Jenkins, R (on the application of) v HM Coroner for Portsmouth & South & Ors [2009] EWHC 3229 (Admin)

[2009] EWHC 3229 (Admin)Case No CO/1368/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/12/2009
Before
MR JUSTICE PITCHFORD
Between
THE QUEEN (on the application of DONALD LEWIS JENKINS)ClaimantHM CORONER FOR PORTSMOUTH AND SOUTH EAST HAMPSHIREDefendantCHERIE ELIZABETH CAMERONFirst Interested PartyELIZABETH FINNSecond Interested Party
Roger Birch (instructed by Blake Lapthorne) for ClaimantCatherine McGahey (instructed by Hampshire County Council) for DefendantSimon Butler for First Interested PartyHearing Hearing date: 28 November 2009
JudgmentPITCHFORD J:
[1]This is a challenge with the permission of the single judge to the verdict of HM Coroner for Portsmouth and South East Hampshire who, on 13 November 2008, inquired into the death of Russell Anthony Neal Jenkins. The Coroner returned a narrative verdict in the following terms:
“In late December 2006 Russell Anthony Neal Jenkins stepped on a plug of an electrical appliance in his home, injuring his left foot. He developed an infection in the wound of his foot which did not resolve itself and developed ultimately into gangrene. His condition deteriorated, particularly so in the last few days and hours of his life and, on 16 April 2007, he lapsed into an unconscious state and died during the night of 16/17 April 2007 at his home. At no stage following the injury to his foot did Russell Jenkins or anyone else on his behalf seek to obtain conventional medical advice or treatment for his condition. In consequence, Russell Jenkins’ condition was inappropriately and ineffectively treated by himself and by others and this led to his death.”
[2]The claimant challenges the coroner’s verdict on the ground that his verdict was perverse. It is the claimant’s case that the only rational verdict would have been that the deceased was unlawfully killed, the foundation for such a verdict being manslaughter by the gross negligence of Cherie Elizabeth Cameron.[3]Ms Cameron, the first interested party, was represented before me, as were the claimant and the defendant. The second interested party did not appear and has taken no part in the proceedings.[4]It is common ground that before the coroner could return a verdict of unlawful killing on the ground proposed he would have to be sure that:(1) Ms Cameron owed a duty of care towards Mr Jenkins;(2) Ms Cameron was in breach of that duty of care;(3) The act or omission which constituted the breach of duty was a significant cause of death;(4) Ms Cameron’s negligence was criminal in quality.[5]I have been provided with the statements submitted to the coroner and the transcript of the hearing before him. The principal witnesses at the inquest were: Mrs Elaine Jenkins, the deceased’s mother, Robert Jenkins, the deceased’s brother, Michael Cooter, a friend of the deceased, Susan Finn, a homeopath and friend of the deceased, Cherie Cameron, the deceased’s partner, Dr Dale, the deceased’s general practitioner, Mr Mark Pemberton, consultant vascular surgeon, and Dr Guy Cunliffe, general practitioner who attended the body after death.[6]Mr Jenkins was a 52 year old man who was born in Merthyr Tydfil. In his early years he worked in a family business and then in London as a credit controller. He moved to Southsea in the 1980s where he started a wine bar and, latterly, lived, owned and worked at The Quiet Mind Centre at 32 Lorne Road. His parents now live in Cardiff and his brother Robert lives in Spain. Mr Jenkins died shortly after midnight on Tuesday 17 April 2007. The autopsy, conducted by Dr David Poller, revealed that the deceased had suffered from an ulcer about 2.8 cms in size on the sole of his left foot. The foot and lower leg became gangrenous and the left leg was swollen. Mr Jenkins was diabetic and suffered undiagnosed ischemic heart disease. His condition could have resulted in poor circulation to the extremities which may have assisted skin necrosis and gangrene. Mr Jenkins developed septicaemia (infection in the blood stream) which spread rapidly, caused unconsciousness, and finally resulted in death. Had he received timely conventional medical treatment with antibiotic medicine and debridement of the dead tissue, or amputation, Mr Jenkins would have made a substantial recovery. Evidence at the Inquest[7]The story which emerged in the evidence was an unusual one the nature of which the coroner had never before encountered. Mr Jenkins’ diabetes was diagnosed in 1996. He attended his GP’s practice from time to time for advice and medication. He was sent regular reminders for check ups but from the end of 2001 he ceased to use conventional NHS services. After his death there was found in his home medicine for his diabetic condition prescribed in 2001 but unused. He had during 2001 received advice from his GP about the dangers of diabetic neuropathy, particularly as it affected the feet. He was told that ulcers and any breaking of the skin could be dangerous but would be effectively dealt with by antibiotics. He was advised that any break in the skin should be reported promptly for treatment. The surgery was aware of Mr Jenkins’ interest in alternative medicine and Dr Dale had visited him at his clinic at The Quiet Mind Centre. There, Mr Jenkins offered treatments of Reiki, aromatherapy and reflexology. Mr Jenkins never told his family about his diabetes.