Canning, R (on the application of) v Her Majesty's Coroner for the County of Northampton [2005] EWHC 3125 (Admin)

Case No CO/5026/2005[2005] EWHC 3125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 23rd November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF ADAM WILKIE CANNINGClaimant-v-
Between
HER MAJESTY'S CORONER FOR THE COUNTY OF NORTHAMPTONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS H HILL (instructed by Hodge Jones and Allen, London NW1 9LR) appeared for CLAIMANTMR A SHARLAND (instructed by the Legal Department of the Northamptonshire County Council) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is a tragic case which must elicit the sympathy of anyone familiar with the facts of it. The application to this court is brought under section 13(1) of the Coroners Act 1988, pursuant to a fiat granted by the Attorney General on 13th June 2005. The claimant seeks an order that the Coroner, for the County of Northampton, should hold an inquest into the death of his son, Francis Canning. Francis died aged 14 during the morning of 23rd January 2004. He was a very gravely disabled child. He was had severe cerebal palsy and what is referred to as global neurodevelopment delay. He was epileptic quadriplegic, blind and without speech. He could communicate, to a limited extent, by crying, laughing or smiling and he might scream if he was in pain.[2]Francis spent a substantial amount of time at a residential respit care centre called The Squirrels, which was run by the Northamptonshire Health Care Trust. He was there for five days, Monday to Friday, every two weeks. On Monday 19th January 2004 he was admitted to The Squirrels as usual for five days respit care. He was found then to be slightly constipated and his breath had an offensive smell.[3]There is some evidence that the nurse at the hospital was consulted. At all events, at length, his bowels were opened on 21st January and no further problems seem to have been encountered in relation to the odour of his breath. From 19th to 22nd January, he went each day (transport, of course, being provided) from The Squirrels to the Wren Spinnery Community Special School at Kettering which he had attended since October 2003.[4]When he returned to The Squirrels from school, on 22nd January 2004, he was unsettled. According to a report from Susan Clennett the Clinical Risk Manager of Northamptonshire Health Care NHS Trust he was "restless and moaning." There is some evidence that that was not itself unusual. He was was put on his bed. He showed a loss of appetite when he got up to have his tea. Again there is some evidence that that was not unusual, so much was acknowledged by Miss Hawes, a senior primary nurse at The Squirrels. Miss Hills for the claimant submits, and there is some foundation for this, that the picture is to say the least, not entirely clear.[5]Francis remained unsettled. He started to sweat but his temperature was within normal range. At 8.45pm he was restless and crying, and he was so again at about 10.00pm and at 10.50pm. On that last occasion he appeared to be in pain and was given paracetamol.[6]After that, he had, according to Miss Hawes, a settled night; on the other hand there was a hearsay statement from Mrs Hawes, the school nurse, that he had a poor night. She was not of course a direct witness of what was happening at The Squirrels.[7]Miss Hills says that there are some uncertainties and inconsistencies in the material relating to events on 22nd January. As I have said, one was as to the reason for how he presented on return from school. There was an account relating to a change of his Baclofen pump and also there was the question of whether it was or was not usual for him to have a poor appetite.[8]Early the next morning, 23rd January, Francis, had some breakfast. His hands and feet this time were found to be cold. Miss Hawes thought he should see a doctor. She phoned the claimant. There is some dispute as to the detail of what happened at that stage, but, at all events, Francis was put on a school bus at 8.00am to 8.10am. On arrival at school at about 9.10am he was found to be pale, his lips were slightly cyanosed and his extremities cold. His colour however improved; but the school nurse, Miss Hawes, on returning to the classroom where Francis was, found he was still pale, his extremities remained cold and his tongue looked dry.[9]She phoned the claimant and she told him that Francis was very poorly. The claimant went to the school, together with a Learning Support Assistant he took Francis to the Kettering General Hospital. On the way, Francis’s breathing became shallower and it is the claimant's own firm belief that he died in the car. The school nurse was to telephone The Squirrels and report that Francis had died on the way to hospital. The post mortem examination was carried out by Dr Stocks, the Consultant Histopathologist at the Kettering General Hospital. He concluded that the cause of death was an infarction of the small bowel caused by what is caused a volvulus, a condition in which a section of the bowel becomes twisted. This twisting leads to the bowel become devascularised and to acute inflammation.[10]In Francis’s case there was also evidence of peritonitis. These later critical stages would, in doctor Stock's view, take about 24-hours to develop. He also gave it as his opinion that a delay of one-and-a-half hours in seeking medical attention would not have altered the fatal outcome.[11]On 11th February 2004, the claimant's then solicitors asked the defendant coroner to hold an inquest. She declined to do so indicating that she was satisfied that there was no evidence of culpable failing" and she was entirely satisfied" that Francis had died of natural causes. The expression culpable failing and the notion of a natural death drawn from the law on the subject and it is convenient at this stage to turn to the relevant statute. That is section 8(1) of the Coroners Act 1988. It provides, so far as material:
"where a coroner is informed that the body of a person (the deceased) is lying within his district and there is reasonable cause to suspect that the deceased (a) has died a violent or unnatural death… then whenever the cause of death arose within his district or not the coroner shall as soon as practicable hold an inquest into the death of the deceased."
