Connah v Plymouth Hospitals NHS Trust & Ors [2010] EWHC 1727 (Admin)

Case No CO/6859/2009[2010] EWHC 1727 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/07/2010
Before
LORD JUSTICE LAWSMR JUSTICE COULSON
Between
Mr Jack ConnahClaimantPlymouth Hospitals NHS Trust (1)DefendantsHM Coroner for the County of Greater Manchester (2)DefendantHM Coroner for Plymouth & South West Devon (3)DefendantHM Coroner for the County of Cornwall (4)Defendant
Mr J Connah appeared in person for in personMiss Sarah Vaughan Jones QC (instructed by Bevan Brittan) for 1st DefendantMs Cathryn McGahey (instructed by Manchester City District) for 2nd DefendantMr Paul Matthews (instructed by Withers LLP) for 3rd DefendantMr Johnathan Hough (instructed by Cornwall Council Legal Services) for 4th DefendantHearing Hearing date: 21 May 2010
JudgmentLAWS LJ:INTRODUCTION
[1]In form this is an application brought with the fiat of the Attorney General issued on 12 May 2009 for an order under s.13 of the Coroners Act 1988 (the 1988 Act) that an inquest be held into the death of the claimant’s wife.[2]Mrs Connah, then aged 45, died at home in Cornwall on 9 March 1998. On 12 January 1998 she had fallen down a flight of stairs. Thereafter she experienced weakness in the right side and loss of speech. She was taken to Derriford Hospital at Plymouth. A CT scan showed lesions in the posterior left frontal lobe. A biopsy revealed a malignant brain tumour. She was given steroids to ease swelling. A course of radiotherapy with a head shell was recommended, to commence in early March. Her condition deteriorated and she was re-admitted to hospital. A repeat CT scan showed considerable enlargement of the tumour. In consequence it was decided to administer a shorter course of whole-brain palliative radiotherapy without a head shell. She attended the radiotherapy dept for that purpose on 20 February 1998 and the treatment was administered that afternoon. It was found that the cerebral oedema had worsened and no further radiotherapy was given. Mrs Connah was discharged home for palliative care, and as I have said died on 9 March. She was cremated. Her ashes were scattered in the River Tamar.[3]The claimant believes that the treatment his wife received made her worse, indeed was responsible for her death. He is convinced that she was given treatment prescribed for another patient, Valerie Robinson, who he says had died 17 days earlier; and that CT scans and X-rays which were disclosed by the NHS Trust responsible for the hospital (the first defendant in these proceedings: I will refer to it as the Trust) did not relate to his wife. In a skeleton argument of his own composition prepared for the hearing of this application and signed by him on 13 May 2010 he states (p. 11 paragraph 20):
“This is a clear cut case of MURDER committed by Employees of the Government within its National Health Service, its Judiciary without exception have Bungled every attempt to Bury it, Politicians the Attorney General and Senior Government Officials have ALL BEEN SUCKED INTO AND BY THE VORTEX GENERATED BY THIS CASE...”

