The Chief Coroner, Lord Justice Dingemans, and Mr Justice Griffiths, recently handed down judgment in the matter of Smith, R (on the application of) v Assistance Coroner for North West Wales  EWHC 781 (Admin). This case concerned a judicial review following an Inquest into the death of a woman who sadly committed suicide. The judgment not only reiterates key case law; it sets out a timely reminder of a number of key principles arising in Inquests, including:
- The threshold and standard of proof for causation of death;
- The reliance to be placed upon expert evidence;
- The contents of Conclusions, and where lessons should be conveyed; and
- The test for neglect.
In March 2017, the Deceased was suffering from a urinary tract infection. She was seen by her General Practitioner (“GP”), who prescribed trimethroprim. However, she was noted as suffering from a sudden onset of paranoid delusions.
On the 20th March 2017, the Deceased collapsed at her GP surgery and was referred to the emergency department of a local hospital. She was reviewed and referred to a mental health liaison as a result of her paranoid beliefs. The psychiatric liaison that evening recorded in his notes that the Deceased had “…no thoughts of harming herself…”.
The Deceased was later seen by a medical registrar on the 29th March 2017, who noted: “…impression acute psychosis query schizophrenia, no medical issues at the moment”. That day, she was also reviewed by a psychiatric liaison nurse, who suggested treatment with lorazepam and zopiclone. It was recorded that the Deceased was “…okay to discharge from a psychiatric point of view…”.
On the 31st March 2017, the Deceased was presenting with acute paranoid ideations. She had thoughts of harming herself yet had made no plans to do so. A discussion was had with the on-call psychiatric Senior House Officer, Dr Mehr, who queried possible epilepsy and advised discharge and urgent referral to the Community Mental Health Team (“CMHT”) for further assessment. It was agreed that she would be given risperidone (an anti-psychotic drug). The Deceased was also assessed by a social worker, who considered that there was “no evidence of risk to self” and recorded that the Deceased denied any suicidal ideations.
The Deceased was visited at home on the 2nd April 2017. A locum consultant, Dr Ezah, was spoken to about an outpatient appointment. The Deceased later became very distressed at her mother’s home. Her partner was informed that a prescription of diazepam would be arranged.
On the 3rd April, another doctor prescribed a 7-day prescription for lorazepam and zopiclone, whilst Dr Ezah was off sick. An appointment for an urgent review by a consultant was suggested for the 11th April 2017, when Dr Mehr returned from annual leave.
The Deceased was again visited on the 5th April 2017. She was less anxious and had decreased paranoia. During a further visit on the 7th April 2017, the Deceased appeared to have improved. Her notes indicated that she was no longer taking zopiclone on a regular basis. However, she remained mentally unwell and concerns were repeatedly noted that she had not had any medical review by a consultant in the previous two weeks, due to a lack of medical cover. On the 13th April 2017, an increase in the Deceased’s risperidone prescription was discussed by telephone with Dr Mehr. Her GP agreed to prescribe this and an outpatient appointment with Dr Mehr was fixed for the 18th April 2017.
By the 17th April 2017, it was apparent during a home visit that the Deceased’s mental health had become worse, although she denied thoughts of self-harm. However, later that day, she took an overdose of co-codamol. She was subsequently admitted to hospital and was scored at the top end of ‘medium’ on a suicide intent scale. An on-call psychiatrist was consulted about her condition. It was decided that she would be discharged to the Home Treatment Team and that her risperidone would be increased.
The Deceased was formally discharged on the 19th April 2017. She was visited at home and it was agreed that someone would always be with her over the next few days.
On the 20th April 2017, the Deceased was shaking badly and continued to present with paranoid ideation. She remained on risperidone. When seen again on the 21st April 2017, she was noted as being “a little tired but conversed well”.
By the 22nd April 2017, the Deceased had a “very noticeable tremor” in her “whole body”, which was said to be getting worse with increasing risperidone. However, the tremor was “much reduced” by the 23rd April 2017, and the Deceased reported feeling better in mood.
