Bicknell v HM Coroner for Birmingham [2007] EWHC 2547 (Admin)

[2007] EWHC 2547 (Admin)Case No CO/3338/06
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2007
Before
THE HONOURABLE MR. JUSTICE McCOMBE
Between
Hazel BICKNELLClaimantH.M CORONER for Birmingham/SolihullDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Alison Macdonald (instructed by Irwin Mitchell) for ClaimantMiss Alison Hewitt (instructed by Birmingham City Council) for DefendantHearing Hearing dates: 19 October 2007
Judgement
[1]This is a claim for judicial review of a decision made in about January 2006 by Her Majesty’s Coroner for Birmingham and Solihull (“the Coroner”) not to hold an inquest into the death of Mr. Leslie Vines (“Mr. Vines”) who died on 7 September 2002 aged 77. The Claimant is Mrs. Hazel Bicknell (“Mrs. Bicknell”) who is Mr. Vines’ daughter. Mrs. Bicknell claims that(i) it was irrational of the Coroner to decide that he could “find no sufficient grounds to hold an inquest touching the death of Mr. Vines on the grounds that his death was an unnatural death” (paragraph 25 of the Coroner’s undated first statement) and/or(ii) the failure to hold an inquest constituted a breach “of the investigative duty contained in Article 2 of the European Convention on Human Rights (“ECHR”) and is accordingly unlawful under section 6 of the Human Rights Act 1998” (see Statement of Facts and Grounds paragraph 20). The decision appears to have been taken in January 2006 and to have been publicly announced at that time. However, the communication of the decision to Mrs. Bicknell has been taken by her advisers as having been effected by the provision to them of the undated witness statement from the Coroner in March 2006. No issue arises as to any lack of promptness on the part of Mrs. Bicknell in bringing her claim. Permission to apply for judicial review was granted by Mr. Justice Burton on 20 July 2006.

