Kasperowicz, R (on the application of) v HM Coroner for Plymouth [2005] EWCA Civ 44

Case No C1/2005/0031[2005] EWCA Civ 44
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)
Venue Royal Courts of JusticeDate Monday, 10th January 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
LORD JUSTICE SEDLEY
THE QUEEN ON THE APPLICATION OF KASPEROWICZ
Applicant/Claimant
-v-
HM CORONER FOR PLYMOUTH
Respondent/Defendant
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR A AND MRS A KASPEROWICZ appeared In Person
MR P MATTHEWS (instructed by HM Coroner, Plymouth) appeared on behalf of the Respondent
J U D G M E N T
Between
Kasperowicz, R (on the application of)AppellantHM Coroner for PlymouthRespondent

LORD JUSTICE SEDLEY:

[1]This is a renewed application for permission to appeal against the refusal by Gray J of an injunction to restrain the Deputy Coroner for Plymouth and South West Devon from proceeding with a post-mortem examination of the body of Adela Kasperowicz. We have seen no originating process, but I will assume that the claim is for judicial review of the decision to conduct a post-mortem.[2]Adela Kasperowicz was the grandmother of the applicant Andrzej Kasperowicz. During 2004, although for more than three years she had been chairbound by a stroke, she had come to live with the applicant and his mother in Plymouth. She was 88 years old. She became ill and was hospitalised between 1st and 6th December 2004, but was then well enough to be discharged home, although by no means a fit person.[3]At home, on 30th December, she developed respiratory difficulties and, although an ambulance was immediately called, was either dead on arrival at hospital or died very soon after admission. The doctor who certified her death was unable or unwilling to certify the medical cause of death.[4]For reasons which are entirely understandable, the applicant and his mother, who has also addressed us today, feel that to conduct an autopsy on this old lady's body would be an act of insult, at least if there is no clearly established need for it. It will also, it is evident, be directly contrary to Mrs Kasperowicz's own beliefs and her own expressed wishes during her lifetime.[5]The coroner, however, is bound to follow the law and so are we. The question then is what the law requires and what the law permits. It starts with section 22(1) of the Births and Deaths Registration Act 1953, which provides:
"In the case of the death of any person who has been attended during his last illness by a registered medical practitioner, that practitioner shall sign a certificate in the prescribed form stating to the best of his knowledge and belief the cause of death and shall forthwith deliver that certificate to the registrar."
[6]It follows, as it must follow in any well-ordered society, that, where no doctor who has attended a patient is in a position to certify the cause of death from first-hand knowledge, the cause of death must be independently ascertained. This does not have to do with trying to find a sinister explanation of a person's death: it is simply so that a comprehensive record, principally for statistical purposes, can be maintained of the factors affecting mortality.[7]To step in at a point where no attending practitioner's certificate is available is the coroner's role. What the coroner wrote to the Administrative Court in the present case on 5th January 2005 was this:
"I was thus presented with a deceased person who had not seen a Medical Practitioner for some 25 days, who had suffered a sudden death of an unknown cause. No doctor was in a position to issue me with a medical certificate of cause of death."
[8]The primary function of the coroner in such situations is to hold an inquest in cases of what the Coroner's Act 1953-section 8(1)(b) calls "Cases where there is reasonable cause to suspect that the deceased has died a sudden death of which the cause is unknown". It is the absence of a death certificate signed by the attending medical practitioner which typically produces this situation.[9]Mr Kasperowicz has submitted to us today that this is not such a death. It was not sudden, he says, and he and his mother know the cause and have told the authorities time and again what the cause was. It was, he says, the pneumonia and sepsis from which the grandmother had suffered until her discharge from hospital and thereafter as well, because she never fully recovered from it.[10]This, I am afraid, misapprehends the purpose of the section. The reason why the word "sudden" is included in it is obscure, but the aim is clear enough. It is to ensure a proper ascertainment of the cause of every uncertified death. To the present moment, the death of Mrs Kasperowicz remains in this class.[11]To this end, section 19 of the Coroner's Act permits the coroner to order a post-mortem with a view to establishing whether an inquest is necessary. In many cases, of which this is very likely to be one, the post-mortem provides the answer which the medical practitioner's death certificate would have provided. This enables the coroner, under section 19(3), to register the cause of death under his own hand. The coroner in this case has accordingly directed a post-mortem examination. The only legal alternative would have been to proceed directly to an inquest with the inevitability of a post-mortem as a source of the evidence at the inquest.[12]It seems to me that to this point, at least, there can be, for reasons I have given, no question of the court halting or interrupting the process. It is a process required by law and, insofar as the coroner has exercised a judgment in requiring a post-mortem, he was plainly entitled to do so.[13]What is not spelt out by law is how invasive a post-mortem examination needs to be. Sometimes, no doubt, there is no alternative to a complete dissection, but there must be many cases where the examining doctor can be satisfied of the cause of death, by, for example, consulting the deceased's medical records, including those recording the circumstances of her death, by considering such other evidence as is available from those who were present at the time of death as to exactly what happened, and by making, if not a superficial examination of the cadaver, then at least an examination which does not involve a major section of it.[14]We are not in a position, I think, to say whether MRI scanning has a viable role in the present case, but no doubt, subject to the constraints of section 22, it deserves consideration insofar as it may be offered to the coroner as an alternative. With or without MRI scanning, the only essential is that the coroner be in a position to complete the prescribed inquisition form, form 22, annexed to the rules, including, unless circumstances make it impossible, his finding as to the "injury or disease causing death". It does not seem to me at present, although we have not heard full argument, to follow that every line of the draft post-mortem form prescribed by Rule 10 and Schedule 4 of the rules must be completed in every case. What it is necessary and appropriate to complete must, I would have thought, be case-dependent.[15]If, in this case or indeed any other case, a limited post-mortem can properly be relied upon to answer the statutory question, and if to do more would wound the feelings of the surviving family, I can for my part see no legal inhibition on limiting the post-mortem examination accordingly. I do not think that this requires a deployment of the "special examination" powers in section 20: these at first blush seem to me to be required for additional procedures. It is simply that a post-mortem examination is not so defined in the statute as to require it in every case to be an invasive procedure. The choice, it seems to me, is a matter of common decency and good practice. It is not a matter of law.[16]Having heard Mr Matthews, who has helpfully addressed us on behalf of the coroner, I have no doubt that whatever the law requires to be done will be done by the coroner with the maximum possible regard to the family's concerns and to the deceased's own wishes. As the coroner already knows, but as Mr Kasperowicz perhaps needs to be reassured, the purpose of the procedure is not to question the care devoted by him and his mother to Mrs Kasperowicz in her last days. It is simply to furnish a reliable record of the medical cause of her death.[17]I would therefore, for my part, refuse permission to appeal on the simple ground that we are looking here not at a legal issue but at a humanitarian issue. I do not doubt the capacity of the coroner service to respond to these humanitarian concerns without departing from its legal obligations.

