Dowler, R (on the application of) v Coroner for North London [2009] EWHC 3300 (Admin)

[2009] EWHC 3300 (Admin)Case No CO/9226/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 6 November 2009
Strand
London WC2
B E F O R E:
MRS JUSTICE DOBBS
Between
THE QUEEN ON THE APPLICATION OF DR DOWLERClaimant-v-
Between
CORONER FOR NORTH LONDONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited165 Fleet Street, London EC4 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Bridget Dolan appeared for Claimant for The Defendant was not represented, did not attend
J U D G M E N T
[1]MRS JUSTICE DOBBS: The appellant, who is a general practitioner, seeks an order under Section 13 of the Coroners Act 1988 pursuant to a fiat of the Attorney General dated 21 July 2009 to quash the inquisition that took place on 18 September 2009 into the death of Mr Suji, whose death took place in January 2008, and applies for a new inquest to be held before a different coroner.[2]Mr Suji suffered from paranoid schizophrenia and was maintained on anti-psychotic medication. He lived in a staffed accommodation hostel. He was found dead at the hostel on 29 May 2008. He died from consequences of diabetic ketoacidosis, which is a rare side-effect of his prescribed medication, which was olanzapine. The inquest recorded that Mr Suji died from the recognised side-effect of the medical treatment he received, contributed to by neglect. This finding of neglect implicates the appellant who had attended the deceased two days before his death, on 27 May. The finding of neglect would appear to flow from the record Dr Dowler made about her visit on 27 May. Dr Dowler was not called to give evidence, did not attend the inquest, was not notified of the inquest and was not represented at the inquest.[3]On 14 July 2009, the coroner agreed that the inquisition should be quashed and a new inquest held to hear evidence from Dr Dowler and an expert. He has not agreed to a new coroner being appointed. This is the issue the court has to decide, although of course the court has to make a decision about the appropriateness of a new inquest.[4]It should be noted that as the coroner has agreed to a new inquest being held, this matter has been listed before a single judge rather than the full Divisional Court. In the circumstances this court considers this is an appropriate course of action in the light of the court's powers.[5]The two issues therefore are whether a new inquest should be held and the previous one quashed and, if so, whether a new inquest should be held by a different coroner.[6]The relevant law is set out in Section 13 of the Coroners Act:
"13 Order to hold inquest (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (the coroner concerned) either — (a) that he refuses or neglects to hold an inquest which ought to be held; or (b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held. (2) The High Court may — (a) order an inquest or, as the case may be, another inquest to be held into the death either — (i) by the coroner concerned; or (ii) by the coroner for another district in the same administrative area; (b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and (c) where an inquest has been held, quash the inquisition on that inquest. (3) In relation to an inquest held under subsection (2)(a)(ii) above, the coroner by whom it is held shall be treated for the purposes of this Act as if he were the coroner for the district of the coroner concerned."
[7]The skeleton argument of the claimant sets out a number of authorities which deal with the issue of the insufficiency of the inquiry and the interpretation of the words "necessary or desirable in the interests of justice" as set out in Section 13. The principles that can be derived from these authorities [are as follows]. In R v HM Coroner for Coventry ex p O'Reilly [1996] 3 ILR 48 it was said:
"An inquiry which leaves too many questions unanswered and too many issues unresolved is not a sufficient inquiry."