(B) Background Facts

[2]Mr. Vines died at the Maypole Nursing Home (“the Home”), 1026 Alcester Road South, Maypole, Birmingham B14 5NG. The Home was owned and operated by two general medical practitioners, Dr. JH Gopal and Dr. PS Lakshmi. Dr. Gopal and Dr. Lakshmi are a married couple. The Home was registered by the local health authority to provide residential care for the elderly who suffered from mental health problems. While it was a privately owned establishment, funding for patients’ care was largely provided by Birmingham City Council Social Care and Health Department under the aegis of the National Health Service provision.[3]Mr. Vines was admitted to the Home on 27 August 2002 from a local hospital. (Much of the medical history - which is uncontroversial - I take from the report of Dr. Thomas Boyd MA, FRGP (“Dr. Boyd”) the medical expert who has been instructed on behalf of Mrs. Bicknell.) Mr. Vines was suffering from Alzheimers and Parkinsons Disease. He had a long history of depressive illness, sometimes described as manic depressive psychosis. He had been treated at times in the past with an anti-psychotic drug called haloperidol. Towards the end of his stay in hospital, prior to admission to the Home, he was given, from time to time, doses of 2.5 mg of this drug by injection.[4]Mrs. Bicknell states that at the time of his admission to the Home her father seemed calm, although he did not seem to know where he was. On the second day of his admission he seemed quite well to Mrs. Bicknell. She and her mother spent some time with him in the garden of the Home. Mr. Vines seemed to her to be cheerful. Mrs. Bicknell expresses concern in her statements that, although she was given to understand that his drugs regime was the same as in the hospital, from the time of his admission to the Home, her father seemed to be given a number of new tablets which she had not seen before. She also states that she and her mother began to have serious worries about the adequacy of the diet that her father was getting; he appeared to be losing weight and was becoming lethargic. She further reports an incident when, on arrival at the Home, she found her father lying in a corridor where people were stepping over him; she says that on this occasion one of the staff handled him roughly in putting him back into a chair in a recreation room.[5]Dr. Boyd in his report is very critical of the medical records maintained during Mr. Vines’ stay at the Home. He says that the GP records are confined to three A4 pages of computer print out, concerning prescription and contacts, and a note of a visit from a duty service doctor at a time on 7 September 2002 after Mr. Vines had died.[6]The notes record that Dr. Gopal saw Mr. Vines on 3 September 2002 when he was said to be agitated and restless. Haloperidol was prescribed, at a dose of “5 mg prn” which I was told means “5 mg as required”. It seems that 10 mg may have been administered on that afternoon, although the drug chart indicates only one 5 mg tablet having been given. On 4 September the charts show a further 5 mg dose. On the same day nursing notes record, “Put him at the bucket chair this afternoon, found him comfortable with that chair…”. A further note, dated by Dr. Boyd, with some hesitation as 5 September, states, “Putting himself on the floor this am, remainder of the day nursed in bucket chair appeared a lot more settled”.[7]The “bucket chair” receives little description in the evidence but it seems to have been a low slung seat from which elderly and/or restless patients would have difficulty in extracting themselves without assistance. Mrs. Bicknell reports having seen her father in such a chair “a few times”. She saw him in a bucket chair at lunchtime on 6 September, the day before his death. He did not appear well and was “clammy and quiet”. A nurse told her that the doctor had seen him and had diagnosed a chest infection; antibiotics had been prescribed. Dr. Boyd is unable to detect reliable notes of the administration of antibiotic but refers to a “progress note” for 6 September stating “…Antibiotic started”.[8]A nursing note apparently timed “5.45” on 6 September records “Passed away RIP. Family informed also locum”. It appears, however, that the observation must have been made at 5.45 a.m. on 7 September 2002 (rather than 6th) since Mrs. Bicknell states that it was at 6.10 a.m. on that morning that she received a call from a nurse at the Home informing her that her father had died. A note by a Dr. Vijay, dated 7 September, records that death was certified at 0743 hours. The formal death certificate before me, recording the registration of the death on 9 September, states that death occurred on 7 September; it is said to have been certified by Dr. Gopal and that the cause is identified as “I(a) Bronchopneumonia II Dementia”.[9]Mrs. Bicknell’s evidence is that, on the morning of 7 September 2002, she and her husband went to the Home with her mother, arriving there at about 7.30 a.m. (i.e. about 15 minutes before the timing of the certification of death) They were shown into a room. After a wait they took the initiative of going to Mr. Vines’ room. His body was on the bed in pyjamas “all hunched up”. To Mrs. Vine’s eye he was distorted and it looked to her as if his right shoulder was pulled right up. His body was not straight but angled which gave rise to the thought on her part that he may have died in the bucket chair rather than in bed. No medical evidence confirming or denying this has been placed before me.[10]The death of Mr. Vines was not reported to the Coroner at that time and a funeral and cremation proceeded later in September 2002. Mrs. Bicknell says, in a statement to this Court, that she did not complain then about the circumstances surrounding her father’s death because she was unsophisticated in such matters and was concerned primarily about the effect of the death on her mother. In 2003 she was contacted by the National Care Standards Commission when it was investigating standards at the Home. In March 2003 the Commission indicated an intention to close the Home compulsorily, but before that step was taken the owners closed the Home voluntarily. Other investigations into standards at the Home were conducted by the Birmingham & Black Country Strategic Health Authority in 2005 and disciplinary action was taken by the General Medical Council against Dr. Gopal and Dr. Lakshmi, resulting in the suspension of their registrations as medical practitioners.[11]In January 2005 solicitors on behalf of Mrs. Bicknell took up her concerns about her father’s death with the Coroner. In September of that year the solicitors provided the Coroner with Dr. Boyd’s report. In that report, Dr Boyd comments on the poor quality of the medical records and the difficulty, therefore, in piecing together the precise events leading to Mr. Vines’ death. However, he raises other concerns. He comments adversely upon the apparently increased dose of haloperidol given to Mr. Vines, which was perhaps four times the dose that he had received previously in hospital. Dr. Boyd was not familiar with bucket chairs, but his view is that the combination of poor mobility and sedation are well known to increase a patient’s susceptibility to pneumonia. He is also concerned that antibiotics may not have been given promptly enough after the diagnosis of pneumonia. Dr Boyd also states that the absence of records might also make it impossible for an expert in the causation of deaths to give an opinion whether Mr. Vines would have survived if he had been managed correctly.

(C) The statutory background

[12]Before turning to the Coroner’s reasons that are now under challenge, it is convenient to set out the relevant parts of the Coroners Act 1988 (“the Act”). Section 8(1) of the Act provides as follows:
“(1) 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; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act, then, whether 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 either with or, subject to subsection (3) below, without a jury. ”
Section 15(1) and (2) provide as follows: “(1) Where a coroner has reason to believe – (a) that a death has occurred in or near his district in such circumstances that an inquest ought to be held; and (b) that owing to the destruction of the body by fire or otherwise, or to the fact that the body is lying in a place from which it cannot be recovered, an inquest cannot be held except in pursuance of this section, he may report the facts to the Secretary of State. (2) Where a report is made under subsection (1) above, the Secretary of State may, if he considers it desirable to do so, direct a coroner (whether the coroner making the report or another) to hold an inquest into the death.” (a) has died a violent or unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act, then, whether 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 either with or, subject to subsection (3) below, without a jury.

