Sreedharan, R (on the application of) v HM Coroner for the County of Greater Manchester & Ors [2013] EWCA Civ 181

Case No C1/2012/1346[2013] EWCA Civ 181
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Divisional Court
Mr Justice Foskett and HHJ Thornton QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/03/2013
Before
LORD DYSON, THE MASTER OF THE ROLLSLORD JUSTICE MAURICE KAYLADY JUSTICE HALLETT
Between
The Queen on the application of SreedharanAppellantHM Coroner for the County of Greater Manchester and othersRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mary O'Rourke QC and Sophie Cartwright (instructed by Ryan Solicitors) for theAppellant.Samantha Leek QC (instructed by Withers LLP) for RespondentNicholas Brown (instructed by Hodge Jones and Allen LLP) for Interested Party.Hearing Hearing dates : Tuesday 5th February 2013 and Wednesday 6 th February 2013
JudgmentLady Justice Hallett :Introduction
[1]The Appellant was the general practitioner (“GP”) responsible for the care of thirty year old Mr David Donohue. On 21 December 2002 Mr Donohue took an overdose of drugs prescribed by the Appellant and died. Nigel Meadows HM Coroner for the County of Greater Manchester (Manchester City District), sitting with a jury, held an inquest into his death in the summer of 2011. The jury returned a verdict of unlawful killing.[2]This is an appeal from the Divisional Court which refused the Appellant permission to review judicially the conduct of that inquest. The original grounds for judicial review were eight fold: that the Coroner strayed beyond the legitimate scope of the inquest, displayed bias towards the Appellant and allowed a disproportionate focus on the Appellant’s conduct and credibility. Further, it was argued he failed to carry out an adequate inquiry into the conduct of the emergency services who attended Mr Donohue, unlawfully left to the jury the verdict of unlawful killing, failed to leave a verdict of suicide and erred in his directions to the jury on the issues of causation and novus actus interveniens.[3]By the time the application for Judicial Review reached the Divisional Court the issues had narrowed and the Divisional Court was led to believe that the only real ground being pursued was “scope”. I gave permission to appeal the Divisional Court’s judgment on that ground alone. It was not clear to me what had happened to the ground in relation to the failure to leave a suicide verdict and I directed that it could be renewed at the appeal hearing. Ms O’Rourke QC for the Appellant has renewed that ground plus others.