LORD JUSTICE CLARKE: I have the very greatest sympathy for Mr Kasperowicz and his mother. Both have addressed us orally in understandably strong terms. The deceased, Mr Kasperowicz's grandmother, had expressed strong views based on her Catholic faith that her body, in the words of her grandson's translation, should be put into her grave intact, not violated by anyone. I entirely understand the strength of that view.

[19]I also understand the family's concern that any post-mortem should be by way of MRI scan, which would be less invasive than the kind of more invasive procedure which is otherwise almost bound to take place. However, the problem is that clearly stated by Sedley LJ. This was, to my mind, plainly a case in which there was reasonable cause to suspect that the deceased had died a sudden death of which the cause was unknown within the meaning of section 8(1)(b) of the Coroner's Act 1988.[20]I agree with Sedley LJ that the death was sudden for the reasons given by him. Further, it was a death of which the cause was unknown. The coroner could not be satisfied that the cause was known. No doctor who saw the deceased has been willing to say so. In particular Dr Copper, who last saw her on 6th December, was not willing to do so. No doctor saw her after that until a doctor saw her at the hospital and certified that she was dead. That doctor was not able and certainly not willing to certificate the cause of death. The coroner was entitled, if not bound, to conclude that medical evidence was required in order to enable him to determine the cause of death which it was his duty to do. In all these circumstances, I entirely agree with Sedley LJ that the coroner was entitled to direct a post-mortem under section 19 of the Act.[21]While I fully understand the concerns of the family about an MRI scan, I can detect no sign of irrationality or unlawfulness in any decision so far made by the coroner. For the same reasons as those given by Sedley LJ, I express the fervent hope that any examination of the deceased should be as uninvasive as possible, but I can see no basis upon which a full appeal to this court can succeed. It follows that I agree that this application must be refused.[22]We will just add that, as my Lord has suggested, we will direct that a transcript of our judgment should be made at public expense and made available to the family if they wish to have it.

Order

Application for permission to appeal is refused.