(D) The Coroner’s decision

[13]In the Coroner’s statement provided to Mrs. Bicknell’s solicitors in March 2006 the Coroner makes the point that, at the time of the intervention on Mrs. Bicknell’s behalf, he had no power to hold an inquest into Mr. Vines’ death, because at no time had he been made aware of the body lying within his district. By the time he had knowledge of the family’s concerns the body had already been cremated. Accordingly, he was not required by Section 8 of the Act to hold an inquest. So much is, I understand, now accepted on Mrs. Bicknell’s behalf. However, the Claim Form in these proceedings still claims a mandatory order requiring the Coroner to hold an inquest. It may be that that claim is now predicated solely on the argument based on Article 2 of the ECHR.[14]The Coroner’s statement of March 2006 accepted that the Secretary of State might well have power to direct an inquest under Section 15. Apart from the effect of Article 2, it seems correct that the power to direct an inquest is indeed now confined to the circumstances provided by Section 15. The Coroner states, however, that he considered Mrs. Bicknell’s request for an inquest as if he did have jurisdiction. He directs his attention, therefore to the criteria specified in Section 8. He concluded that there were no grounds for saying that the cause of death was “unknown”. He notes Dr. Boyd’s dissatisfaction with the records as a basis for providing a cause of death, but he concludes that this does not undermine the cause identified by the certifying doctor (who was, of course, Dr. Gopal.)[15]The Coroner then went on to consider in his statement whether Mr. Vines’ death may have been “unnatural”. He makes it clear that he accepts that a death from natural causes may be “unnatural” within the sense of the statute because of the circumstances in which that death has occurred. The Coroner notes the various points made by Dr. Boyd in his report but concludes in paragraph 23, “I have not read nor have I been told of any evidence which shows any causative link between any improper behaviour or treatment and Mr. Vines’ death” (emphasis in the original). He noted further Dr. Boyd’s recognition of the difficulties in determining whether, given competent management, Mr. Vines would have survived. He then states that he could find no sufficient grounds to hold an inquest on the basis that Mr. Vines’ death was an unnatural death. The statement does not address the question of whether a report should have been or should be made to the Secretary of State under Section 15.

(E) The Challenge

[16]On Mrs. Bicknell’s behalf it is submitted that the Coroner’s decision does not engage sufficiently with the views of Dr. Boyd as they touch upon the question of whether Mr. Vines’ death was “unnatural”. It is argued that the decision focuses upon factors of concern about the running of the Home and the treatment of patients and then dismisses these as not being shown to be directly causative of the death. In contrast, it is submitted that Dr. Boyd’s report raises matters that do relate specifically to Mr. Vines’ death and that the Coroner seems to have been requiring a higher level of proof of the causative link between those matters and the death than the law requires before an inquest becomes obligatory.[17]The Coroner’s approach has been formally neutral in these proceedings. He stands, however, by the correctness of his decision and Counsel instructed on his behalf, Miss Hewitt, addressed short submissions to me.