Factual Background

[4]As Mr Donohue’s GP the Appellant knew Mr Donohue well. He attended on him for years, often in the presence of his mother Edith Kowalski. Mr Donohue had a history of heroin abuse and mental health problems and the general prognosis for him was not good. By 1997 he had an established heroin dependency, and history of alcohol abuse. In February 1997, the Appellant first prescribed him the drug Heminevrin (chlormethiazole), a sedative with a range of uses, including countering the effects of withdrawal from alcohol abuse. It can be highly toxic taken in combination with alcohol.[5]The prescriptions continued despite the fact Mr Donohue overdosed twice on Heminevrin and other drugs, taken with alcohol. He knew he should not combine the two. Mr Donohue attempted suicide (by hanging) in February 2001. There is then a gap in the prescription of Heminevrin until 2002. By 2002 the potentially lethal interaction between Heminevrin and alcohol was well recognised and it was licensed mainly for use in connection with detoxification, on a short term basis, in a hospital setting.[6]From September 2002 the deceased received a number of repeat prescriptions of drugs including Dihydrocodeine and, on 21 November 2002, he took an overdose of Dihydrocodeine combined with alcohol. Thereafter his medical notes record advice to prescribe no more than two weeks’ medication at a time because of the history of self harming.[7]On 16 December 2002, police were called to Mr Donohue’s home where he was behaving bizarrely. He had received some bad news about contact with his son who was in local authority care. He said he would see his son on Christmas Day and then kill himself. A doctor (not this Appellant), who examined him after his arrest, noted that he was still abusing alcohol on a daily basis.[8]On 19 December 2002, Mrs Kowalski telephoned the Appellant and requested a prescription of Heminevrin for her son. She claimed in a written statement that she had told the Appellant that her son needed the drug because he ‘wanted to come off alcohol’. The Appellant maintained that she put him under considerable pressure to prescribe something to help her son to sleep. He insisted she told him that Mr Donohue had ceased drinking and assured him she would supervise its use. Without checking his recent history and without seeing the patient, the Appellant prescribed sixty tablets of Heminevrin. Mr Donohue senior picked up the prescription and handed them to Mrs Kowalski to supervise their administration.[9]On 21 December 2002, according to his parents, Mr Donohue was in good spirits and gave no indication of wanting to end his life. He spent a pleasant day with his father preparing for Christmas. At 16.30 he went to his mother’s house and asked for some tablets. She told him where they were and to take just two. Unbeknown to her he took the bottle with him. He left but returned an hour or so later (the timings are not precise). He shouted upstairs “I have taken all the tablets Mum”. She rushed downstairs and found him lying on the sofa. He was half conscious and “dopey”. When she checked his pulse, he said:
“Help me Mam will you?”
He had taken all of the tablets remaining in the bottle which would have been approximately fifty two. Mrs Kowalski believed her son had made a serious attempt on his life. She called an ambulance at 17.56. It arrived at 18.03. What happened thereafter was a matter of dispute between the members of the emergency services who attended and the family. The family alleged mistreatment by the ambulance crew who in turn alleged unprovoked violence on the part of Mr Donohue. The family also alleged mistreatment on the part of the police officers who initially refused to take Mr Donohue to hospital. They claimed this was because of his aggressive behaviour. He was placed in a police van at 18.23 arriving at hospital at 18.29.[10]Hospital staff reached the van at 18.36. Despite efforts to resuscitate him, Mr Donohue was declared dead at 19.00. Post mortem examinations gave the cause of death as chlormethiazole and alcohol toxicity. The experts agreed his chances of survival would have been good had he received hospital treatment before the onset of cardiac arrest.[11]Substantial investigations took place but no criminal proceedings were brought. The first inquest was opened and evidence was called including from the Appellant. On the basis of what he had heard, the Coroner decided to adjourn and refer the Appellant’s conduct to the Crown Prosecution Service (“CPS”) for a decision on whether to prosecute the Appellant for manslaughter. They declined to prosecute and the inquest resumed. The Coroner set a timetable of 15 days to complete the proceedings starting on 13 June 2011. The jury returned 35 days later with their verdict of unlawful killing, having been allowed to consider verdicts of unlawful killing (in relation to the prescribing of Heminevrin), accidental death contributed to by neglect (by the ambulance staff), accidental death and an open verdict. They had not been allowed to consider the verdict of suicide.[12]The inquiry was very thorough. There were several designated properly interested persons (“PIP”) including the Appellant, all of whom were represented by counsel. The jury heard statements read from Mr Donohue’s parents both of whom had died before the inquest, and evidence from eye witnesses, ambulance staff and police officers. The Coroner also received evidence from a member of staff and a colleague from the Appellant’s surgery, a witness from the Community Alcohol Treatment programme and members of staff from the Primary Care Trust (“PCT”) responsible for supervision of the Appellant's practice.[13]Pathologists and forensic toxicologists gave evidence as to the cause of death and the properties of Heminevrin. Evidence on GP practice was given by Dr Grenville, and by a Dr Young instructed by the Appellant. Dr Grenville was highly critical of the Appellant’s prescribing practices not only in relation to Heminevrin but also in relation to Dihydrocodeine. He opined that it was inappropriate to prescribe large quantities of a potentially lethal drug to any patient without seeing them and that, given his history, it was inappropriate to prescribe the drug to Mr Donohue at all. It was his view that the Appellant’s conduct fell sufficiently far below the standard of a reasonably competent medical practitioner so as to amount to gross negligence. When pressed, Dr Young did not disagree with Dr Grenville on many important aspects of his evidence, including whether or not it was appropriate to prescribe Heminevrin to Mr Donohue in these circumstances.[14]The Appellant himself was in the witness box on several days towards the beginning and end of proceedings. Ms O’Rourke claimed the Coroner called and recalled the Appellant at least three times. Those representing the Coroner and the deceased’s family explained that, in truth, he was recalled only once. His evidence was interrupted at the beginning of the inquest by the ill health of his wife and had to be adjourned. Thereafter, he was recalled, at the conclusion of the inquest, to be asked further questions on specific evidential issues which had emerged. It was accepted, however, that his evidence was spread over several days.[15]Given the criticisms made by Ms O’Rourke it is necessary to rehearse in a little more detail how the Appellant’s account developed and why it became necessary to call for further evidence and to recall him. In 2004 he made a statement to the police in which he described his conversation with Mrs Kowalski on 19 December 2002 and asserted that he had prescribed what would amount to a detoxification regime of Heminevrin i.e. several tablets a day over several days. In that statement and at the first inquest in 2007 the Appellant did not mention that he had prescribed Heminevrin on the recommendation of a psychiatrist. However, he did recall prescribing Dihydrocodeine. Thereafter, his account of the dosage of Heminevrin prescribed to Mr Donohue changed extraordinarily and he added that he had only prescribed Heminevrin on the recommendation of a psychiatrist. There was no evidence of this in the medical records of Mr Donohue as supplied to the Coroner. The Appellant later changed his account again and claimed he had not prescribed Dihydrocodeine to Mr Donohue and that his previous testimony was mistaken. Further enquiries were made to establish where the records were at material times, whether they were complete, and whether the Appellant’s locum might have been responsible for issuing prescriptions to the deceased.[16]When the full GP record was produced, it revealed further possible discrepancies in the Appellant’s accounts and the prescribing of Heminevrin to Patient X. Patient X’s records were potentially relevant to the Appellant’s knowledge and understanding of the requirements for prescribing Heminevrin. Further, the Appellant had made an entry in the record, dated 2003 indicating that, some months after the death, Mrs Kowalski had telephoned him and purported to exonerate him from responsibility in the death of her son.[17]In the light of a number of inconsistencies and contradictions which had emerged, the Appellant was recalled and Mr Brown for the family robustly examined him. In effect, he accused the Appellant of lying to cover his grossly negligent behaviour.