THE NEGLIGENCE CLAIM

[4]In March 2001 the claimant began proceedings against the Trust for damages for clinical negligence. They were contested. There followed a major procedural battle. It is necessary, in order to understand the genesis of the present application, to give an abbreviated account of the history of those proceedings, although the claim was struck out as long ago as 22 April 2004. Much of what follows is taken from the judgment given in this court by Dyson LJ as he then was on 2 November 2006 ([2006] EWCA Civ 1616), upon the hearing of certain appeals brought by the claimant which I shall briefly describe.[5]Following a number of applications made in the action in 2002 by the claimant complaining of inadequate disclosure by the Trust, on 12 December 2000 District Judge Meredith ordered that the defence be struck out for failure to disclose Mrs Connah’s medical records. Judgment was ordered to be entered in favour of the claimant for damages to be assessed. Before the Trust’s appeal was heard there was a further confrontation concerning tapes of four court hearings, as regards which the claimant levelled accusations of misconduct against solicitors. That got nowhere. On 21 May 2003 HHJ Overend, the designated civil judge at the Torquay Newton Abbott County Court, allowed the Trust’s appeal against the strike-out order, and so the judgment which had been entered in favour of the claimant was set aside. HHJ Overend also directed that a preliminary issue be heard as to whether the scans disclosed by the Trust were those of Mrs Connah. Two days later the claimant filed a further application seeking judgment on the grounds that “fraudulent falsification of CT scans [had] taken place by the defendants”. That was adjourned pending the hearing ofthe preliminary issue, which came before Judge Overend on 19th September 2003. He had before him a joint statement of the experts in the case, as follows:
“the CT scans are all of the same patient and, as these are all compatible with the dental chart of Mrs Connah, they must all have been taken of [her].”
The claimant alleged that his expert (who had signed up to the opinion just stated) had been intimidated by the two other experts in the case. That did not impress Judge Overend, who found in favour of the respondent on the preliminary issue.[6]The claimant proceeded to issue an application under the Human Rights Act 1998 for an order that by his decisions the judge had interfered with his human rights. The Trust cross-applied for a civil restraint order. On 31 October 2003 Judge Overend struck out the human rights application and made a “Bhamjee” order against the claimant (Bhamjee v Forsdick [2002] EWCA Civ 1113, [2004] 1 WLR 88), debarring him from making any further application in the action without permission and further providing that if the claimant wished to apply for permission to make any further application, he must do so in writing to HHJ Overend himself who would deal with it on paper. The claimant sought to appeal against the Bhamjee order, but on 1 December 2003 HHJ Overend struck out the claimant’s notice of appeal on the grounds that the appellant had not sought permission in accordance with its provisions.[7]The claimant’s action was as I have said struck out on 22 April 2004, for failure to comply with unless orders made by HHJ Overend. Thereafter however the claimant returned to the procedural fray, writing a series of letters to the court. At length on 20 January 2006Judge Overend made the following[8]It appears that this order was made by HHJ Overend on the papers and on his own initiative. A copy was sent by second-class post to the appellant without even a covering letter. Neither he nor the Trust had been given any notice by the court that such an order would or might be made.[9]At length the Bhamjee order, the order of 1 December 2003 striking out the notice of appeal against the Bhamjee order, and the extended civil restraint order of 20 January 2006 were all appealed to the Court of Appeal; these were the proceedings that came before the court on 2 November 2006, with permission granted by Brooke LJ. As Dyson LJ recorded, the claimant accepted in this court that the Bhamjee order was justified, and his appeal against it was not pursued. For its part the Trust accepted that the judge should not have made the second order under appeal, that of 1 December 2003. There remained the extended civil restraint order. This court concluded that that order should not have been made either, for the following reasons (see per Dyson LJ at paragraphs 21 – 23): there was no justification for its having been made without notice; the material before the court did not justify the order – letters and telephone calls made by the claimant to the court were merely requests for a copy of an earlier letter and of certain transcripts, and were not unreasonable; in any event, no extended civil restraint order was justified.[10]While I have no doubt that the claimant was ill-served by HHJ Overend’s needlessly aggressive conduct of the case, matters might nonetheless have rested there. It is in my judgment significant that a skeleton argument drafted by counsel on behalf of the claimant for the hearing in the Court of Appeal on 2 November 2006 contained a footnote stating:
“The appellant has no intention of re-opening the substantive action at the hearing of this appeal... and it has never been suggested otherwise.”