[8]Michael Cooter met Mr Jenkins in 1992 and became a regular visitor to The Stable Centre in Titchfield where Mr Jenkins led a meditation class. Mr Cooter followed him to classes at the Quiet Mind Centre. Mr Cooter regarded himself as a close friend. He described Mr Jenkins as a benevolent, compassionate and inspiring person. Mr Jenkins believed in personal development by concentrating upon the inner self. He believed that physical ailments were symptomatic of emotional turmoil. His treatments were intended to address spiritual well being. His spiritual life was very important to him. He developed a technique which witnesses described at ‘checking’ or ‘dousing’. This was a state of mind induced in order to receive answers or approval from his inner being to a proposal or a course of action. A signal that he was engaged in this process was a movement of his fingers. Mr Jenkins did not disclose to Mr Cooter, either, that he was a diabetic.[9]Catherine Smiles had known Mr Jenkins since 1994. She attended his classes and later did secretarial work for him by way of payment. Mr Jenkins told her that when consulting his inner self he would experience a sensation in his right middle finger. As time went on Mr Jenkins became more and more absorbed in this process and had implicit trust in it. In her view Mr Jenkins was a fatalist. Ms Smiles suffered from ME and consulted Mr Jenkins about it. He said it was part of her “path” and if it was “meant” to get better it would.[10]Susan Finn is a homeopath who knew Mr Jenkins for about 18 years before his death. She had a friend called Jeannette who stayed at the Quiet Mind Centre for a time. She had attended Mr Jenkins’ classes with her husband in 2004 and was an occasional visitor. Mrs Finn would recommend homeopathic remedies for her friend Jeannette and Jeannette would ask Mr Jenkins to “check” them for her.[11]Cherie Cameron is a Registered General Nurse who spent the 12 years of her professional career as a nurse in operating theatres in Portsmouth and Southampton. She met Mr Jenkins in 2000 as a client. She attended meditation classes, and learned about energy healing and flower essences. In 2002, when her marriage broke down, Ms Cameron moved into the Quiet Mind Centre, at first as a tenant. She continued to work as a nurse until 2004 but then ceased conventional nursing to concentrate upon alternative therapies. A close personal relationship developed between Ms Cameron and Mr Jenkins and they called themselves partners. He told her that he was a borderline diabetic. Throughout their time together Mr Jenkins never consulted his GP and took no conventional medicines except, on one occasion according to Mr Cooter, ibuprofen, but early on he did see a homeopathic doctor, Dr Kenyon. Ms Cameron confirmed Mr Jenkins’ trust in his communications with his inner self. He became so absorbed in it that he would consult on every decision in his life, including matters to do with health. He was, in Ms Cameron’s view, a clairvoyant and a psychic. Mr Jenkins taught the “checking” technique to Ms Cameron and he would ask her to confirm a decision he proposed to make by checking it herself.[12]In March 2005, after Mr Jenkins had been digging a pet’s grave in the garden, he complained of a blister on his foot. It became numb and infected. Ms Cameron realised from her training that it was consistent with diabetic neuropathy. Mr Jenkins treated it with magnesium sulphate which he thought acted to draw out the infected material. They discussed whether he should obtain an antibiotic but Mr Jenkins was adamant after checking with his inner being that he did not want conventional medicine. Although the sore became black and ulcerated it eventually healed. Mr Jenkins continued to suffer ulcers on his feet but would not consider visiting the doctor.[13]In December 2006 Mr Jenkins stepped on an electric plug. A bruise developed and the foot became swollen. Again the similarity of symptoms with diabetic neuropathy occurred to Ms Cameron. A visit to the doctor for an antibiotic was discussed but after consulting his inner being Mr Jenkins would always reject it. Mr Cooter saw the foot. He described it as angry looking. He discussed it with Mr Jenkins who seemed to regard it as a symptom of something emotional. The subject of seeking conventional medical help was not raised.