The Law

[18]The law in relation to inquests is well trodden ground and I do not intend to rehearse the statutory provisions and principles at any great length. I have extracted the following which I consider relevant to this appeal: i. The Coroners Court is a creature of statute. Inquests are governed by the Coroners Act 1988 (‘the 1998 Act’), Coroners Rules 1984, and soon the Coroners and Justice Act 2009. Section 11 of the 1988 Act and Rules 36, 42 and 43 of the 1984 rules are particularly pertinent to this appeal. ii. Section 11 provides that the inquest shall determine who the deceased was and how, when, and where he died. Rule 36 provides that the evidence and the proceedings shall be directed solely at ascertaining the answers to those questions and forbids any expression of opinion on any other matter. Rule 42 prohibits the finding of any civil or criminal liability against a named individual. iii. It is the duty of the Coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He must ensure that the relevant facts are exposed to public scrutiny. He fails in his duty if his investigation is “superficial, slipshod or perfunctory”. But the responsibility is his. He must set the bounds of the inquiry and rule on the procedure to be followed. (R v North Humberside Coroner, ex p. Jamieson [1995] QB 1) iv. The scope of inquiry at an inquest can extend wider than is strictly required for the production of the verdict. Rule 36 should not be interpreted so as to defeat the purpose of holding an inquest. The inquiry is not, therefore, restricted to the “last link in the chain of causation”. (R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER 139). v. The incorporation of Article 2 of the ECHR into domestic law brings with it the procedural obligation to carry out an effective investigation and to ensure, so far as possible, “that the full facts are brought to light; that culpable and discreditable conduct is exposed; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons from his death may save the lives of others.” (R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653,) vi. Where Article 2 is engaged the wording of rule 36 should be interpreted so that when considering ‘how’ the deceased came by his death the Coroner or jury must decide not simply ‘by what means’ but ‘by what means and in what circumstances’ he met his death. (R (Middleton) v West Somerset Coroner 2004 AC 182) vii. There is now in practice little difference between the Jamieson and Middleton type inquest as far as inquisitorial scope is concerned. The difference is likely to come only in the verdict and the findings. (R (Smith v Oxford Assistant Deputy Coroner 2011 1 AC) viii. Rule 43 enables a Coroner at the end of the inquest to make a report to relevant parties where the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur or continue to exist in the future. This now forms part of the means by which the state discharges its Article 2 obligation. (R (Lewis) v HM Coroner for the Mid & North Division of Shropshire [2010] 1 WLR 1836). ix. An inquest is not a trial. It is an inquisitorial process designed to get at the truth. The limits on the questions that may be asked are that they must be relevant to the issues to be determined under Rule 36 and “proper”. Coronial proceedings are not subject to the usual rules applicable to civil or criminal trials. An interested party may not, therefore, have the benefit of procedural safeguards which would apply to a trial, but will have the protection of Rule 42.

General Discussion

[19]The law is easy to state but difficulties may arise in its application. The phrase “in what circumstances” appears very broad and to date the courts have avoided being overly prescriptive about precisely what comes within the ambit of ‘other factors which are relevant to the circumstances of the death’. Ms Leek QC for the Coroner suggests this is for two good reasons:(i) because of the difficulty in attempting to fetter the discretion of coroners, given the widely differing factual scenarios which come before them and(ii) because of the importance of flexibility in the prevention of future deaths.[20]Ms O’Rourke does not disagree but argues forcefully that here the Coroner has simply gone too far. She complains that the Coroner’s introduction of evidence, some of it relating to events years after Mr Donohue’s death, coupled with other evidence which at best could be described as of marginal relevance led to an inquiry which strayed far beyond its legitimate remit. It became, she insisted, in effect a criminal trial for manslaughter with the Appellant in the dock. Far too much time she insisted was spent examining the Appellant’s general character and conduct when these are rarely issues for an inquest.[21]She relied upon a short passage in Jervis on Coroners at 12-116 in which the editor states that “a person’s character and evidence of his behaviour on other occasions, may be thought relevant to the question whether he did a particular thing, the subject of the present proceedings, but in general it is not permitted to give evidence of either of these matters”. Ms O’Rourke interpreted this passage as authority for the proposition that character evidence is the exception rather than the rule in coronial proceedings. Yet, the Coroner and jury sat through 28 days of evidence, 18 days of which she described as irrelevant to the circumstances of the death because they were mostly directed at examining the Appellant’s character.[22]Ms Leek and Mr Brown for the deceased’s family placed heavy emphasis on the Coroner’s broad discretion to decide the extent of his or her inquiry. They accepted that the scope of the inquiry may have expanded during the hearings, but submitted that this is not unusual. The inquiry was led by the evidence, in part by the Appellant’s evidence in which he unexpectedly made a number of assertions designed to shift responsibility for Mr Donohue’s death. The Appellant and his advisers knew from the outset that gross negligence manslaughter on the part of the Appellant was always an issue which would require full investigation. The Coroner was under a duty to investigate how the deceased came by his death fully, fairly and fearlessly and, if necessary, report under Rule 43.[23]They rejected (as would I) Ms O’Rourke’s attempt to classify this inquest as what she called a “hybrid”, namely an inquest in which the procedural duty under Article 2 is only triggered by the involvement of state agents (here the emergency services personnel) but other non state agents (the Appellant) are swept up in the inquiry. In my view, it cannot be right to suggest, as she appeared to do, that once a coroner has embarked upon an Article 2 compliant inquest there should be less intensive scrutiny of the conduct of the non state agent than of the conduct of the state agent. It is only by examining the roles of each fully and fairly that the role of the state agent can be put into its proper perspective and the truth ascertained.[24]Here the role of the non state party was crucial to the investigation. The Appellant prescribed the drugs which killed the deceased. The circumstances in which he did so raised the real possibility there was an unlawful killing.[25]The parties were agreed that to return a verdict of unlawful killing the jury had to be sure (i.e. to the criminal standard) of both the actus reus and mens rea of gross negligence manslaughter. The actus reus consists of a breach of a duty of care owed to David Donohue which made a material contribution to his death and was so serious a breach it should be characterised as gross negligence and a crime. The mens rea would be any one of the following: i) Indifference to an obvious risk of injury to health; ii) Actual foresight of the risk coupled with determination nevertheless to run it; iii) An appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence as the jury considered justifies the conviction or iv) Inattention or failure to advert to a serious risk which went beyond “mere inadvertence” in respect of an obvious and important matter which the Appellant’s duty demanded that he address.[26]Accordingly, Mr Brown argued any evidence which tended to show that the Appellant had a guilty mind was relevant. His account on important issues had varied significantly and his credibility was very much in issue.