Concern was expressed on the 24th April 2017 about the absence of a medical review. A doctor suggested her risperidone be stopped immediately and that she be commenced on olanzapine and mirtazapine. However, this was deferred until the Deceased had been seen by a psychiatrist.
On the 25th April 2017, the Deceased was seen for the first and only time face-to-face by a psychiatrist, namely Dr Mehr. His notes from the consultation indicated that the Deceased sometimes “fears not worth living” and that her verbal communication and mood had deteriorated. She was seen and given her medication on the 26th April 2017. Sadly, the Deceased hanged herself on the 28th April 2017. She was taken by air ambulance to hospital, yet efforts to revive her failed. She was pronounced dead on the 2nd May 2017.
An inquest into the Deceased’s death was formally opened on the 4th May 2017 and a post-mortem was carried out the same day. The Interested Party (“IP”) subsequently carried out a Serious Incident Review (“SIR”) into the Deceased’s death which made a number of findings, including:
- the absence of a medical review led to no formal diagnosis;
- there was over-cautious use of antipsychotic medication;
- there had been non-prescription of antidepressants for nearly a month;
- the Deceased was discharged from the emergency department in the early hours of the morning, on one occasion without informing her partner.
The IP considered the root cause of death to be inadequate medical cover for home treatment team patients in the West.
The Coroner considered that Article 2 ECHR was engaged, and that expert evidence was required. Dr Maganty was subsequently commissioned to provide the expert evidence at the Inquest.
Dr Maganty produced a report which criticised the medical care given to the Deceased prior to her death. He concluded that there was a failure of provision of basic medical care and that her death was “not only predictable but was entirely preventable”.
The Inquest took place between the 7th to the 14th May 2019. During the Inquest, Dr Maganty was questioned by the Coroner and the IP’s counsel. Dr Maganty considered the Deceased had suffered a severe depressive episode with psychosis, however he could not give a cause for her psychosis, as he did not see her. The Coroner questioned how Dr Maganty was able to conclude that the Deceased’s death was not only predictable but preventable, in the light of that answer. Dr Maganty answered: “it’s entirely a treatable condition that she had, whatever the condition may be… So if you can treat that illness and illness is causing the death, then you can prevent the death”.
The Coroner probed this further. During his evidence, Dr Maganty suggested that 99% of patients with psychotic depression did not go on to kill themselves. He suggested that statistic came from the five-year mortality rate of those treated for psychosis. He also gave evidence that the Deceased should have had a face-to-face consultation at the outset. This was not supported by any other witness at the Inquest.
At the conclusion of the Inquest, the Coroner gave a narrative conclusion of the issues (“the Reasons”). The Reasons set out the conclusions she had reached on the evidence. She also delivered her Record of Inquest (“the Record”).
In Part 3 of the Record, which concerned the questions “how, when and where, and… in what circumstances the deceased came by their death”, the Record did not set out any criticisms of the IP. Similarly, in Part 4 of the Record, the Coroner did not criticise the IP.
The Claimant sought replacement of all or part of sections 3 and/or 4 of the Record of Inquest with a narrative that referred to the failings in care by the IP. The Claimant argued that:
- the Reasons should have been more fully reflected in the Record;
- the Reasons and the Expanded Record ought to have reflected a different conclusion on causation from the one reached by the Coroner in the Reasons;
- the Reasons and the Expanded Record ought to have included a finding of neglect.
In respect of the threshold and standard of proof for causation of death, the Court set out the following:
- The law in respect of the threshold for causation of death and the standard of proof for causation of dealt is set out in R (Tainton) v HM Senior Coroner for Preston and West Lancashire  4 WLR 157 at para 41:
“…the threshold for causation of death is not the same thing as the standard of proof required to prove causation of death. In cases such as this, the latter is proof on the balance of probabilities. It is agreed that the threshold that must be reached for causation of death to be established, is that the event or conduct said to have caused the death must have “more than minimally, negligibly or trivially contributed to the death” (see e.g. R. (Dawson) v. HM Coroner for East Riding and Kingston upon Hull Coroners District  Inquest LR 233,  EWHC Admin 352 , per Jackson J at paragraphs 65-67). Putting these two concepts together, the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.”