[14]In late February 2007 Ms Cameron went to the United States for two weeks. When she returned in March she went with Mrs Finn to India where Jeannette’s daughter was getting married. Mr Jenkins was alone at the Quiet Mind Centre. He had a telephone in his bedroom. It is a matter of some significance to the Coroner’s assessment of the evidence that during Ms Cameron’s absence for a period of some two to three weeks he chose to seek no medical help.During the trip to India Ms Cameron expressed her anxiety about the condition of Mr Jenkins’ foot to Mrs Finn. She told Mrs Finn that she thought there was a risk of gangrene but that Mr Jenkins was adamant he would not see a doctor. He was treating the open sore with magnesium sulphate as he had before. Mr Cooter visited Mr Jenkins in March after Ms Cameron’s return. Mr Jenkins appeared to be in good spirits, although he was hobbling about. He treated it as a “minor”, if troublesome, thing.[15]When they had gone to India Mrs Finn had left her mobile phone at the Centre. In early April she called to collect it. Mr Jenkins was hobbling on his foot. He said he was consulting his inner being whether to show Mrs Finn his foot and decided that he would. Mrs Finn said the sore area was white and weeping but did not look septic. Mr Jenkins said he was getting some pain. He asked Mrs Finn whether she could suggest anything. Mrs Finn asked him whether he should see a doctor and he said “No, I am not to see a doctor”, implying that this was the course he chose after consulting his inner being. During this conversation Mrs Finn described Mr Jenkins as normal and rational. She suggested Manuka honey which Mrs Finn had used for ulcerated skin conditions.[16]Mr Cooter visited Mr Jenkins on 6 April for a massage. Mr Jenkins said he thought he had a cold coming on. There was no mention of his foot. The Coroner asked Mr Cooter whether he might have advised Mr Jenkins to see a doctor had he known the condition of his foot. Mr Cooter replied, “In my mind, it would have been in the same league as trying to convince a Jehovah’s Witness to have a blood transfusion.” When questioned by Mr Birch Mr Cooter agreed that Mr Jenkins would not be “as hard and fast as that”. However, he confirmed that Mr Jenkins would always consult his inner being and he would act as his inner being deemed appropriate. He had said in his witness statement that, in his view, Mr Jenkins would accept the instruction of his inner guidance even if it was apparent that it would lead to his death. Mr Cooter was asked whether this was still his view. He replied, “To him, integrity was everything.”[17]On 7 April Mrs Finn received a telephone call from Ms Cameron saying that both she and Mr Jenkins had stinking colds. Ms Cameron sounded bunged up with cold. Ms Cameron told the Coroner that she did not make the connection between Mr Jenkins’ cold symptoms and the foot infection because she thought that Mr Jenkins had caught her cold. On 12 April Mr Jenkins sent an email to clients cancelling his appointments. On 13 April he went to bed to rest his foot.[18]On Saturday 15 April Mrs Finn visited. Mr Jenkins was in bed. Ms Cameron went to ask him if Mrs Finn could come up. She went in. He sounded as though he had a cold and was hoarse. He again said he was not going to see a doctor and was not going to hospital, as though anticipating that Mrs Finn would again suggest the doctor. He did not want anyone to know that there was anything wrong with his foot. He complained of a sore head and throat. By now, Mr Jenkins’ toes were discoloured and his foot was swollen. There was a smell in the room indicating infection. There was some blood on the sheets which Ms Cameron told the Coroner she was replacing and washing from time to time. Mrs Finn offered Mr Jenkins some herbal remedies for his cold, for the ulceration, and for pain relief. Before accepting them Mr Jenkins consulted his inner being. He was coherent, quiet, lucid and not delirious.[19]The coroner asked Ms Cameron about this. The following passage took place:
“Q: By the time Mrs Finn came round you had looked at his foot…? A: Yes Q: And you had seen the toes blackening? A: Yes Q: Had it occurred to you to say to Russell, “That looks like it might be turning gangrenous?”
A: We had conversations about the state of it, yes, and gangrene was mentioned. Q: Did you express it to him in those terms? A: Yes. Q: What was his reaction? A:
“Yes, sweetheart, it does, doesn’t it?”
Q: Is that all? A: Yes. Q: He wasn’t perturbed about it? A: Yes, he was perturbed about it. Q: And at that stage was conventional treatment discussed between the two of you before Mrs Finn arrived that day? A: Yes. Q: And was it rejected by Russell? A: Yes. Q: What influence did you have on that decision? A: I didn’t have any influence on it.” A: Yes Q: And you had seen the toes blackening? A: Yes Q: Did you express it to him in those terms? Q: What was his reaction? A:
“Yes, sweetheart, it does, doesn’t it?”
Q: Is that all? Q: He wasn’t perturbed about it? Q: And was it rejected by Russell? Q: What influence did you have on that decision? A: I didn’t have any influence on it.”

Q: What influence did you have on that decision?