Specific complaints

[27]In order to assess the general complaint that the inquest, to all intents and purposes, turned into a criminal trial with the Appellant in the dock, it is necessary to consider the individual and cumulative effect of the specific complaints made by Ms O’Rourke. She claims the Coroner exceeded his jurisdiction and erred in law in admitting the following categories of evidence.

Evidence from the PCT, the GMC and Dr Koh

[28]The most glaring example of evidence which Ms O’Rourke categorises as irrelevant is the evidence of witnesses in relation to the PCT and the GMC. This evidence fell into three main categories: 1) Mr Donohue’s medical records; 2) the PCT review of the Appellant’s performance as a GP from 2004 until his retirement in 2010 and 3) the Coroner’s referral in 2007 to the GMC of allegations of gross negligence against the Appellant in relation to Mr Donohue’s death.

Medical records

[29]Enquiries having revealed that the Appellant may not have returned Mr Donohue’s medical records to the PCT, as he was duty bound to do, and that the records may not have been complete, it was thought necessary to establish when the PCT had been notified of the death and what knowledge the PCT had of the whereabouts of the records. Dr Koh, the Appellant’s successor at the surgery was called to assist on this issue. Ms O’Rourke suggested these inquiries were not only unnecessary but stretched the inquiry beyond legitimate limits.[30]To my mind, the relevance of establishing whether the medical records were reliable, accurate and in the Appellant’s possession at material times is obvious. Central to this part of the inquiry was the question of whether the Appellant was telling the truth about his dealings with the deceased and his mother and the circumstances in which he came to prescribe the fatal drug. A GP’s records are meant to be a contemporaneous record of history, examination, and action taken. They are meant to provide an examining doctor with the information he requires to do his job properly. Mr Donohue’s records, therefore, should have assisted on the question of what the Appellant knew or should have known of Mr Donohue’s medical history at the material time, what he himself recorded in Mr Donohue’s notes and what he did with them. Thus, the evidence of the records from the PCT and Dr Koh went directly to the circumstances of Mr Donohue’s death. The evidence may have exonerated the Appellant, established that he was mistaken or, possibly, that he was lying to cover his tracks. They should have thrown light on the circumstances of Mr Donohue’s death.

The PCT performance review

[31]The PCT review was said to be relevant to the Appellant’s credibility and character. After Mr Donohue’s death, concerns were expressed about the way the Appellant ran his practice. The Coroner described it in this way in the summing up:
“concerns were expressed concerning his performance and some of the aspects of the way his practice operated ….There was some involvement of a pharmacist in 2004 and it seems another practitioner raised concerns involving the diagnosis of a diabetic patient….” (Summing up 28 July 2011 page 97). The assessment led to a “remedial notice” and a requirement for improvement in “record keeping, patient reviews and medication reviews”
. The Appellant was given some computer training and satisfied the PCT that significant improvements had been made. By the time of the inquest, the PCT’s concerns seem to have been substantially allayed.[32]Mr Brown argued this evidence was clearly relevant to the inquiry because the Appellant was asked if he had won any awards and answered truthfully that he had. It was said that by asserting he had won awards and given the impression he was a reasonably competent doctor he had “put his character in”. Knowing of the PCT’s concerns about his clinical performance, Mr Brown insisted that the Appellant should not have put himself forward as an award winning doctor. Miss Leek was rather more cautious in her approach. She conceded this evidence was of “marginal relevance” at best.[33]I found Mr Brown’s argument less than persuasive. The question for the Coroner here was not whether the Appellant had “put his character in” (a concept better suited to criminal proceedings); the question was whether or not the Appellant had misled the jury as to a significant issue in the inquest. If the Appellant had done so, the Coroner was fully entitled to admit evidence which would put the record straight. However, it was not entirely obvious to me how evidence of a performance review, carried out years later which included unproven allegations as to the misdiagnosis of a diabetic patient in unrelated circumstances, could achieve that aim.[34]In the result, the evidence of the PCT review seems to have been something of an anti climax. Nothing in the performance review detracted from the fact the Appellant had won awards and none of the complaints about his performance reached the critical level of calling his clinical competence into question. Once the evidence had been admitted, no focus whatsoever was placed on the treatment of the diabetic patient. The jury may have been left wondering why the evidence about the performance review was ever placed before them. Even if this evidence was irrelevant as opposed to marginally or tangentially relevant, therefore, I was not persuaded that the admission of this evidence came close to undermining the lawfulness of the proceedings.

