IR (Lewis) v Senior Coroner for North West Kent  EWHC 471 (Admin) is a timely reminder of the ingredients for an inquest’s finding of neglect and the need for a coroner to put the issue to a jury, where there is sufficient evidence. In these judicial review proceedings the Claimant Ms Lewis, the sister of the deceased, applied successfully for the jury’s decision to be quashed after the coroner refused to leave the issue of neglect to the jury.
The facts: Ms Lewis’ death, the inquest and the judicial review
Jennifer Lewis, the deceased, had for many years suffered from mental health problems. Between October 2010 and her sad death in July 2017 she was sectioned under various provisions of mental health legislation and was admitted to multiple hospitals. From 17 October 2014 she was an inpatient at the Bracton Centre, a psychiatric unit operated by Oxleas NHS Foundation Trust (the “Trust”). In the final year of her life Ms Lewis lost a significant amount of weight which came with health consequences including diarrhoea, hair loss, and problems with her eyesight. The weight loss was thought to be linked to bariatric surgery a few years previously. It required monitoring. She was admitted to external hospitals on 2 occasions for her physical health problems. Notwithstanding the treatment, her physical decline progressed. On 14 July 2017, around a fortnight before her death, she was found half-conscious in her room at the Bracton Centre, in a severely undernourished, unkempt and dehydrated state. She was transferred to Darrent Valley Hospital, where she sadly died on 27 July 2017 from malnutrition.
It was the Claimant’s case at the inquest that the Trust did not properly monitor Ms Lewis’ physical decline, did not respond adequately to the same, and failed to follow its own policy on hydration and nutrition.
At the summing up to the jury, the Senior Coroner did not leave neglect as an issue which they should consider. When challenged by Counsel for the Claimant, Mr Waters, he referenced the cases of R. v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson  Q.B. 1 and R v Galbraith  1 WLR 1039 and stated that this omission was intentional. He did not give reasons.
The High Court, consisting of Davis LJ, Edis J and Judge Lucraft QC, determined unanimously that the factual matrix surrounding Ms Lewis’ death gave rise to the issue of neglect, applying Galbraith principles, and that this should have been put to the jury. The inquest was therefore flawed and its conclusions had to be quashed.
The law on neglect
The case shines a spotlight on a coronial finding of neglect, and when it will be appropriate. The leading case on this is the Court of Appeal’s decision in Jamieson, which is referred to in detail by the High Court in the present case. Neglect is defined at p 25:
“(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect…
(10) As in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the Rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse…”
The Chief Coroner’s Guidance No. 17 also gives binding guidance on findings of neglect, from para 74, referring to Jamieson (footnotes not included, emphases in original):
“74. The following does no more than outline the concept of neglect in coroner law. Neglect is not a conclusion in itself. It is best described as a finding. It must be recorded as part of the conclusion (in Box 4). It has a restricted meaning according to the case law. It should not be considered as a primary cause of death.
- A finding of neglect (formerly lack of care) was specifically approved in Jamieson. It may form part of the conclusion in Box 4, either as words added to a short-form conclusion (see paragraph 32 above) or as part of a narrative conclusion.
- Neglect is narrower in meaning than the duty of care in the law of negligence. It is not to be equated with negligence or gross negligence. It is limited in a medical context to cases where there has been a gross failure to provide basic medical attention.
- There must be a clear and direct causal connection between the conduct described as neglect and the cause of death: Jamieson. The conduct must have caused the death in the sense that it ‘more than minimally, negligibly or trivially contributed to the death’: see Khan. The ‘touchstone’ is ‘the opportunity of rendering care … which would have prevented death: Staffordshire case. It is not enough to show that there was a missed opportunity to render care which might have made a difference; it must be shown that care should have been rendered and that it would have saved or prolonged life (not ‘hastened’ death): Khan. [emphasis added]”
Neglect is in my experience a rare finding for a coroner or jury to make. It occupies an awkward position as a description of acts or omissions which contribute causally to a person’s death, but which are not to be regarded as the primary cause. Although the rules stress the distinction between a finding of neglect and common law negligence, the former having a narrower meaning, a finding of neglect in the medical context strongly suggests negligence by the relevant healthcare provider.
The facts in this case, in which Ms Lewis died of malnutrition, and questions were raised by her family about her treatment at the Bracton Centre, fall clearly within the remit of “neglect” as defined in Jamieson. Strikingly the Senior Coroner gave no reasons for his conclusion that a finding of neglect was not open to the jury. It is worthy of note (and ironic) that he then proceeded to raise concerns about Ms Lewis’ treatment in a report under regulation 28 of the Coroners (Investigations) Regulations 2013.
What can we take from the case? It is heartening to see that the Divisional Court will readily overturn the conclusions of inquests in which the jury have been misdirected. It underlines the need for coroners to state their reasons when making decisions regarding what conclusions are open to the jury. One can only hope that it will encourage coroners to take more care in future to ensure that conclusions for which there is sufficient evidence are left to the jury, in order to avoid the cost, inconvenience and distress of a fresh inquest.
The claimant was represented by Julian Waters, instructed by McMillan Williams.