[12]Where death is by natural causes, but there is reasonable cause to suspect that medical neglect, lack of care or other culpable human failure could have contributed to the death, it may fall to be treated as unnatural within the meaning of section 8(1)(a) of the 1988 Act. That is mere summary of some of the learning on the subject to which I will briefly return a little later. The claimant, by his counsel Miss Hill, accepts that the defendant's decision not to hold an inquest can only be impugned on this statutory appeal on Wednesbury grounds: see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 QB 223. That is to say, it must be shown that the decision was unreasonable and irrational in the sense given by that well-known authority, or else some other error of law has to be demonstrated: see R Touche v Inner London North Coroner [2001] 1 QB 383 per Simon Brown LJ, as he then was at paragraph 16. I shall have a little more to say about the Touche case shortly.[13]The claimant's solicitors consulted an expert by name Professor Milla: Professor in Paediatric Gastroenterology and Nutrition at the Great Ormond Street hospital. Professor Milla produced a report, dated 7th May 2004. At this stage I will just cite a passage that is particularly picked out by Miss Hill in her skeleton argument:
"It seems clear that Francis did develop symptoms on the evening of 22nd January and almost certainly his bowel was volved at this time. Interpretation of those symptoms in a boy with such profound and severe handicap would be difficult for individuals who are not extremely familiar with Francis. As he has a period of being unsettled for a prolonged period of time on the evening of 22nd January, it would have been prudent for him to have been assessed by an individual who was familiar with him."
Professor Milla added:
"He died on 23rd January from a small intestinal volvulus which produced infarction of his intestine and peritonitis. His death was of natural causes, by way the volvulus occurred has not been elucidated."
[14]It has to be noted that there was here no suggestion, certainly no express suggestion by Professor Milla that had Francis been examined on 22nd January 2004 a diagnosis of small bowel infarction would have been elicited or the need recognised at that stage for urgent surgery.[15]On 30th June 2004, in response to further correspondence from the claimant's solicitors, which we have seen, Professor Milla wrote a letter. He stated:
"Your assumption is correct that he ought to have been medically examined. I suspect that if skilled surgery had been available to Francis at the time he awoke on the morning of his death on the balance of probabilities he would have been saved. However, this would probably have meant that he ought to have been in a setting where it could have been carried out at that time and in a sense prepared and ready to go to theatre. In reality this probably means being admitted some hours sooner than this."
[16]In later correspondence, after Professor Milla’s report and letter had, as I understand it, been put to her, the coroner by letter of 24th January 2004 maintained her decision not to hold an inquest.[17]The question here, as is stated in counsel's skeleton argument prepared for the defendant at paragraph 17, is whether the coroner had "reasonable cause to suspect" that Francis died an "unnatural" death. The test for this court in adjudicating upon a decision arrived at by the coroner is, as I have said, the Wednesbury standard. As for the sense to be attributed to the term unnatural" it was held by the Court of Appeal in Touche that a death was unnatural if there was reason to suspect that there was a gross failure to provide basic medical attention and that the need for such attention was obvious at the time: compare ex parte R v Coroner for North Humberside and Scunthorpe, ex-parte Jameson [1995] QB 1. Simon Brown LJ also stated obiter that unnatural deaths might include:
"cases involving a wholly unsuspected death from natural causes which would not have occurred but for some culpable human failure."
There was a good deal of discussion in Touche of the earlier case of R v Poplar Coroner, ex-parte Thomas [1993] QB 610, but with great respect it is not necessary, for present purposes, to take time with that authority decided in this court.[18]It is in my judgment clear on the facts that by the morning of 23rd January 2004, when Francis was found to be pallid and cold it was too late to begin any remedial action which would have saved his life. He would on Professor Milla's later letter have had to be admitted to hospital some hours earlier than the time he awoke on 23rd January - to be prepared for surgery that might have saved him. Should the coroner have decided that steps ought arguably to have been taken, on the evening of 22nd January, to initiate medical intervention leading to Francis’s admission to hospital? It is necessary to return to Professor Milla’s report. He said:
"It has also been suggested that Francis must have been in severe pain whilst his small intestine was volved but symptoms of intra-abdominal pathology are extremely variable especially in a neurologically impaired child and in a very young child. It is thus quite possible that Francis did not experience the severe pain that might have been expected from a normal individual of his age, especially when one considers the large amount of anti convulsents and the baclofen that he was on. Thus the apparent lack of physical symptoms and signs in the 24-hours prior to his death, other than his pallor and coldness, were quite possibility as matters were. His pallor and coldness almost certainly where as a consequence of vascular shutdown from the toxaemia generated by his aschemic valve. I have already read the passage in which Dr Milla refers to the development of symptoms on the evening of 22nd January. It is his observation that interpretation of such symptoms in a boy with these great handicaps would be difficult for anyone not very familiar with him and the comment that "as he had a period of being unsettled for a prolonged period of time on the evening of 22nd January it would have been prudent for him to have been assessed by an individual who was familiar with him."