Referral to GMC

[35]The Coroner’s referral to the GMC of allegations of gross negligence against the Appellant, arising from Mr Donohue’s death, was said to be relevant to possible systemic failings. The Coroner had informed the GMC of what had happened in 2007 yet the PCT did not learn of the death of Mr Donohue and the alleged negligence of the Appellant until 2011. The Coroner was anxious to satisfy himself, therefore, that proper procedures were in place to ensure the supervision and regulation of practising doctors.[36]Miss Leek concedes that this evidence was of marginal relevance to the circumstances of Mr Donohue’s death. However, she argued, and I accept, it was relevant to the issue of preventing deaths in the future. It would be a matter of serious public concern if a PCT remained totally unaware of a complaint against a GP on their list that he or she had caused the death of a patient by negligent prescribing. Alternatively, it would be a matter of serious public concern in relation to preventing deaths in future, if the PCT had been made aware that such a complaint had been made and done nothing. If a doctor is accused of putting patients’ lives at risk, systems must be in place to ensure an appropriate response by the supervising and regulatory bodies. To my mind, therefore, it was within the Coroner’s discretion to decide this evidence was relevant to a possible rule 43 report. The Appellant’s Previous Prescribing to David Donohue and Patient X, his Use of Locums and his Systems for Repeat Prescribing[37]The next category to which Ms O’Rourke took exception was the prescription of drugs to the deceased and others. In essence Ms O’Rourke suggested that only evidence relating to the prescription of the fatal drug to the deceased was relevant and admissible. Accordingly, it was her contention that the Coroner should have excluded evidence of previous prescribing to the deceased, evidence from the locum doctor about his treatment of the deceased and the Appellant’s system of prescribing generally. It was said that evidence of this kind strayed beyond the “in what circumstances” test.[38]There are two answers to this complaint. First, evidence was called from the Appellant’s locum to clear up the confusion in the evidence as to who had treated Mr Donohue on which occasion. This was clearly relevant and admissible evidence. Second, as I have already indicated, the Appellant’s knowledge of Mr Donohue’s medical history, the symptoms, the drugs prescribed, how Mr Donohue had coped in the past with them were all of central relevance to the inquiry and fell squarely within ‘other factors relevant to the circumstances of the death’. I endorse the observations of the Divisional Court judgment at paragraph 18 “It was inevitable that the prescribing by the Clamant and the history of prescribing would play an important part in the inquiry. The deceased had died from a mixture of Heminevrin and alcohol. The circumstances of the deceased being prescribed Heminevrin were bound to become significant. Obvious questions come to mind. What was the history of prescription? What did the claimant know about the deceased and his past? What steps did the claimant take to protect his patient from himself, knowing about his past?...”[39]The Appellant was or should have been fully aware of Mr Donohue’s history of alcoholism, drug abuse and overdosing (with the same and other drugs), yet he repeatedly prescribed a highly toxic drug when taken in conjunction with alcohol. So toxic was the drug that at one stage he told the jury he thought two tablets with alcohol might suffice as a fatal dose. It is not surprising, therefore, that the Coroner authorised a full investigation of Mr Donohue’s prescribing history and the Appellant’s system of issuing repeat prescriptions to him. That brings me to Patient X.