[8]In R (Bentley) v Coroner's District of Avon [2001] ILR 2005, Mr Justice Sullivan accepted the applicant's submissions that an inquest which does not hear evidence from the very witness whose behaviour was said to lack competence could not be described as a sufficient inquest.[9]Lord Justice Woolf, at page 35 of Rakin [1988] 1 QB 26 citing an earlier decision of Mr Justice Talbot, dealt with the issue of the words "necessary or desirable in the interests of justice" and observed that - "If the inquest had been so conducted or the circumstances tending to such that there was a real risk that justice has not been done, then there is impairment ..... It is right that the procedure provides that justice is done and is seen to be done. The court ought not to allow the inquisition to stand."[10]It is pointed out by the appellant that under the Coroners Rules, in particular Rule 20, those who may be implicated in the death or have their conduct called into question in the inquiry are accorded procedural privileges, such as examining witnesses at the inquest either in person or by an advocate. Rule 24 deals with notice to a person whose conduct is likely to be called into question. That person should have notice of the inquest even if not summoned to give evidence of such.[11]The grounds for the application are four-fold (this is in relation to the new inquest): the irregularity of proceedings, insufficiency of inquiry, discovery of new facts and the discovery of new expert evidence. They can be summarised shortly.[12]So far as irregularity of proceedings and insufficiency of inquiry is concerned, Dr Dowler was not called to give any evidence at the inquest in breach of Rule 20. Dr Dowler was not accorded the status of a properly interested person at the inquest. In breach of Rule 24, she was not given notice of the date and place of the inquest.[13]Insofar as discovery of new facts and evidence is concerned, the skeleton argument sets out a summary of the evidence that Dr Dowler would have given had she been given the opportunity to be present at the inquest. The evidence is to be found in the witness statement of Dr Dowler, which is in the bundle provided. This amounts, in the submission of the claimant, to new facts and evidence which were unknown to the coroner at the time of the inquest. Also, it is pointed out that Dr Dowler's handwritten notes of her consultation with Mr Suji were not before the coroner, the notes supporting the evidence in her witness statement.[14]There is now new expert evidence available in the form of an expert general practitioner's medical report which reviews the actions of Dr Dowler and considers whether her actions amounted to a lack of care and/or really serious failure.[15]The conclusion of this expert report was that Dr Dowler's assessment of care of Mr Suji was of high standard and that there was no requirement in the circumstances for an urgent test to be conducted before his death, on 29 May. The expert report was not in existence at the time of the inquest, and the coroner reached his conclusion that there had been neglect and a really serious failure on Dr Dowler's part without the benefit of such evidence. Putting it simply, the claimant submits that the matter has not been fully and properly investigated.[16]It is also important, desirable, and necessary in the interests of justice, that another inquest be held, submits the appellant, because the finding of the coroner impugns the expertise and professional standing of Dr Dowler, which is bound to affect the future conduct of her profession. It is submitted that on the new evidence, there is a high probability that a different verdict will ensue.[17]The decision on the first issue is clear. The section is satisfied on a number of grounds as set out by the appellant and, as has already been mentioned, the coroner has recognised that as such by agreeing to hold the new inquest. There will be a new inquest therefore.[18]The outstanding issue is whether it should be in front of a different coroner. No submissions have been made on behalf of the coroner who is aware of this hearing. As already indicated, the coroner's finding of contribution of neglect appears to have been based on an entry in the general practitioner's records showing that on 27 May Dr Dowler had considered that Mr Suji should undergo a fasting blood sugar test for screening for possible diabetes and recorded that the test should be carried out on an urgent basis. The test could not have been carried out on the same day, of course, because the patient was required to fast. It was not carried out on 28 May, the next day, and Mr Suji was found dead in the early hours of the morning of 29 May.[19]There was evidence before the inquest from the general practitioner who stated that "urgent" - so far as a blood test - in this context means within four to five days. It is submitted that there was no evidence presented at the inquest to suggest that Dr Dowler should have suspected that he was suffering from diabetic ketoacidosis at the time. But, despite this, the findings of the coroner in his summing up were as follows:
"(a) The urgency of the request for FPS was not made known to hostel staff; (b) to fail to undertake an FPS emergency in the circumstances amounted to a really serious failure to provide basic medical care. What was obvious was the need for an urgent FPS; (c) it is well established that diabetic ketoacidosis is a reversible condition provided it is recognised and treated as so."
That led to the coroner's conclusion that on the balance of probabilities the death was contributed to by neglect. He went on to say:
"There is no doubt that this was an avoidable death. Had the test been carried out, his condition would have been recognised."