THESE PROCEEDINGS

[11]However, although he has not in any formal sense sought to re-open the common law claim against the Trust, the claimant has by no means let the matter rest there. As I have indicated, on 12 May 2009 he obtained the fiat of the Attorney General to bring proceedings under s.13 of the Coroners Act 1988 for an order that an inquest be held into the death of his wife. This is the application now before the court. The proceedings were issued on 23 June 2009. The claimant has named four defendants. The first is the Trust. The second defendant was the coroner for Plymouth and South West Devon between 2004 and 2006 when it is said he gave certain assurances to the claimant to which I will return. He is now the coroner for Manchester. The third defendant succeeded the second as acting Plymouth coroner in 2006, being confirmed in that position in December 2007. The fourth defendant is the current Cornwall coroner.[12]The impassioned case which the claimant has sought to put forward, in many documents and in his submissions at the hearing, has encompassed his bitter complaints against the Trust, but he has advanced other allegations besides. Thus he has asserted that the second defendant undertook, on two occasions in 2004 – 2006, that he would hold a “coroner’s investigation (not just an inquest)” into Mrs Connah’s death. He alleges also that the second defendant stated that a fuller investigation than an inquest was required, that the second defendant agreed that his wife’s death was an unlawful killing and left detailed instructions on his computer directed to his successor, the third defendant, to carry out an investigation into Mrs Connah’s death. His case against the fourth defendant must be that she is under some present and continuing obligation to activate a process which would lead to an inquest into the death.[13]The form of these proceedings, brought as I have said pursuant to s.13 of the 1988 Act, means necessarily that the court may only grant relief contemplated by the statutory scheme. Given the claimant’s agony over his wife’s death, I shall have something more to say about the facts. At this stage I should explain the scope of the application by reference to the relevant provisions of the 1988 Act, which are as follows:
“8(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 an 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.”
I need not set out the provisions relating to the summoning of juries. “13(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. 14(1) If it appears to a coroner that, in the case of a body lying within his district, an inquest ought to be held into the death but it is expedient that the inquest should be held by some other coroner, he may request that coroner to assume jurisdiction to hold the inquest; and if that coroner agrees he, and not the coroner within whose district the body is lying, shall have jurisdiction to hold the inquest. (2) If the coroner who has been requested to assume jurisdiction declines to assume it, the coroner who has made the request may apply to the Secretary of State for a direction designating the coroner who is to hold the inquest. (3) On the making of an application under subsection (2) above, the Secretary of State— (a) shall determine by which coroner (whether one of the two mentioned in that subsection or another) the inquest should in all the circumstances be held; and (b) shall direct him to assume jurisdiction or, as the case may be, to exercise his jurisdiction to hold the inquest; and where a direction is given under this subsection directing a coroner to assume jurisdiction, he, and not the coroner within whose district the body is lying, shall have jurisdiction to hold the inquest and shall hold it accordingly. (4) Where jurisdiction to hold an inquest is assumed under this section, it shall not be necessary to remove the body into the district of the coroner who is to hold the inquest. 15(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. (3) Where a coroner is directed under this section to hold an inquest, the provisions of this Act and the law relating to coroners and coroners’ inquests shall apply with such modifications as may be necessary in consequence of the inquest being one into the death of a person whose body does not lie within the coroner’s district.” (a) has died a violent or an 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, (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. (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. (a) shall determine by which coroner (whether one of the two mentioned in that subsection or another) the inquest should in all the circumstances be held; and (b) shall direct him to assume jurisdiction or, as the case may be, to exercise his jurisdiction to hold the inquest; (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,[14]The scheme disclosed by these provisions is perfectly clear. The claimant may only obtain an order under s.13 of the 1988 Act if this court is satisfied that a coroner is refusing or neglecting to hold an inquest which ought to be held (s.13(1)(a)). Plainly there is no relief that could be granted against the Trust: it is manifestly not a coroner and has no power to hold an inquest. The circumstances in which an inquest “ought to be held” are those, and only those, contemplated in ss.8, 14 and 15. The respective submissions of the second, third and fourth defendants demonstrate that no such circumstances have arisen on the facts of this case. It is convenient to deal with them in turn.