Patient X

[40]At the resumed inquest, the Appellant claimed not only that he started to prescribe Heminevrin to Mr Donohue following the advice of a psychiatrist, but also that he would not have started prescribing Heminevrin to any patient unless he had been advised to do so by a specialist. If this was correct, it was highly relevant to the jury’s consideration of whether any causative breach of duty on the part of the Appellant was so bad in all the circumstances as to amount to a criminal act or omission.[41]The Appellant’s claim came after Dr Young had mistakenly suggested in his report dated October 2010 that he understood the Appellant had first prescribed Heminevrin for Mr Donohue on the advice of a psychiatrist, but before the doctor acknowledged this was a mistake. There was nothing in David Donohue’s medical records to suggest this was true.[42]Similarly, there was nothing in the repeat prescription records for Patient X, to whom he was also prescribing Heminevrin in the autumn of 2002, to suggest that this was on the advice of a specialist. On the contrary, Patient X’s records revealed that, in 1998 and 1999, the Appellant was twice advised by psychiatrists to stop prescribing Heminevrin to Patient X because he was continuing to drink alcohol. Thus, the absence of any record of specialist advice in favour of prescribing the drug to Mr Donohue and Patient X and the presence of advice not to prescribe the drug contradicted the Appellant’s assertions.[43]Further, the Appellant consistently stated in his evidence that, by February 1997, he was aware that Heminevrin should not be prescribed to a patient who was drinking alcohol and that he did not prescribe Heminevrin to David Donohue or any patient, if the patient was drinking alcohol. Patient X’s medical records demonstrated this was untrue.[44]This was an area where initially I had my doubts as to the propriety of the inquiry’s stretching into another patient’s records and repeat prescription history. However, I do now understand the relevance. The same drug was involved and Patient X’s history directly contradicted statements made by the Appellant about Mr Donohue’s death. The Appellant’s general attitude to prescribing potentially lethal drugs of this kind, his knowledge of the contra-indications and, therefore, his state of mind were important issues in the inquest.

Computer records

[45]Evidence as to the way in which computer records were kept at the Appellant’s surgery was given and he was examined on his knowledge of them. Ms O’Rourke submitted this was another step too far. I can see some force in her argument that the relevance of some of aspects of this evidence was at best marginal: for example the Appellant’s ignorance of the meaning of the words “EMIS ANON”. The Appellant thought Emis Anon was a member of staff; in fact the phrase was simply a means for an unregistered user to gain access to the computer files. However, it was undoubtedly necessary to establish how the Appellant made entries on Mr Donohue’s records, whether they were complete and how accessible they would have been to a prescribing doctor. Thus, if in some small measure, the computer evidence strayed a little from the main focus of the inquiry, in the overall context, it would have had little or no impact upon the fairness or lawfulness of the proceedings.

Evidence of Ms. Rodriguez from the Community Alcohol Team

[46]Alison Rodriguez, Head of Services at Manchester Community Alcohol Team, gave evidence that the Community Drug and Alcohol Teams never prescribed Heminevrin “because of the fatal interactions in some cases between Heminevrin and alcohol.” She said that “it should not be used according to the Committee on the Safety of Medicines for any purposes in an outpatient setting”. This was said to be relevant to the Appellant’s knowledge of the use of Heminevrin and when and whether it was appropriate to prescribe it. Ms O’Rourke claims it was yet another step too far, adding to a disproportionate focus on the Appellant.[47]Given the agreed evidence on the effects of Heminevrin from the medical experts it may have been unnecessary to call the evidence, but it was not prejudicial or inadmissible. It merely confirmed that expert advice was followed in practice and undermined the Appellant’s assertion he prescribed the drug on the advice of a psychiatrist. Conclusions on scope.[48]On proper analysis, therefore, most of the evidence to which Ms O’Rourke took exception was undoubtedly within the legitimate scope of the inquiry and did relate directly or indirectly, to the circumstances of Mr Donohue’s death. It is true that there were several pieces of evidence which Miss Leek properly and fairly conceded were of marginal or peripheral relevance to the death. Had they been fewer in number, the inquest may not have exceeded the original timetable to such an extent. However, it comes as no surprise to anyone familiar with the trial/inquiry process to discover that issues diminish in significance when subject to close scrutiny. It does not follow that the judge/coroner was wrong to admit the evidence in the first place and it most certainly does not follow that the integrity of the process has been undermined, especially where, as here, the Coroner has a broad discretion as to the nature and extent of the inquiry .[49]Ms O’Rourke faced a very high hurdle in persuading this court a) that the Coroner was wrong to admit the evidence and b) that the effect of his doing so has rendered the process unlawful. She would require far more than a series of complaints about relatively minor matters, which arose during the course of a lengthy and extremely thorough investigation, to surmount that hurdle. Taken individually or taken together, her complaints do not amount to a proper ground for challenging the lawfulness of the process.[50]For those reasons, I would reject the ground based on scope and turn to Ms O’Rourke’s other grounds for which she seeks permission to appeal.

