The Queen v Joanne Rudling
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] EWCA Crim 741 |
| Docket Number | Case No: 201602302 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 June 2016 |
[2016] EWCA Crim 741
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
Mrs Justice Nicola Davies D.B.E
T20157506
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Popplewell
and
Mr Justice Goss
Case No: 201602302 C5
John Price Q.C. and James Wilson (instructed by the CPS) for the Appellant
Zoe Johnson Q.C. and Philip Stott (instructed by Eastwoods, London) for the Respondent
Hearing date: 26 May 2016
On 8 December 2012, one week short of his 13 th birthday, Ryan Morse died of Addison's disease, which is an autoimmune disorder with a prevalence of 10–15 cases per 100,000, and even rarer in children. In its early stages symptoms are non-specific: for example, fatigue, malaise, weakness, abdominal pain, vomiting, and weight loss, all of insidious onset. Its eventual diagnosis is often established only at the time of acute symptoms at or near a terminal stage known as adrenal crisis. The Crown's case, based upon the evidence of Professor Hughes, an endocrinologist, was that even if diagnosed at a very late stage, and at a time when the patient would be gravely ill, the condition can be stabilised and the patient restored to good health.
Ryan's death has been an unmitigated tragedy for him, his family and all who loved him. It is not surprising, therefore, that an investigation was undertaken into the circumstances in which the signs of ill health were not picked up or acted upon in such time as would have permitted treatment. That investigation led to the prosecution of Dr Joanne Rudling and Dr Lyndsey Thomas for gross negligence manslaughter at a trial in the Crown Court at Cardiff before Nicola Davies J and a jury, which commenced on 3 May 2016. On Monday 16 May, at the close of the prosecution case, the Judge ruled that there was no case for either doctor to answer in relation to the allegation of manslaughter, although a similar submission in relation to a further count alleging doing an act in relation to the medical record tending and intended to pervert the course of justice was rejected.
The Crown (represented by Mr John Price Q.C.) accepted the Judge's decision in relation to Dr Thomas and the prosecution against her thus came to an end. In relation to Dr Rudling, however, the Crown intimated its intention to appeal the Judge's decision pursuant to s. 58 of the Criminal Justice Act 2003 ("the 2003 Act"), providing the necessary undertaking that she would be acquitted if leave to appeal to the Court of Appeal was not obtained or the appeal was abandoned before its determination: see s. 58(9) of the 2003 Act. The Judge did not grant leave but ordered expedition and retained the jury to continue the trial when it was possible to do so.
In the circumstances, the Registrar referred the application to the full court on the basis that if leave is granted, the appeal will be heard. The work of this court was thus reorganised so that it was possible for the application to be heard on 25 May. In the event, we refused leave (which has the effect of bringing the manslaughter trial to an end) but, having regard to the important issues involved, reserved our reasons for doing so. These we now provide.
The Facts
Prior to the summer of 2012, Ryan had an unremarkable medical history. He was a fit, healthy and very active child. In July 2012, however, he first began to reveal symptoms such that, on 20 July 2012, his mother, Carol Morse, took him to the Abernant Surgery in Abertillery, South Wales. Neither then, nor thereafter, was the true cause of the admittedly non-specific symptoms which Ryan exhibited, or the progressive decline in his health over the following five months, recognised or diagnosed, although there were five further relevant medical consultations involving three other doctors. It is a matter of fact that the diagnosis of Addison's disease, and the cause of death as Addison's disease crisis, were only identified after his death; but it is of critical importance, at this early stage of the recitation of facts, to underline that it was never alleged either that the Respondent to this appeal, Dr Rudling, or any of the other doctors who saw Ryan was at fault in having failed to diagnose Addison's disease, not least because of its rarity and the non-specific features of its early symptoms.