- It is wrong in law for a Coroner to apply a test of certainty, which the Coroner in this case did do not do.
- In terms of the role of statistics in coronial findings about causation in individual cases, the Court referred to R (Childlow) v HM Senior Coroner for Blackpool and Fylde  EWHC 581 (Admin). Childlow referred to the observation of Croom-Johnson LJ in Hotson v East Berkshire Area Health Authority  1 AC 750, namely that a figure in a statistic does not by itself give a cause of action. Childlow also set out relevant passages from Clerk & Lindsell on Torts (22nd Ed, 2017), which emphasised that care had to be exercised when relying on statistics as a means of establishing causation and that the Court must look at the Claimant’s individual circumstances, rather than at general statistics. The fact the Coroner referred to Childlow indicated that she had the correct principles in mind.
Turning to the alleged irrationality of the decision in its failure to accept the evidence of an expert about causation of death:
- The Claimant referred to Dr Maganty’s report which concluded that the Deceased’s death was not only predictable but preventable. At a Pre-Inquest Review, the IP had produced written submissions which stated that the IP “accepted what is said by him… there is no need for Dr Maganty to attend”. The Claimant emphasised that the IP therefore accepted Dr Maganty’s conclusions. However, the Court did not reach that view. The statement was made in the context of Dr Maganty coming to give evidence at the Inquest. Further, he gave live evidence and the Coroner decided what conclusions she could draw from his evidence. She was not bound to accept his evidence, even if it stood alone.
The Court then turned to the Decision and Record of Inquest, and whether they were compliant with an investigation under A2 ECHR:
- The Claimant had provided a draft of Parts 3 and 4 of the Record, which the Court had taken account of. The Court considered that the proposed draft read more like a Statement of Case than a conclusion. The Court reiterated the Court of Appeal’s judgment in R (Jamieson) v HM Coroner for North Humberside and Scunthorpe  QB 1, specifically that it was not the function of a Coroner to appear to determine any question of civil or criminal liability, nor to apportion guilt or attribute blame.
- The appropriate vehicle for conveying lessons was not the Conclusion, but a Rule 43 report.
Finally, the Court turned to the issue as to whether a finding of neglect should be made:
- The Court did not consider this point reasonably arguable. The Court reiterated that a finding of neglect is an exceptional one, particularly in suicide cases. It requires proof “…not only that it was causative of death, but that it is in the nature of “gross failure” or “gross neglect” (Jamieson  QB 1).
Consequently, the application for Judicial Review was dismissed.
What can we learn from the judgment?
This judgment provides a useful summary of many of the key cases one should consider in Inquest proceedings. Importantly, it emphasises that Coroners are not bound to accept expert evidence. In this case, it became apparent that the expert’s conclusions were based on shaky evidential grounds. In addition, his use of statistics appeared to be expressed very generally at the Inquest itself, which the Coroner ultimately did not consider she could rely upon with any confidence.
The judgment also provided useful guidance as to where issues from which lessons could be learned should be set out. The Court did not accept that a Conclusion was the appropriate vehicle for those issues to be set out, as even narrative conclusions are expected to summarise factual conclusions. In essence, it is not for Coroners to express their opinions in the Conclusion. Any concerns identified should be raised in a Rule 43 Report, i.e. a Prevention of Future Death Report. In this case, the Coroner was satisfied that the IP had learned lessons and it was simply not necessary for a Rule 43 Report to be made. Interestingly, the Claimant did not make any submissions that the Coroner erred in failing to write one.
In terms of neglect, it is important to remember that this is a finding that is not given lightly. Whilst evidence may point towards a neglect finding, such a finding should only be reached where there was gross failure or gross neglect and if it was causative of the death. In many cases, this threshold will simply not be reached.
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