest
The inquest into the death of Mr Ewan was conducted as an "article 2" inquest. That is a reference to the procedural obligation under article 2 of the European Convention on Human Rights. An article 2 inquest stands, to some extent, in contra-distinction to an inquest conducted in accordance with the decision of the Court of Appeal in R v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1, without an eye to the procedural obligation. It is worth repeating observations of judges at the highest level that the difference between an article 2 inquest and a Jamieson inquest centres on the nature of the verdict. In R (Middleton) v West Somerset Coroner and another [2004] 2 AC 182 the House of Lords held that for the...
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