The Second Defendant

[15]The second defendant had no jurisdiction to hold an inquest at any material time. He had no such jurisdiction under s.8 of the 1988 Act, since Mrs Connah’s body never lay within his district. No other coroner had requested him to conduct an inquest so as to confer jurisdiction on him under s.14. He had received no direction from the Secretary of State under s.15. Nor, in my judgment, would it have been competent for the Secretary of State to give such a direction. As was said by Woolf LJ as he then was in R v East Sussex Coroner ex p. Healy [1988] 1 WLR 1194, 1200, s.15 is primarily concerned (by the use of the words in ss.(1)(a) “near his district”) with situations where there is a possible conflict, or impasse, between adjoining coronial jurisdictions, as would for instance arise if it was unclear in which jurisdiction the death had taken place. Or the section might apply where the death occurs offshore: the coroner of the nearest jurisdiction could then very properly make a statutory report to the Secretary of State. S.15 on its true construction is not intended as a mechanism by which a coroner for one district may in effect take jurisdiction to hold an inquest where the death undoubtedly occurred in an adjacent district.[16]As I have indicated the claimant’s case on the facts is that the second defendant stated that a fuller investigation than an inquest was required, agreed that Mrs Connah’s death was an unlawful killing, and twice between 2004 and 2006 undertook to conduct a “coroner’s investigation (not just an inquest)”. Even if the second defendant behaved in such a manner, it would not avail the claimant. By giving such an undertaking the second defendant could not confer on himself any jurisdiction to hold an investigation. Nor could he confer any such jurisdiction on the third defendant, his successor as coroner for Plymouth, by leaving him instructions (as the claimant asserts he did) to investigate the death.[17]In fact, however, I am quite clear that the second defendant gave no such undertaking or instructions. For his part he does not deny having had some contact with the claimant; and he expressly recalls a telephone call (he cannot say with whom) about a case with similar facts – it may have been Mrs Connah’s case. But the notion that he would have behaved as the claimant alleges is entirely unreal. He would have been completely familiar with the core provisions of the 1988 Act. He would have been fully aware that he possessed no jurisdiction whatever to hold an inquest. As a judicial officer he would not conceivably have committed himself to the view that an uninvestigated death was an unlawful killing. The suggestion would be even more preposterous if as the claimant says (but contrary to my finding) the second defendant actually proposed to conduct an investigation. The suggestion that he left instructions to his successor to investigate the case is no less preposterous. As the second defendant well knew his successor possessed the same judicial autonomy as he did himself. Notwithstanding the second defendant’s lack of express recollection, I reject the claimant’s case against him on the facts out of hand.

The Third Defendant

[18]The third defendant, the current coroner for Plymouth and South West Devon, had (and has) no more jurisdiction to conduct an inquest than had the second defendant. Again, Mrs Connah’s body never lay in his district. No jurisdiction arose under s.14 or s.15. Since as I have found the second defendant never instructed him to investigate the death, so of course the third defendant never received any such instructions. Even if he had, they could have conferred no jurisdiction on him to hold an inquest or any other form of enquiry.

The Fourth Defendant

[19]The fourth defendant did not hold office as coroner for Cornwall at any time when Mrs Connah’s body lay in that district (that is to say, between her death and cremation). There is no question of her possessing jurisdiction under s.8 or s.14. However her position in relation to s.15 is different from that of the second and third defendants, because the first part of s.15(1)(a) is fulfilled in her case: the death occurred in her district, albeit she was not its coroner at the time. (S.15(1)(b) is in any event fulfilled because of the destruction of the body by cremation.) It would therefore be open to the fourth defendant to make a report to the Secretary of State under s.15 if she had reason to believe, as it is put in the closing words of s.15(1)(a), that the death occurred “in such circumstances that an inquest ought to be held”.[20]When Mrs Connah died, the doctor attending her reported the death to the then Cornwall coroner who concluded that no inquest was required. That enabled the cremation to take place. Inevitably, the fourth defendant has only been in a position to consider the case at a much later date. She has done so with all the diligence the public are entitled to expect of a coroner. The Attorney General’s Office, which was of course involved by reason of the claimant’s application for a fiat, supplied her with a number of documents. She considered the material before her in light of the statutory test under s.8 of the 1988 Act (“a violent or unnatural death [or] a sudden death of which the cause is unknown”), which is transposed into s.15(1)(a) by the words “in such circumstances that an inquest ought to be held”. In addition to the materials from the Attorney General, she had some further documents from the claimant himself (with whom she corresponded). She made enquiries in Cornwall as to what papers remained there, but unearthed only the general practitioner’s referral to the then coroner on 9 March 1998, and the death certificate which gave the cause of death as “1(a) cerebral tumour”. The retired Cornwall coroner, Dr Bruce, had no further recollection of the case.[21]At length on 6 January 2009 the fourth defendant wrote to the Attorney’s Office setting out her conclusion that nothing “on the evidence before me suggests that the death was unnatural or the cause of death is unknown”. She acknowledged her awareness that the claimant had “some concerns over the medical treatment of his late wife” and suggested that he might get in touch with the Health Care Commission “or an appropriate complaint procedure”. However, the evidence is that material she has seen since that time has only served to confirm her view. Accordingly she has made no report to the Secretary of State under s.15 of the 1988 Act.