This was in the absence of any evidence from Dr Dowler.[20]The first point to note about this is that the finding of the coroner is explicitly critical of the appellant. They are strong findings. The Law[21]The power under Section 13 is a discretionary one. Section 13 (2) allows the High Court to bring an inquest by the coroner concerned or by a coroner for another district, who is in a different area.[22]The appellant submits, that it is not necessary for the purpose of this case, that any bias has been demonstrated for the discretion to be exercised. In support of the submission, the appellant makes reference to R v HM Coroner ex p Tomlinson [1971] WLR 1475 where Lord Parker CJ (page 147 D) ordered that there should be a fresh inquest and in order to save the coroner embarrassment, that it should be heard by a different coroner. In that case there was no suggestion of bias or apparent bias by the appellant. Mr Justice James (further down that page) also found it preferable to have a new coroner on the basis that the approach of the coroner at the previous inquest had been incorrect.[23]There was reliance on R v HM Coroner for Coventry ex p O'Reilly [1996] ILR 48, where the allegation was an insufficiency of inquiry.

Lord Justice Otton (at page 56) said:

"I take the view that the family did not have a fair crack of the whip and that the evidence before us should be ventilated before a fresh hearing and preferably a different coroner."
[24]The appellant submits that this case would cause the embarrasment and therefore it would be better for the case to be heard by another coroner.[25]So far as apparent bias is concerned, although it is submitted that it is not necessary to show this for the discretion to be exercised, it is submitted that there has been apparent bias. The appellant set out the test for apparent bias as that in Gough [1993] AC 646, in the judgment of Lord Goff (at page 670) where he indicated that the same test should be applicable in all cases of apparent bias whatever the status of the tribunal. [Lord Goff said]: I prefer to state the test in terms of real danger and real likelihoood to ensure that the court is thinking in terms of possibility rather than probability of bias." He went on to say that - "The court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question in the sense that he might unfairly regard or have unfairly regarded the claimant ..... the case, this part of the issue under consideration by him."[26]There have been more recent cases which express the test of apparent bias in different terms but the essence is the same.[27]Being an officer of the court, it would be expected that a coroner should be able to avoid any actual bias and reconsider a case objectively. However, there are, in my judgment, good reasons for the case to be heard by a different coroner. They are set out in the skeleton argument of the appellant: firstly, because as an experienced coroner he should be seen to be well aware of his obligations under the Rules, yet he did not notify Dr Dowler of the inquest. He did not seek to elicit her evidence at the inquest. He also did not seek to permit her to answer any of the potential criticisms of her conduct. It is submitted that he showed bias in his approach in relation to the evidence and the examples are set out in the skeleton argument. Additionally the coroner's conclusions were adverse to Dr Dowler's conduct, identifying it as serious failing without having considered and given the opportunity to Dr Dowler to deal with the issues and her account of events. He appears to have closed his mind to both of these issues.[28]It is further submitted that he has now offered no explanation for his conduct to the court, and it might be implied that there is no regret or indeed any real explanation for his conduct.[29]The reasons why this court considers that it is necessary in the interests of justice for this case to be heard by another coroner are, first, to avoid embarrassment to the coroner, not least because of the criticism now made by the appellant of the conduct of the coroner; secondly, because there is at least a possibility of bias given the procedures which went before and the strong adverse findings made. It is arguable that there is a serious risk of the appeareance of bias even if there is no actual bias.[30]Moreover it seems to me that the position of the appellant also needs to be considered. She has been severely criticised by the coroner and yet is to give evidence before him. It would be difficult for her to feel confident that there was no risk of bias, be it only subconscious bias. She has - through her counsel - criticised the coroner and this puts her in an awkward position. This could affect her ability to do her case justice if she has to worry about these matters.[31]Therefore, in my judgment, it is necessary and desirable and appropriate that this case be heard by a different coroner.

Cited in 1 later judgment