[20]On Monday 16 April Mrs Finn again went to see Mr Jenkins. Ms Cameron had sounded tired on the telephone. When she arrived in the afternoon Ms Cameron told her that Mr Jenkins’ foot was looking darker and another toe had gone black. He was, however, still drinking liquids. She asked whether Mrs Finn wanted to see him. They went in together. Mr Jenkins seemed half asleep and half awake. His eyes were open. There was an unpleasant smell in the room. She could see that his foot was discoloured and swollen. It did not look good. He was still saying that he was not going to see a doctor. According to Mrs Finn, Ms Cameron did a checking and she confirmed that he was not going to see a doctor. That is what Mr Jenkins wanted. Mrs Finn’s view was that Mr Jenkins would end up in hospital anyway because Ms Cameron would not be able to cope. Mrs Finn changed Mr Jenkins’ herbal remedies with his agreement.[21]Ms Cameron said that if Mr Jenkins had not declined the assistance of a doctor she would have called one. Her respect for his wishes overrode her concerns for his condition. He knew that gangrene was potentially fatal but he said he would “continue”. At that stage he was still able to use the bathroom with her assistance.[22]During the evening of Monday 16 April Ms Cameron again raised the question whether to call the doctor or an ambulance. Mr Jenkins replied, “No, no, no, no” and was shaking his head. Ms Cameron said that he asked her to help him to keep in his heart space. This was not something he said but she knew what he wanted. He was placing his hand over his chest. He had said in the past how important it was to stay in the heart space in one’s final moments. They sang chants together. At one stage he urinated into a bottle. They continued to chant. The time came when Mr Jenkins’ voice tailed off, his breathing stopped and Ms Cameron knew he was dead. Despite her knowledge of the risks Mr Jenkins was taking Ms Cameron said she was in shock. She had not expected him to die. She called Mrs Finn who went to her. Dr Cunliffe was called just before 2 am. He confirmed that Ms Cameron was in a state of shock. On his enquiry why she had not called help she told him that they had talked about it but he had refused. She said that she did not know what she was going to say to Mr Jenkins’ family because “we” have been lying to them, by which she meant that both she and Mr Jenkins had been telling them in Mr Jenkins’ final days that he had a cold virus. She had done this on Mr Jenkins’ instructions because he did not want them to know and to worry about him. Nevertheless, although Ms Cameron knew of the risks of gangrene and had discussed them with Mr Jenkins she had not expected him to die. He had got better previously. When pressed she said she supposed that like Mr Jenkins she had been hoping for a miracle.[23]Mrs Elaine Jenkins had spoken to her son on 12 April by telephone. He told her he had a cold and it might be a flu virus. He felt very weak and was going to bed. He made no mention of his foot and told her not to worry. On the afternoon of Sunday, 15 April she had spoken to Cherie who had told her much the same thing. She said she had been a theatre nurse and he would be all right in a few days, “He’ll be fine”.[24]Mr Robert Jenkins, the deceased’s brother, gave evidence that on the same day he left a message on his brother’s answerphone. Ms Cameron returned the call. She told him that Russell had a virus. She was sure from her medical training that he would be up and about in a week. He asked whether Russell had seen a doctor. She said he had seen a homeopath. Mr Jenkins suggested his brother might see an orthodox doctor and Ms Cameron replied, “Out of the question”. She continued that she and Russell had considered the treatment carefully. Antibiotics would not cure a virus and hospitals were full of MRSA. He was left with the impression that his brother was being well looked after.[25]In her witness statement to the coroner Ms Cameron had not mentioned the conversations with Mr Jenkins about the risk of gangrene and its consequences. Ms Cameron was asked about this by Mr Birch on behalf of the family. She said that she had answered all the questions put to her at the time. Ms Cameron made two statements on 19 April 2007 and 21 September 2007. They do appear to be a pure narrative of events and do not delve into matters which were undoubtedly relevant to the decision not to call assistance.[26]Mr Pemberton is a consultant vascular surgeon. He would expect that a person in Mr Jenkins’ condition would be in a state of toxic confusion for a period of between 12 hours and 5 days before death. He said in answer to the coroner:
“Ultimately the sudden progression of his infection appears to have caught him and his partner unawares, literally, in the speed of its progression. Gangrene, with systemic infection, in other words, leading to septicaemia…invariably reduces mental capacity because of a reduction of brain perfusion with oxygenated blood. In contract, localised infection is unlikely to have any significant effect on mental capacity. Once unconscious it is quite possible and indeed likely that Mr Jenkins would have died whatever treatment he had been given. However, the change from consciousness to unconsciousness is a progressive rather than a stepwise one, so it is quite likely that there was a period of hours during which his level of consciousness was declining, during which appropriate treatment could still have been life saving.”