Reading of statements

[51]Ms O’Rourke contended that several of the witnesses whose statements were read (for example medical staff at the hospital where resuscitation attempts were made) should have been called to give oral evidence. The failure to do so left a “significant lacuna” in answering the question of how the deceased died.[52]With respect, this complaint is baseless. The evidence the Coroner allowed to be read was uncontroversial, the parties agreed to its being read and it was well within his discretion so to order. Refusal to hear from Dr Langford.[53]A report was obtained on the Appellant’s conduct from a Dr Langford whom those representing the Appellant hoped the Coroner would call. However, the Coroner was not satisfied as to his credentials as an expert. Dr Langford originally qualified as a pharmacist and then became an Acute Medical Unit Consultant dealing with adverse drug reactions. The Coroner accepted the doctor could give evidence as to toxicology and pharmaceutical issues but held Dr Langford was not in a position to give expert opinion evidence about what a reasonably competent general practitioner should or should not have done or known between 1997 and 2002 and, therefore, did not call him. The Coroner referred Dr Langford’s conduct in holding himself out as an expert in this field to the GMC and referred to the instruction of properly qualified experts in his Rule 43 report.[54]Although the Coroner was wise to be alert to the question of expertise, I see force in the argument that it may not have been necessary to have been quite so critical of Dr Langford. He may not have been an expert in GP practice but he was an expert on the effect of drugs on the human body and presumably could give evidence as to recommendations on prescribing in the British National Formulary.[55]Further, I question whether the fact he had been instructed by the Greater Manchester Police to advise on this case justified a Rule 43 recommendation to all police forces around the country to introduce a protocol on the instruction of experts. Rule 43 recommendations are designed to prevent death and have implications for those who must monitor, respond to and or implement them. The expertise of an expert is an important issue but to me seems a little far removed from the kind of issue at which Rule 43 is aimed.[56]However, this advances the Appellant’s case no further. The contents of the Rule 43 report did not impact at all upon the jury’s consideration and the evidence Dr Langford could have given was fully and properly covered by Dr Robert Forrest, Honorary Professor of Forensic Toxicology. Dr Langford did not demur in any significant way from Dr Forrest’s opinion. It was for the Coroner to decide whom he wanted and needed to call. It was entirely reasonable, given the limited amount of disagreement between the experts, for him to call just the one expert on this particular issue.

Bias

[57]Ms O’Rourke went through several aspects of the history of the proceedings and the evidence called in her attempt to establish that the Coroner was biased against the Appellant or gave the perception of bias. She began with his obtaining an advice from Queen’s Counsel as to the possibility of a verdict of unlawful killing and his referring the Appellant’s conduct to the CPS and the GMC. She took us through what the informed observer might consider the relevant issues and submitted that the Coroner’s disproportionate focus on the Appellant would have appeared biased against the Appellant.[58]When analysed carefully this ground seemed to be, in truth, a compilation of all Ms O’Rourke’s other complaints. She claims the Coroner revealed or gave the appearance of bias because he allowed the inquiry to focus too much upon the Appellant’s conduct, character and alleged “cover up”, admitted irrelevant or marginally relevant evidence which undermined the Appellant in the jury’s eyes, allowed what she contended was excessively aggressive questioning of the Appellant and joined in that questioning.[59]This is a ground one can only assess by reading as much of the material as possible. Having done so, I do not detect the bias of which Ms O’Rourke complains nor any appearance of bias. The fact that rulings went against the Appellant does not indicate bias; nor does the fact that the focus of the inquiry shifted to the Appellant. The inquiry was led by the evidence. On investigation, the role of the emergency services personnel diminished in importance at the same time as the Appellant’s role in Mr Donohue’s death grew. The Appellant has only himself to blame for that fact.[60]It was his conduct in prescribing the lethal drug to a patient in these circumstances and his prevarication before the jury which put him in the spotlight. There was ample evidence, much of it agreed, to justify the assertions that the Appellant’s conduct fell far below the standards to be expected of a reasonably competent doctor and that he had been less than truthful with the jury to cover up that fact. The Coroner was duty bound to ensure as thorough an investigation of his conduct as possible and to follow where the evidence led.

Directions on causation of death and intervening acts

[61]It is said that the Coroner misdirected the Jury on causation and intervening acts. His summing up is described as “very brief” and likely to cause confusion for the Jury. However, the Coroner’s “directions” overall, in the sense Ms O’Rourke meant them, were far from brief. They consisted of a summing up running to hundreds of pages. The directions on the law were far from brief; they were repeated orally and in writing. No complaint could be properly made about their content. They summarised the law accurately. When this was pointed out in argument, Ms O’Rourke shifted her ground somewhat and criticised the Coroner for failing to relate his directions on the law to the facts, namely the intervention of others (including the deceased himself and his mother). Without an analysis of this kind, she maintained the jury would have been left confused.[62]This is another complaint which one can only consider in the context of the summing up as a whole. It is true that in an inquest an interested party is not entitled to make closing submissions on the facts to the fact finding body and that it is incumbent upon a coroner to direct the jury as to the issues and the evidence fully and fairly. However, the way in which he or she structures the summing up is matter for them. There is no set formula they are obliged to follow. Having read the relevant passages of the summing up I am satisfied the Coroner did explain the issues to the jury fully and fairly and reminded them of the evidence in such a way they can have been in no doubt as to what they had to decide. He cannot be criticised for any omissions. Failure to tell the jury of settlement of the civil claim of against the ambulance services[63]Ms O’Rourke could not understand why the Coroner did not inform the jury of the settlement of the claim brought by Mr Donohue’s family against the ambulance service. The explanation is straightforward: it would have told the jury nothing. The claim was settled with no admission of liability. Failure to invite the jury to consider the effect of an overdose of over the counter medicine with the same quantity of whisky.[64]Ms O’Rourke felt that the Coroner should have directed the jury to consider the possibility of what would have happened had Mr Donohue obtained over the counter drugs from the local chemist and taken an overdose of them. The answer is straightforward: the Coroner was not obliged to invite the jury to speculate on the basis of hypothetical scenarios.