Judicial Review?

[22]In these circumstances it will be apparent that this court is in no position to make an order under s.13(2) for an inquest to be held, because it manifestly cannot be satisfied of any of the matters specified in s.13(1)(a) or (b). It would however be open to us to re-constitute these proceedings (waiving all procedural requirements) as an application for judicial review of the fourth defendant’s decision not to make a report to the Secretary of State. It is clear that this court may overturn such a decision, but only on conventional public law grounds. The claimant would have to demonstrate that the decision was irrational in the public law sense: see Terry v East Sussex Coroner [2002] QB 312, 319E-F.[23]In my judgment there is nothing to justify such a course. The fourth defendant’s conclusions are entirely reasonable. I should first refer to an expert opinion prepared by Dr Barley in January 2004. He considered the medical records and concluded (paragraph 6.7) that the original proposal to administer high dose radiotherapy to Mrs Connah had been correctly modified to palliative treatment; that (paragraph 8) her condition had been managed in an appropriate manner; and that a more rapid diagnosis, or alternative treatments, would not on the balance of probabilities have affected the outcome. Overall he was of the view that the clinical care provided by the Trust was of a good standard and that nothing done or omitted by the clinicians contributed to Mrs Connah’s death. A clinical note provided by Dr Macleod describing the treatment administered to Mrs Connah on 20 February 1998 gives a coherent and apparently entirely satisfactory account. Other materials (including a statement of Dr Kelly, consultant oncologist) also attest the propriety of Mrs Connah’s care and treatment. The fullness and consistency of a detailed chronology of her treatment, prepared by the fourth defendant, supports the same conclusion.[24]I should say that among the claimant’s many concerns is his specific allegation that Dr Macleod’s treatment note of 20 February 1998 bears a false, he says forged, reference number: RT2029 when it should have been RT2089. RT2029 was the reference number for the other patient I have mentioned, Valerie Robinson. However Dr Macleod’s note, together with the opinion of Dr Barley and the statement of Dr Kelly, show that the treatment recorded was appropriate for Mrs Connah’s condition. Nothing to the contrary was shown in the negligence proceedings. It will be recalled that a joint statement of three experts, placed before Judge Overend on 19th September 2003, concluded that the CT scans which the claimant said had been falsified were indeed of Mrs Connah. Moreover Mrs Connah and Mrs Robinson were never in the same radiotherapy department together; any mix-up in their treatment is therefore all the more improbable.[25]In my judgment there is no more basis for a judicial review in this case than there is for an order for an inquest under s.13 of the 1988 Act. If my Lord agrees, the application must be dismissed.

POSTSCRIPT

[26]None of this will satisfy the claimant. He remains convinced that his wife suffered so-called treatment to which she should never have been subjected; that records have been falsified and true information withheld; that court transcripts have been doctored, and he has been lied to by the Court Service; that there has been a major cover-up to conceal misconduct at the Trust so as to prevent, as he put it, “the destruction of the NHS and even the bringing down of the government”.[27]The claimant’s grief deserved more gentle treatment than Judge Overend gave him. As his submissions in court made all too clear, every detail of his wife’s last days and weeks, as he perceives them, is very vivid and very painful to him. But his beliefs as to the events leading to his wife’s death are a terrible fantasy. It is to be hoped that somehow he will find relief from it. Mr Justice Coulson:[28]I agree. Mr Connah’s detailed and courteous submissions made only too clear the devastating impact upon him of his wife’s illness, treatment and ultimately death, but for the reasons given by my Lord there is no basis on which this court can order an inquest or allow an application for judicial review.

order

“It is ordered that you be restrained from issuing claims or making applications in any court specified below concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made without first obtaining the permission of HHJ Sean Overend or if unavailable the deputy Designated Civil Judge for Devon and Cornwall.” After referring to the Bhamjee order, the order continued: “It is ordered that you be restrained from writing to, telephoning or otherwise communicating with the Area Director's office of the Devon and Cornwall Area of HM Courts Service or any of their members of staff or with the Torquay and Newton Abbot Court or any members of their staff without first obtaining similar permission of HHJ Sean Overend or the deputy Designated Civil Judge for the Devon and Cornwall.” The order was expressed to expire on 19 January 2007.