[27]In view of the evidence given by Ms Cameron that Mr Jenkins appeared to be drifting in and out of consciousness during the last two hours of his life, the coroner asked Mr Pemberton what was the prospect of Mr Jenkins surviving if medical assistance had been sought when he reached that state. Mr Pemberton said he thought was there would have been a 10%-30% chance of survival. The Coroner’s Reasons[28]In his witness statement of 3 March 2009 the Coroner set out his reasons. At paragraph 7 he said:
“A critical issue was whether Ms Cameron (or possibly Ms Finn) should have obtained medical assistance for the deceased. It was common ground that the deceased had, until 16 April 2007, repeatedly refused to seek medical attention. It was not suggested, nor did I consider, that any person owed a duty of care to him to seek medical attention when he was competent to refuse it and was refusing it. The questions were: (i) whether a period arose in which the deceased was not competent to make his own decisions; and, if so (ii) whether Ms Cameron, Ms Finn or any other person at that stage owed a duty of care to the deceased to obtain medical attention for him.” (i) whether a period arose in which the deceased was not competent to make his own decisions; and, if so (ii) whether Ms Cameron, Ms Finn or any other person at that stage owed a duty of care to the deceased to obtain medical attention for him.”
[29]The Coroner directed his mind both to suicide and unlawful killing. He concluded that there was no evidence that the deceased had any thoughts of suicide. He turned to “unlawful killing” the basis for which could only be gross negligence manslaughter committed by Mrs Finn or Ms Cameron. Since the claimant’s case has been directed solely towards the position of Ms Cameron I shall confine my own consideration of the evidence accordingly. It is common ground that the Coroner correctly directed himself that in order to reach a verdict of unlawful killing, he would have to determine beyond reasonable doubt that:(i) There was duty of care owed by Ms Cameron towards Mr Jenkins;(ii) Ms Cameron was in breach of her duty of care;(iii) The breach caused the death of the deceased;(iv) The breach of duty was gross and therefore criminal. The Coroner noted that there was evidence from which it was open to him to conclude that Ms Cameron had assumed a duty of care towards Mr Jenkins. Ms Cameron was in April 2007 dressing his wound. On 15 April 2007 Ms Cameron had told Mr Robert Jenkins that she had considered Russell’s course of treatment. Ms Cameron had told Mrs Finn that she was in tune with her inner being which was telling her that all would be all right. Ms Cameron herself accepted in evidence that on 16 April 2007 she was in charge of the deceased and was caring for him.[30]However, there was also evidence which was to the contrary effect. Mr Jenkins himself had determined his treatment with magnesium sulphate. Despite conversations between Ms Cameron and Mr Jenkins about the use of antibiotics and the danger of gangrene Mr Jenkins declined to see a doctor. During February and March 2007 Mr Jenkins was treating himself. Ms Cameron was not present. There was cogent evidence, not confined to Ms Cameron, that Mr Jenkins was not prepared to accept conventional medical treatment for his ulcer. Mr Jenkins was himself consulting his inner being as to the course of treatment he would adopt. The Coroner accepted the evidence of Mrs Finn that on 16 April 2007 Mr Jenkins had expressed the determination not to seek medical help.[31]The Coroner concluded that it was not open to him to find that Ms Cameron had a duty to summon help against the express wishes of the deceased.[32]The Coroner concluded that if he was wrong in his conclusion that there was no duty of care he could not conclude to the required standard that Ms Cameron was in breach. There was no duty to call medical help against the wishes of the deceased expressed, he found, at least until the last two hours or so before his death. He could not be sure that in any event Ms Cameron had not discharged the duty upon her by pressing Mr Jenkins to consider medical help.[33]The Coroner considered the submission made on behalf of the family that the time came when Mr Jenkins was no longer able to express his wishes. He did not reject Ms Cameron’s evidence that she was obeying the deceased’s wishes throughout. Although Mr Pemberton had given evidence that he would expect a person in the deceased’s condition to fall into a toxic confusional state at some time between 12 hours and 5 days before death he also said that such a person would have moments of confusion interrupted by moments of relative lucidity. Mr Jenkins had been drinking liquids and had passed urine not long before his death. In Mr Pemberton’s view, Mr Jenkins had not suffered from septic shock. The Coroner accepted Ms Cameron’s evidence describing the deceased’s last hours as feasible. He concluded that the deceased may have been able, as Ms Cameron asserted, to make his wishes known during his last hours.[34]In the alternative, if he was wrong about that, and Mr Jenkins was unconscious during the last two hours of his life, the evidence of Mr Pemberton was that if help had been summoned there was a 10%-30% chance of saving Mr Jenkins’ life. The coroner concluded that he could not be sure that the failure to summon help during that two hour period made a significant contribution to Mr Jenkins’ death. The Claimant’s Case[35]The claimant recognises the significance of Mr Jenkins’ own wishes. However, Mr Birch submitted that an expression of preference by the individual to whom a duty of care is owed does not override the duty to take care. In Stone and Dobinson [1977] 1QB 354, the male defendant, Stone, and his mentally subnormal son lived in Stone’s house with the female defendant, Dobinson. Stone’s sister, Fanny, came to live as a lodger. She neglected herself to such an extent that she became helplessly infirm. Fanny refused to supply the name of her GP because she thought she might be ‘put away’ if she did. She refused to leave her bed. Although they knew that the sister was in poor condition Stone and Dobinson failed to obtain help. In particular, they did not say anything to the social worker who visited the son. Dobinson attempted with a neighbour to wash the sister. The neighbour suggested she should contact social services and the landlord of their local pub which they visited every day advised calling a doctor. Nothing was done and three weeks later the sister died from the effects of immobilisation, infected bed sores and malnutrition. The prosecution case was that the defendants had undertaken a duty of care towards a person who could not care for herself. The defendants appealed on the ground that the deterioration in Fanny’s condition was not something for which they could be responsible. The Court of Appeal disagreed. Geoffrey Lane LJ, at page 361, said:
“This was not a situation analogous to the drowning stranger. They did make efforts to care…The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by July 19, the appellants were, in the circumstances, obliged to summon help or else care for Fanny themselves.”