The prosecution of the two doctors turned upon telephone calls which each had with Ryan's mother on 7 December 2012, but to provide the context a little more of the medical history is necessary. We take it from the ruling of Nicola Davies J which is in these terms:
"In a school trip on 18 th July2012, Ryan complained of tiredness. He was unable to take part in the activities and, when seen at the end of the day, he appeared confused and disorientated. He was first seen by a doctor at the surgery on 20 th July 2012; the doctor diagnosed a viral infection. The condition continued throughout the summer. It was the evidence of Ryan's mother that in addition to tiredness, aching of legs, sickness every two or three weeks, Ryan's skin was showing a darkened pigmentation which was increasing. On 28 th September, Ryan was seen by another doctor at the practice for an unrelated condition in respect of his hands. In November 2012, when Ryan was seen by Dr Rudling, she noted on 7 th November that since the virus in July, Ryan had been tired and had lost weight. He had no energy and was very thin. Dr Rudling ordered full blood tests. Ryan and his mother returned on 21 st November for the results of the blood test; in the medical records the doctor noted 'Blood suggests a virus, is a bit better. Continue repeat bloods in 3 weeks, review, see again if worsens or not resolved'. The blood tests were unremarkable, save for a marginally low sodium result. …"
No criticism was made of Dr Rudling in respect of the blood tests she required to be carried out, nor of her reaction to them on 21 November. In respect of the two consultations, the Crown's sole criticism was that Dr Rudling did not weigh Ryan, but it was not suggested that such a failure would constitute gross negligence or was in any way causative of his death.
By December 2012, Ryan had taken part in a phased return to school but Mrs Morse had been called to collect him on 6 December on the basis that he was unwell; he complained of feeling ill, shaking and twice having been sick. He was cold then hot; he slept and then after a disturbed night, his mother described him as 'talking rubbish'. He had diarrhoea and had soiled himself. He had difficulty bearing his own weight, felt dizzy with weak legs, and his head was aching. Mrs Morse thought that the problem was a sickness bug which was going round the school. She phoned the surgery and, as a result of what she said to the receptionist, a note was made for the doctor to contact her: 'please can you ring/advise re vomiting bug and temperature'.
Dr Thomas accessed the electronic records and read the notes of the two previous consultations. She was told that the receptionist had asked Mrs Morse to bring the boy to the surgery but had been told that she did not want to bring him out. She phoned Mrs Morse at about 8.45 am. Mrs Morse recounted the history and said that she could not bring him to the surgery. She was advised to get some dissolvable paracetamol and to try to bring Ryan to the surgery at lunchtime; she repeated that she would be unable to do so as Ryan could not walk and was complaining about his legs. The note made of the conversation was as follows:
"Had a chat to parent, mum wanted tel advice. Unwell since yesterday, high temp and now diarrhoea +++; soiled himself up to his waist and didn't realise. Delerious (sic) but no vomiting, no rash, no photophobia, no sore throat, but not drinking. no cough, no earache. No abdo[minal] pain, won't take calpol doesn't like it. Need to get temp down so advised soluble paracetemol as wont swallow normal tabs either. clear fluids little sips and often. If delirium doesn't settle within 2 hrs after paracetemol then needs to be seen although mum doesn't think she could get him up. She will phone us if further concerns."
Mrs Morse accepted that the conversation ended with Dr Thomas saying 'You know where we are if you need us', which she understood meant a further telephone conversation or a visit.
Following this call, Ryan improved somewhat. He took soluble paracetamol, his temperature came down and (in Mrs Morse's words) he was 'more himself' and 'perked up a little'. She did not speak again to the surgery until later that afternoon (although he had been sick at lunchtime). At some time after 4.00 pm, he had another attack of diarrhoea and his mother cleaned him up; she then noticed that his genitalia were black. Having spoken to her husband, she again phoned the surgery. It was then that she spoke to Dr Rudling. Reverting to the summary provided by Nicola Davies J (based solely on the Crown's evidence):
"She rang at 17.45, asked to speak to a doctor, and on her account told the receptionist that her son had soiled himself and when she cleaned him up she had seen his penis and genitals were black. The receptionist put her through to Dr Rudling within a matter of seconds. On Mrs Morse's account she told the doctor that Ryan had been unwell all day; he had diarrhoea, he had been sick once at lunchtime, he had soiled himself and when she cleaned him up she saw that his penis and genitals were black. Mrs Morse said that she asked the...
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