Failure to read Professor Henry’s statement and other relevant evidence

[65]Ms O’Rourke complained that relevant evidence including a report from a Professor Henry was not called. There was a good explanation for this. None of those involved in the inquest, attuned to the real issues in the case, namely the Coroner and the PIPs, thought it necessary for further evidence to be called. They believed a full and rigorous investigation had been conducted of the roles of the emergency services personnel and of the Appellant– as indeed it had. Further, there were problems with the late Professor Henry’s report. He had arguably expressed an opinion upon matters beyond his expertise and the factual matrix upon which he had opined had changed during the course of the hearings. In any event, Dr Forrest and Dr Evans, a Consultant in Accident and Emergency Medicine, were called and extensively examined on the same issues. It was in these circumstances the Coroner decided not to admit the late Professor Henry’s report. Thus, the issues upon which his report may have been able to assist were fully explored. The Coroner had done his duty: no further evidence was required.

Narrative verdict

[66]The argument on the narrative verdict is twofold namely: the short form of narrative verdict put to the jury would not have provided answers to all the necessary questions and, in any event, the short form provided to them foreclosed their consideration by providing the answers. This argument is misconceived. First, the Coroner had a broad discretion as to how to leave the verdicts to the jury and what questions to ask, which he did not exceed. Second, the Coroner expressly directed the jury they could adopt or reject his form of words. It was entirely a matter for them. They did, in fact, change one significant word.[67]The question of verdicts brings me to the final specific complaint.

Suicide

[68]This ground caused me concern because, at first sight, it appeared to be an arguable ground which the Divisional Court understood had been abandoned. Paragraph 12 of their judgment states that Ms. O’Rourke accepted it was not unreasonable in the “Wednesbury” sense for the Coroner to remove the possibility of a verdict of suicide from the jury. Yet, Ms O’Rourke insists this is not true. She claims she merely ran out of time to develop the ground orally. If so, that is a very different thing from abandoning a ground. It was not possible for us to resolve the situation and I shall therefore proceed on the basis that Ms O’Rourke may have inadvertently misled the court.[69]I was initially attracted by the force of her arguments as to the weight of the evidence justifying a verdict of suicide. The deceased had a history of self harm and suicide attempts. Only days before his death Mr Donohue had threatened to kill himself. He had received some bad news about seeing his son at Christmas. In case he should take another overdose, his access to drugs was controlled by his mother. He must have been well aware of the risks of mixing Heminevrin and alcohol. On the day of his death when Mr Donohue asked his mother for some tablets she told him in clear terms to take 2 pills only. Yet he took the whole bottle. When Mrs Kowalski next saw him (not that long afterwards) she thought he had made a serious attempt on his life.[70]However, the evidence was far from all one way. There was no direct evidence that Mr Donohue intended to end his life. He left no note and he made no mention of killing or even harming himself to his family. On the contrary, he spent a happy day with his father and appeared to be planning for Christmas. He asked his mother for some tablets openly. We do not know exactly what happened thereafter and how he came to take the whole bottle. He could have taken the tablets at the same time with the alcohol, or in stages as his judgment gradually became impaired. However, we do know that despite his condition, Mr Donohue made a determined effort to get help. He sought his mother out and the way in which he informed her that he had taken the tablets carried with it the implication that he had not intended to commit suicide.[71]Thus, his chaotic approach to drugs and alcohol raised the real possibility that he simply kept drinking and taking the tablets without any specific intent. On that basis, the Coroner decided the jury could not safely conclude, to the criminal standard of proof, that Mr Donohue had intended the consequences of his actions.[72]The question of whether or not a judge or coroner should leave an issue to a jury may sometimes be a difficult one to answer; not all cases are clear cut. It then becomes very much a matter for the judgement of the judge or coroner who has seen and heard the evidence tested to decide. An appellate court will rarely intervene. In my judgment, this is such a case. The Coroner having seen and heard the evidence concluded that a properly directed jury could not exclude the possibility that this was not a suicide. That was a reasonable approach to take and not one with which I would interfere. There was no error of law.[73]In any event, it cannot be said that a failure to leave suicide has undermined the integrity of the verdict which was returned. The Coroner left to the jury the possibility of accident and an open verdict. They were directed to start with consideration of unlawful killing and work their way down the list if necessary. Had they not been satisfied as to unlawful killing they had other options. The jury system in this country depends on our trusting a jury to follow directions. Thus, their verdict indicates they had no doubt that the prescription of a dangerous drug to a volatile and vulnerable patient was a material cause of Mr Donohue’s death and that whatever roles the emergency services, Mr Donohue, and his mother played, they were not sufficiently potent to break the chain of causation.[74]For those reasons, I would refuse permission to appeal on all the additional grounds including the failure to leave a suicide verdict to the jury and I would dismiss the appeal on the ground of scope. Lord Justice Maurice Kay[75]I agree Lord Dyson, The Master of the Rolls.[76]I also agree.

Cited in 8 later judgments