[36]In In re Land, decd [2007] 1 WLR 1009 the claimant had cared for his elderly mother who “shunned any type of ‘officialdom’ including doctors and home helps.” However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying in her own excrement. The claimant pleaded guilty to manslaughter. The issue was whether he was nevertheless entitled to claim financial provision from the deceased’s estate under section 2 Inheritance (Provision for Family and Dependants) Act 1975.[37]In R v. Hood [2004] 1 Cr App R (s) 73 the defendant was convicted of the manslaughter by gross negligence of his wife. On 14 March 2002 she had suffered a fall at home fracturing a number of bones including her right leg and hip. The defendant sought no medical help until 4 April 2002 by which time his wife was debilitated, very thin and suffering pressure sores. She did not survive her admission to hospital. The defendant appealed against sentence. The fact that the deceased was unwilling to go to hospital and that she could have sounded an alarm which would have been heard by the warden at their home were treated as mitigating features.[38]Mr Birch seeks to extract a principle from these cases, namely that a duty to summon help may be owed notwithstanding the deceased’s own refusal to accept that help. I agree that the condition of the ‘patient’ may be such that he or she is incapable of making an informed decision, but it does not seem to me that these cases are determinative of the issue in the present case. In all of them the deceased had become incapable of taking care of and making decisions for themselves. It was thus incumbent upon the carers to take steps to save them from their helplessness. The claimant in the case of In re Land pleaded guilty to manslaughter. He had acknowledged that he should have but had not attended to his mother’s bed sores. In Stone and Dobinson and Hood the jury were invited to decide whether in the circumstances, including the deceased’s own wishes, the defendant had assumed the duty to take care and, therefore, to summon help.[39]What, however, if a ‘patient’ with full capacity is adamant that no help will be accepted? In HE v. A Hospital NHS Trust, AE by her litigation Friend the Official Solicitor [2003] EWHC 1017 (Fam) Munby J gave reasons for his decision to permit AE’s treating doctors to infuse her with blood, if necessary, notwithstanding the existence of a living will in which she refused, in advance, to accept the transfusion of blood. He described the present state of the law concerning the autonomy of the individual as follows:
“19. There is now quite a substantial body of authority relevant to the issues I have to consider. It is all too well-known to require either description or much analysis: see In re T (Adult: Refusal of Treatment) [1993] Fam 95 , Airedale NHS Trust v Bland [1993] AC 789 , In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 , Re MB (Medical Treatment) [1997] 2 FLR 426 , St George's Healthcare NHS Trust v S [1999] Fam 26 , Re AK (Medical Treatment: Consent) [2001] 1 FLR 129 and Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam), [2002] 1 FLR 1090 . 20. Some propositions are, in my judgment, now so well established in our law as no longer to require either justification or elaborate citation of authority. They are: • i) A competent adult patient has an absolute right to refuse consent to any medical treatment or invasive procedure, whether the reasons are rational, irrational, unknown or non-existent, and even if the result of refusal is the certainty of death. I agree with Professor Andrew Grubb's observation (see [2002] Med L Rev 201 at 203) that: “English law could not be clearer. A competent adult patient once properly informed, has the unassailable legal right to refuse any or all medical treatment or care.” • ii) Consistently with this, a competent adult patient's anticipatory refusal of consent (a so-called ‘advance directive’ or ‘living will’ ) remains binding and effective notwithstanding that the patient has subsequently become and remains incompetent. • iii) An adult is presumed to have capacity, so the burden of proof is on those who seek to rebut the presumption and who assert a lack of capacity. It is therefore for those who assert that an adult was not competent at the time he made his advance directive to prove that fact.”