(F) Discussion

[18]I would have addressed in turn the issues arising under the Act and under the ECHR. I state at the outset, however, that the view that I take of the first point makes it unnecessary to decide the second. In my judgment, the Coroner should make a report to the Secretary of State under section 15 of the Act. I turn to that question.[19]In the course of the able and helpful argument addressed to me by Miss Macdonald for Mrs. Bicknell I raised with her the question of the inter-relation of Sections 8 and 15 of the Act. My question was whether the circumstances in which a Coroner should have “…reason to believe…an inquest ought to be held…”, within the meaning of Section 15 are any wider or narrower than the circumstances set out in Section 8.[20]Miss Macdonald submitted that if Parliament had intended the Section 8 criteria to be exclusive in the decision-making process under Section 15 it would have been easy to make an express reference back to Section 8. In the absence of such a reference, I should construe the words widely. Alternatively, she argued, I should construe the words sufficiently widely to accord with the State’s obligation of proper enquiry under Article 2 of the ECHR. Miss Hewitt’s answer to the question was that the relevant circumstances under Section 15 cannot be “broader” than those engaging Section 8, because the absence of a body (the precondition of Section 15) of necessity narrows the Coroner’s ability to act.[21]I am not satisfied that the argument in this case resolved this question. Nor do I consider that it is necessary to reach an answer for the purposes of this claim. The Coroner approached his task by reference to the Section 8 criteria and Mrs. Bicknell has not sought to do otherwise than challenge his reasoning on the basis of those criteria. In other words, the Coroner decided that he did not have “reasonable cause to suspect that the deceased…has died…an unnatural death” on the evidence before him and, therefore, did not consider that “an inquest ought to be held” for the purposes of Section 15; therefore, no report to the Minister was called for. Mrs. Bicknell contends that that decision was irrational and/or based upon an error of law in the application of the test under Section 8.[22]I was, of course, referred to the decision of the Court of Appeal in R (Touche) v Inner London North Coroner [2001] QB 1206; [2001] EWCA Civ 383.[23]In that case, the deceased, having given birth by caesarean section, died of severe hypertension following inadequate monitoring of her blood pressure in the immediate post-operative phase. The initial report to the Coroner in that case gave no cause for concern and the Coroner found no need to hold an inquest. Accordingly, a cremation took place. The fact of the cremation was not made known to the Court in the course of proceedings until the case had reached the Court of Appeal. The claimant in the proceedings, who was the husband of the deceased, had succeeded in the Divisional Court in his challenge to the Coroner’s decision under Section 8. The Court of Appeal found, however, that while the Coroner’s original decision could not be impugned he should have concluded that an inquest “ought to be held” and that a report to the Secretary of State was the way forward.[24]The appeal in Touche’s case was concerned with two points which the Court called the “narrow ground” and the “wider ground”, as advanced by the respondent for upholding the decision of the Divisional Court. The Court of Appeal accepted that the decision allowing the claimant’s judicial review application had been correct on the “narrow ground” (not argued in the Divisional Court) that it would be open to the coroner (or jury) to return a verdict that the death was caused or contributed to by “neglect”. The conclusion was that inquests ought to be held in such cases because of the possibility of a “neglect” verdict. However, it was also held that there will be cases falling outside the category of “neglect” which appear to call for an inquest on the basis that they involve a wholly unexpected death from natural causes which would not have occurred but for some culpable human failure. Unexpectedness and culpable human failing make such deaths “unnatural”: see per Simon Brown LJ at paragraph 46 of the judgments.[25]In the same case Robert Walker LJ said that “unnatural” means little more than abnormal and unexpected. He doubted whether the naturalness or unnaturalness of a death should be determined exclusively in terms of causation, especially if that is seen as requiring a search for a single dominant cause of death. In his Lordship’s view the better way forward is to look for a combination of circumstances rather than a single dominant cause: see paragraphs 61-62. Adopting slightly different reasoning, Keene LJ emphasised that there may be more than one cause of death in any given situation.[26]In my judgment, in the light of Dr. Boyd’s report and many other factors, the Coroner should have decided that an inquest “ought to be held” and should have reported the facts to the Secretary of State under section 15 of the Act. I take that view on the basis of either the “narrower ground” or the “wider ground” that persuaded the Court of Appeal in the Touche case. I consider that the decision to the contrary was Wednesbury unreasonable, although taken conscientiously and carefully.[27]In my view, if a failure to monitor blood pressure in the circumstances of the Touche case gave rise to a conclusion that an inquest ought to be held, then the present case is an even clearer one. Dr. Boyd raises the distinct possibility that Mr. Vines’ death from a “natural” cause was caused or contributed to by the excessive doses of the anti-psychotic drug, coupled with the restrictive effect of the bucket chair and the possible failure to give adequate anti-biotic treatment once pneumonia set in. To my mind, those circumstances together with Mrs. Bicknell’s observations clearly gave rise to “reasonable cause to suspect” that Mr. Vines had died an unnatural death within the meaning of Section 8 of the Act. I think there is force in the criticism made on Mrs. Bicknell’s behalf that paragraph 23 of the Coroner’s statement indicates an excessive focus by him on a perceived requirement to demonstrate a causative link between the death and the improper behaviour or treatment. Such an approach goes further than the requirement of “reasonable cause to suspect…”.