It is plain that there was no evidence of coldness and pallor before the morning of 23rd January. As to his being unsettled for a prolonged period of time, Miss Hawes’ evidence is not expressed very tightly, but it may broadly be said that the evidence shows that he had periods of being unsettled until 11.30pm, the time when he was, as I understand it, given paracetamol. There seems to have been periods when he was settled: 8.45pm until 10.00pm, a little after 10.00pm until something like 11.00pm and from 11.00pm or 11.30pm until 6.15am.[19]The factual basis for Professor Milla’s view that it would have been prudent to have Francis assessed that night is thus rendered somewhat fragile. The professor was, of course, firmer in his later letter where he said Francis ought to have been medically examined, though it is right to say that that expression is no more nor less than an acceptance by Professor Milla of the terms being put to him in the solicitor's letter which he then had before him. In my judgment it is very important to note, and I have already referred to this, that Professor Milla gives no indication as to whether or how a conclusion might have been reached on 22nd January that Francis required urgent bowel surgery.[20]Taking all these matters into account, I am driven to conclude that it is impossible to hold that the coroner arrived at an irrational or otherwise unlawful decision in declining to hold an inquest. She was very far from being driven to hold that there was a gross failure to provide basic medical attention to answer a need that was obvious at the time, but there was in truth no evidence of that. Nor was she in a position of being driven to hold that there was here a wholly unexpected death from natural causes which might not have occurred but for some culpable human failure. I have not forgotten Miss Hills’ submission, based on Hussain 1970 AC 942, that reasonable suspicion does not entail a prima facie case. But I cannot see that it was perverse of the coroner here to conclude that there was no reasonable cause to suspect an unnatural death as that expression has been explained in the cases. I should add that various enquiries were made at the time of which we have but imperfect documentation. Miss Hill has referred to those. I have considered them. They are very helpfully summarised in Miss Hill's skeleton argument. I do not propose to set them out at length. I will say that she refers, in particular, to the conclusions of an internal report prepared by the Northamptonshire Hartlands NHS Primary Care Trust and two other reports including one prepared by the school. The indications are that attempts were being made to learn lessons from what had happened as to what best practice would be. Miss Hill says that even though these were not independently arrived at, the documents at least show there were concerns and matters that should have been investigated further. I am afraid I have to make it plain that those documents do not begin to undermine my view that the coroner was entitled to conclude, under section 8, this was not a case where she was obliged to convene the inquest.[21]In these circumstances, as a matter of domestic law and the application of section 8 of the Coroners Act, in my judgment the coroner acted perfectfully lawfully in deciding as she did and I would dismiss the application, so far as it related to her decision under the section. However, Miss Hill has also relied on Article 2 of the European Convention on Human Rights and the cases decided by the European Court of Human Rights indicating a procedural obligation to investigate certain kinds of death and, in particular, those were the deceased died in the care of a body or institution of the State.[22]She has referred to some of the Strasbourg jurisprudence, and in particular to a domestic case decided in this jurisdiction in which that material is carefully discussed. This is a decision of Richards J, as he then was, in Goodson v Her Majesty’s Coroner for Bedfordshire and Luton and Luton and Dunstable Hospital NHS Trust [2004] EWHC Admin 2931. Miss Hill candidly, and if I may say so plainly rightly, accepted that it would at least be very difficult for her to mount an Article 2 case absent a fair wind on the domestic law. Goodson shows that where there is, in effect, no evidence of culpable failure, or something going beyond simple negligence, Article 2 is not engaged in a case of this kind. I see no room for a conclusion that Article 2 could separately avail the claimant on the facts of this case and therefore that limb of the argument, in my judgment, fails also.[23]For all those reasons I would dismiss the application. I should say that Miss Hill has conducted the case with a very great deal of tenacity and elegance. I cannot think that anything more could have been said on behalf of the claimant, but I have concluded, for the reasons I have given, that there is no case in law to challenge the coroner's decision.[24]MR JUSTICE OUSELEY: I agree. I add my sympathy to the claimant for the circumstances in which he finds himself. I have no difficulty in understanding why there might be a sense of grievance that he will be unable to participate in an inquiry, formal or informal, into his son's death doing the best he can for him in death as in life. I understand as well why civil proceedings may not satisfy his concern to know what happened and what could have been prevented. However, for the reasons given by my Lord, not merely do I conclude that the coroner was wholly justified in her conclusion, I find it difficult to see how any alternative conclusion could properly have been reached. The high point of the claimant's evidence is the report of Professor Milla in which he refers to the prolonged period of unsettlement, in reality intermittent unsettlement, on Francis's return from school until about 23.30 hours that evening. This, said Professor Milla, meant that the staff at the residential home would have been prudent to seek, or ought to have sought a medical examination by somebody familiar with Francis in order to be able to interpret his condition.[25]For my part I do not see how that, if correct, could possibly satisfy the fairly high leisure hold set out in Touche. In any event, as my Lord has said. Professor million L does not explain how the symptoms that would then have been able for interpretation could have led to a diagnosis of roll loss with the preparation for surgery taking place no later than 6.30am on the day Francis died.[26]In my judgment, there is no basis for an allegation that there is a possible breach of Article 2, if there is no coroner's inquest.