[40]Following the hearing, counsel for Ms Cameron forwarded to me, without comment, the judgments in In re T (Adult: Refusal of Treatment) [1993] Fam 95 and W [2002] EWHC 901 (Fam). It is not necessary for me to examine the authorities in detail. They support the propositions of law which Munby J regarded as settled without the need for further citation of authority. Mr Birch thought it right to deliver further submissions to me in writing which were, in effect, a repetition of submissions made orally.[41]Mr Birch sought to persuade me that the evidence before the Coroner established an obvious case that it was not Mr Jenkins who was exercising a free and informed choice whether to accept medical treatment but Ms Cameron who was preventing him from making that choice. She did so by preventing contact between Mr Jenkins and any person, including his family, who might question his capacity to make a choice. Without citing authority Mr Birch submits that it would be contrary to public policy to permit someone in Ms Cameron’s position to exclude persons from the deceased’s presence for the purpose of avoiding the critical enquiry whether Mr Jenkins understood the consequences of what he was doing. Ms Cameron’s evidence that she was complying with Mr Jenkins’ wishes was not credible and should have been disbelieved. Mr Birch submitted that even if the Coroner was right to hold that while Mr Jenkins was conscious and making his own decisions there was no duty or no breach of duty, there came a time when he was unconscious and was not making his own decisions. Ms Cameron was obliged to seek help and her failure to do so plainly made a significant contribution to death because there was a definite chance that Mr Jenkins could have been turned around even at that late stage. Analysis and Conclusion[42]I appreciate why it is that Mr Jenkins’ family is convinced that they have been deliberately excluded from helping their son to live. There is no question that Ms Cameron lied to them on 15 April 2007 and she admitted to Dr Cunliffe lying to them when he attended shortly after Mr Jenkins’ death. However, the issue for the Coroner was not whether there was an arguable case of unlawful killing but whether he could be sure.[43]All matters of fact were for the Coroner. He had the inestimable benefit of both observing and questioning the witnesses, Ms Cameron in particular. I should not replace the Coroner’s view of the witnesses with my own unless there is evidence that the Coroner’s view was perverse. That Mr Russell Jenkins had his own strongly held, if idiosyncratic, views about self-care was not just the evidence of Ms Cameron. It was also the evidence of Mr Cooter and Mrs Finn. The evidence of his general practitioner, Dr Dale, established that Mr Jenkins had received the conventional warnings given by the practice to diabetic patients: that foot injuries should receive immediate attention and antibiotic medicine would cure infection. Mr Jenkins was an intelligent man. It cannot be assumed that he was ignorant of the possible consequences of infected wounds, gangrene and septicaemia. Yet, the evidence before the Coroner was that Mr Jenkins was resolute in his determination not to accept conventional medical help. He had suffered pain and discomfort for a period of some 4 months, and his ulcerated and swollen foot became gradually worse, but on no occasion did he choose to follow the advice he had been given by his GP practice in 2001. The evidence of Mr Jenkins’ implacability, given by Ms Cameron, Mrs Finn and, to an extent, by Mr Cooter, might have seemed troublesome were it not for the undeniable fact that for a period of some three weeks during Ms Cameron’s absence Mr Jenkins could have chosen, but did not choose, to pick up the telephone and ask for help. In circumstances in which it was being suggested to Ms Cameron that she had oblique motives for depriving Mr Jenkins of conventional medical advice, that period of weeks was of importance to the Coroner.[44]The evidence before the Coroner was that Ms Cameron and Mr Jenkins were well matched. There is not a hint that either dominated the other. There appears to be little doubt that Ms Cameron regarded Mr Jenkins as her spiritual teacher. It was he who taught her the technique of “checking”.[45]Ms Cameron was subjected to searching questions both by the Coroner and by Mr Birch. The Coroner was faced with the decision whether he should accept or reject Ms Cameron’s evidence about the final hours of Mr Jenkins’ life. In reaching his conclusion the coroner had the advantage of hearing the evidence of Mrs Finn who was present on 16 April when Mr Jenkins was still adamant that he would not receive medical help. In my judgement the Coroner cannot be criticised for reaching a decision that he could not reject Ms Cameron’s evidence. Once he had reached that decision his outlook upon the telephone conversations of 15 April was bound to be affected. Mr Jenkins had himself chosen to say nothing to his mother about the festering wound upon his foot. That fact lent support to Ms Cameron’s insistence that the only reason she lied to family members was because he told her to. Mrs Finn also told the Coroner that Mr Jenkins instructed her that no-one in the Quiet Mind centre was to know about his foot. They were told only about his cold. That too was consistent with Mr Jenkins’ attitude towards the family.[46]A further significance of the Coroner’s acceptance of Ms Cameron’s evidence was that it revealed Mr Jenkins knew the extent of the risk he was taking, namely the onset of gangrene. Until the last day Mr Jenkins was able to make his way to the bathroom to relieve himself. His wound was suppurating and his bedclothes needed washing. He cannot have failed to notice the smell of infection. It would have been remarkable, and not just suspicious, had there not been conversations between Ms Cameron and Mr Jenkins about the seriousness of his condition. Ms Cameron’s account was that they did discuss both gangrene and antibiotics but Mr Jenkins would not hear of it. She told the Coroner, and the coroner accepted, that had he not been adamant she would have called for help. She respected his wishes.[47]Mr Pemberton was asked by Mr Birch to look at the photographs of Mr Jenkins’ foot taken post mortem. He was asked what would have been Mr Jenkins’ state of mind during the final 24 hours of his life. He replied:
“So, probably somewhat variable depending on things like his temperature. If his temperature was up, his mental capacity would be reduced. If he had drink [sic] it might have made him more sensible but he would have been declining over that time. That is the short answer. Perhaps with moments of confusion interrupted by moments of lucidity.”