[28]In my judgment, by the time of the intervention on Mrs. Bicknell’s behalf, the other factors of concern as to the care standards at the home ought also to have added impetus to a decision that an inquest “ought to be held”. The circumstances touching upon Mr. Vines’ death, including Dr. Boyd’s report and Mrs. Bicknell’s observations are telling enough, but when one adds to those the more general concerns raised by other investigations, it becomes a compelling conclusion that there is reasonable cause to suspect an unnatural death. Here was a suspicious death occurring in a care home where substantial doubts as to the standards of care had already emerged.[29]In fact, the Coroner himself has told the Court that if Mr. Vines’ death had been reported to him in September 2002, he would almost certainly have held an inquest. In his statement of 22 May 2006 the Coroner says this:
“If Mr. Vines’ death had been reported to me in September 2002 I would almost certainly have held an Inquest if his Family has expressed concern to me relating to his treatment at Maypole Nursing Home and the possibility that that treatment contributed to his death. I would have done so at that time because my invariable practice is to hold an Inquest if I have jurisdiction and if there is reasonable cause to suspect that the death may have been unnatural. … However, by the time the Claimant through her Solicitors asked me to hold an Inquest I not only no longer had jurisdiction but I also had the evidence available from the investigation carried out by the West Midlands Police and the Primary Care Trust and the Birmingham Strategic health Authority and the General Medical Council, all of which show very clearly that not only is there no reasonable cause to suspect that Mr. Vines died an unnatural death but that there is no reasonable prospect of any new evidence being produced at an Inquest if it were to be held.”
In other words, the Coroner seems to have concluded that there were grounds for suspecting that the death was unnatural. I do not see how the second quoted paragraph follows logically from the first. As I understand it, the two investigations mentioned (which I was not invited to consider in any detail) were dealing with care standards at the home generally. They were not focused upon the circumstances of Mr. Vines’ death in particular. For reasons already given, I consider the more generalised concerns ought to have fortified the particular concerns in Mr. Vines’ case.[30]It must, of course, be noted that the death occurred more than 5 years ago now and there will be difficulties in assembling any additional evidence at an inquest. I have considered whether that should affect the outcome of the claim. However, in paragraphs 7 and 8 of his first statement (of March 2006) the Coroner states his belief that difficulties such as these are irrelevant to the decision whether an inquest should be held. I see no reason to go behind that judgment of the Coroner now. It may be, however, that they are matters that may affect the Secretary of State’s decision in due course. I make no comment, however, as to whether those are proper considerations at that stage; that is a matter for the Secretary of State.[31]In the circumstances, it is not necessary to decide the issue raised under Article 2 of the ECHR. In any event, I would have been reluctant to deal with a challenge to the adequacy of this country’s compliance with the investigatory obligations arising under Article 2 without the Secretary of State being made a party to the proceedings (c.f. R (Middleton) v West Somerset Coroner [2004] 2 AC 182; [2004] UKHL 10) . It does not seem to me to be right for such a question to be decided in the isolated context of a challenge to an individual decision of a local Coroner without hearing argument from a representative of central government.[32]I should add that by application notice of 18 October 2007 (the day before the hearing) Dr. Gopal and Dr. Lakshmi applied for consideration to be given to their position in the context of this judicial review. The application is supported by a statement of their solicitor, Mr. Richard Flew. No one appeared at court on the doctors’ behalf to pursue this application. However, I have read the material. The doctors’ position seems to be that any inquest would largely overlap the areas of inquiry covered by earlier investigations by other bodies. The inference is presumably that I should not, therefore, accede to this application. I do not consider that I should be swayed by this late application by Dr Gopal and Dr Lakshmi to take a course different from that which seems to me to be right after hearing substantive argument from the parties to the proceedings.

(G) Conclusion

[33]For the reasons given, I have concluded that the present application should succeed. In those circumstances, it has been indicated on the Coroner’s behalf (see paragraph 3 of Miss Hewitt’s skeleton argument) that he will willingly report the facts to the Secretary of State under Section 15.[34]In paragraph 28 of his initial statement and again in a statement of 3 September 2007 the Coroner asked, if the Court decided an inquest should be held, for directions relating to inquests into other deaths at the Home and related questions. None of those matters were taken further at the hearing and I do not consider it appropriate to make any further comment about them in this judgment. Moreover, the question of whether an inquest should be held in this particular case will now be a matter for the Secretary of State after consideration of the Coroner’s report.[35]I invite Counsel to submit a draft order to give effect to this judgment.