LORD JUSTICE LAWS: Thank you very much. Yes, Mr Sharland?

[28]MR SHARLAND: There is no application on behalf of the coroner. I just had one point: I believe in your judgment you referred to ex-parte Thomas as the decision of this court. The decision referred to by myself, and you were taken to it by my learned friend, is a Court of Appeal's decision.

LORD JUSTICE LAWS: Perhaps the shorthand writer could correct that. The reference to Thomas is not a decision of this court but the Court of Appeal. Thank you, Mr Sharland. Yes, Miss Hill?

[30]MISS HILL: Forgive me. Could I consider an application for permission to appeal your Lordship's decision. The basis of it is that simply this case does raise an issue about the interaction between Article 2 and section 8. The Goodson case is going on appeal. As far as the Goodson case is concerned, that has clearly formed part of your Lordship's consideration. In my submission this case does raise an important and interesting point about the extent to which the section 8 obligation is triggered in the light of Article 2. Given it is a rather rapidly developing area of law, I suspect an appeal is relatively imminent. I would invite your Lordship's consideration for permission to appeal.

LORD JUSTICE LAWS: Do you want to say anything, Mr Sharland?

[32]MR SHARLAND: If I can assist you I will do. Given your clear judgment I am not sure there is anything that I can say.

LORD JUSTICE LAWS: Miss Hill, again we are sympathetic but we consider that this case goes really essentially on its facts. You are, of course, entitled, or your client is entitled, to ask the Court of Appeal for permission.