He would have expected a toxic confusional state for a period of anything between 12 hours and 5 days before death. On the other hand, in answer to the Coroner, Mr Pemberton later gave evidence:
“He appears to have passed urine within hours of death which implies that he hasn’t got renal failure which is part of septic shock…”
As to the prospects for survival had help been called within two hours before Mr Jenkins’ death, Mr Pemberton said, “I have gone [to] 10%-30% and I will stick to that, so the answer is, yes, there is a definite chance that he could have been turned around even at that late stage.”[48]The evidence from Mr Pemberton was not conclusive one way or the other as to whether Mr Jenkins would have been lucid or confused up to the last two hours before death. Ms Cameron’s evidence was that Mr Jenkins had refused outside help during the evening of 16 April. About two hours before he died he urinated into a bottle. She said that she knew what Mr Jenkins wanted when he placed his hand over his heart. He wanted her to help him to “stay in his heart space”. They sang chants together until the moments before he died. The Coroner reached the following conclusion:
“Taking all the evidence together, I was prepared to accept Ms Cameron’s account of the deceased’s last hours as feasible. I took into account in particular Mr Pemberton’s evidence about the lucid intervals that might be expected; I could not in the circumstances find beyond reasonable doubt that the deceased had lost his capacity in the hours before he died to decide whether to seek medical help. I therefore decided to accept, on the balance of probabilities, Ms Cameron’s account (supported by that of Ms Finn) of the deceased’s ability to make decisions and communicate them in his last hours.”
[49]Had a jury been considering the same issue they would have been directed that they were not bound to accept the opinion of Mr Pemberton which was, in any event, equivocal as whether Mr Jenkins retained his lucidity for sufficient periods of time to justify the conclusion that he was able to express his own wishes; that they were entitled to accept, if they thought it right, Ms Cameron’s evidence about the last two hours of Mr Jenkins’ life. The Coroner decided that he could not exclude Ms Cameron’s account. On a balance of probability he thought it was true. In my judgement, that conclusion, also, was open to the Coroner on the evidence he had heard. Since the Coroner found that he could not exclude the possibility that Mr Jenkins was at all relevant times exercising his own free will, he could not find that Ms Cameron was under a duty to act against those wishes.[50]If he was wrong about that, if Mr Jenkins, contrary to the Coroner’s finding, was not during the last two hours capable of exercising his free choice, because he lacked capacity to do so, then I accept Mr Birch’s submission that Ms Cameron was no longer bound by Mr Jenkins’ previous expressions of will and she was under a duty to seek help. My reason for accepting Mr Birch’s submission in this regard is that it was at no time suggested by Ms Cameron that she had been instructed not to summon help under any circumstances, for example, if Mr Jenkins lapsed into unconsciousness. However, that was a hypothetical eventuality because the coroner had already accepted Ms Cameron’s evidence that Mr Jenkins was at all times capable of making his will known and did make his will known.[51]However, the Coroner considered the eventuality that he was wrong. He posed the question whether Ms Cameron’s failure to summon medical help about two hours before Mr Jenkins’ death would have made any significant contribution to death. He concluded that it would not. Mr Birch submits that he was wrong to do so because there was still a significant chance of survival. In my judgement, this question was capable of admitting more than one answer. On the Coroner’s view the overwhelming cause of death was the refusal of Mr Jenkins to contemplate outside help. If Mr Jenkins did lapse into unconsciousness two hours before his death, he was already suffering such an advanced state of septicaemia that he had a small statistical chance of survival. The alternative view is that the failure to seek help made certain what was already the highly probable consequence of Mr Jenkins’ choice. Since the Coroner had to be sure that Ms Cameron’s (presumed) breach of duty had more than a marginal effect upon Mr Jenkins’ chance of survival, it does not seem to me that his conclusion fell outside what was reasonable on the evidence.[52]The claimant has undertaken the burden of demonstrating that the Coroner’s verdict was perverse; that the Coroner could not reasonably have come to the conclusions he did. That burden has not been discharged and the claim must be dismissed.