England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(LORD JUSTICE LAWS)
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2
		25th July 2006

1. LORD JUSTICE CARNWATH: This is an appeal from a decision of the Divisional Court on the application under section 13(1) of the Coroner's Act 1988 pursuant to a fiat granted by the Attorney General on 13 June 2005. Mr Canning seeks an order that Mrs Ann Pember, Coroner for the county of Northampton, should hold an inquest into the death of his son, Francis.
2. Laws LJ began his judgment by saying that this was a tragic case which must elicit the sympathy of anyone familiar with the facts of it and I associate myself with that statement. However, we have to consider whether the decision of the Divisional Court was wrong in law. Although we have been given some detailed and helpful assistance on the law, it does not seem to me that there has been any material dispute for the purposes of this case.
3. The main points can be summarised shortly. The coroner's duty in the matter is defined by Section 8(1) of the Coroner's Act 1988. He was required to hold an inquest if there was:

"…reasonable cause to suspect that the deceased—

(a) has died … an 'unnatural' death".

The Divisional Court proceeded on the basis that that test would be met by –

"… a wholly unsuspected death from natural causes which would not have occurred but for some culpable human failure".

Those words are taken from the judgment of Simon Brown LJ in R (Touche) v Inner London North Coroner [2001] 1 QB 383. For the purposes of this appeal there has been no dispute that that is the appropriate test to be applied. The words "reasonable cause to suspect" imply a low threshold. They do not require a prima facie case; see Hussein v Choung Fook Kam [1970] AC 942. Finally, the coroner's decision not to hold an inquest can only be impugned on Wednesbury grounds, in other words for irrationality or illegality; see Touche per Simon Brown LJ at paragraph 16 and Terry v East Sussex Coroner [2002] QB 312 para 21.

4. Before the Divisional Court Miss Hill, who then appeared for Mr Canning, also relied on cases under article 2 of the Human Rights Convention as showing that there should be an inquest where there was evidence of a failing going beyond "simple negligence" in the care and treatment of a patient; see Goodson v HM Coroner for Bedfordshire and Luton [2004] EWHC Admin 293(1) per Richards J para 59. However, as Laws LJ noted:

"Miss Hill candidly, and if I may say so plainly rightly, accepted that it would at least be very difficult for her to mount an Article 2 case absent a fair wind on the domestic law."

Mr Clayton, who led Miss Hill in this court, did not as I understood it, depart from that concession.

5. The application failed before the Divisional Court. Laws LJ with the agreement of Ouseley J found it impossible to hold that the coroner arrived at an "irrational or otherwise unlawful" decision in declining to hold an inquest. Permission to appeal was refused on the papers by Hooper LJ but granted following an oral hearing by Longmore and Lloyd LJJ. They referred to a decision of this court made after the Divisional Court's judgment, R (Takoushis) v HM Coroner for Inner North London and Guys and St Thomas' Hospital NHS Trust and the Commissioner of the Metropolitan Police [2005] EWCA Civ 1440, which they saw as giving some support for "the possibility of systemic failure being a ground for concern". Mr Clayton does not seek to argue that the judgments in Takoushis would add any fuel to the arguments otherwise available. I note, however, that the court approved Richards J's summary of the principles derived from the Strasbourg case law and also held that the present system under the Coroner's Act does not fall short of article 2 requirements.
6. The Court of Appeal was faced with a request for the admission of new evidence from a Miss Deborah Coles, which it refused. But it stood over to this hearing an application to admit further evidence from Dr Milla, whose earlier report was before the Divisional Court. In this court it has been accepted by Mr Burnet QC on behalf of the Coroner that it is appropriate for us to consider the subsequent evidence from Dr Milla, (whether or not it is strictly admissible), on the basis that the Coroner has a continuing duty. If it were not to be considered by us, it might open the way to a further application of a similar kind.
7. I turn to the facts. Francis died aged 14 during the morning of 23 January 2004. He was a gravely disabled child. He had severe cerebral palsy and what is referred to a global neuro development delay. He was epileptic, quadriplegic, blind and without speech. He could communicate to a limited extent by crying, laughing or smiling and might scream if he was in pain.
8. The issue turns principally on what happened overnight of 22 January 2004. The essential facts, most of which are uncontested, can be taken from the judgment of Laws LJ:

"2. Francis spent a substantial amount of time at a residential respite care centre called The Squirrels, which as run by the Northamptonshire Health Care Trust. He was there for five days, Monday to Friday, every two weeks. On Monday 19^th January 2004 he was admitted to The Squirrels as usual for five days respite care. He was found then to be slightly constipated and his breath had an offensive smell.

"3. There is some evidence that the nurse at the hospital was consulted. At all events, at length, his bowels were opened on 21^st January and no further problems seem to have been encountered in relation to the odour of his breath. From 19^th to 22^nd January, he went each day (transport, of course, being provided) from The Squirrels to the Wren Spinney Community Special School at Kettering which he had attended since October 2003.

"4. When he returned to The Squirrels from school, on 22^nd January 2004, he was unsettled. According to a report from Susan Clennett the Clinical Risk Manager of Northamptonshire Health Care NHS Trust he was 'restless and moaning.' There is some evidence that that was not itself unusual. He was put on his bed. He showed a loss of appetite when he got up to have his tea. Again there is some evidence that that was not unusual, so much was acknowledged by Miss Hawes, a senior primary nurse at The Squirrels. Miss Hills for the claimant submits, and there is some foundation for this, that the picture is to say the least, not entirely clear.

"5. Francis remained unsettled. He started to sweat but his temperature was within normal range. At 8.45pm he was restless and crying, and he was so again at about 10.00pm and at 10.50pm. On that last occasion he appeared to be in pain and was given paracetamol."

9. Laws LJ noted some differences in the evidence as to the overnight position:

"6. After that, he had, according to Miss Hawes, a settled night; on the other hand there was a hearsay statement from Mrs Hawes, the school nurse, that he had a poor night. She was not of course a direct witness of what was happening at The Squirrels.

"7. Miss Hills says that there are some uncertainties and inconsistencies in the material relating to events on 22^nd January. As I have said, one was as to the reason for how he presented on return from school. There was an account relating to a change of his Baclofen pump and also there was the question of whether it was or was not usual for him to have a poor appetite."

10. I take up the account of the events of the following morning:

"8. Early the next morning, 23^rd January, Francis had some breakfast. His hands and feet this time were found to be cold. Miss Hawes thought he should see a doctor. She phoned the claimant. There is some dispute as to the detail of what happened at that stage, but, at all events, Francis was put on a school bus at 8.00am to 8.10am. On arrival at school at about 9.10am he was found to be pale, his lips were slightly cyanosed and his extremities cold. His colour however improved; but the school nurse, Miss Hawes, on returning to the classroom where Francis was, found he was still pale, his extremities remained cold and his tongue looked dry.

"9. She phoned the claimant and she told him that Francis was very poorly. The claimant went to the school, together with a Learning Support Assistant he took Francis to the Kettering General Hospital. On the way, Francis' breathing became shallower and it is the claimant's own firm belief that he died in the car. The school nurse was to telephone The Squirrels and report that Francis had died on the way to hospital. The post mortem examination was carried out by Dr Stocks, the Consultant Histopathologist at the Kettering General Hospital. He concluded that the cause of death was an infarction of the small bowel caused by what is called a volvulus, a condition in which a section of the bowel becomes twisted. This twisting leads to the bowel become devascularised and to acute inflammation.

"10. In Francis's case there was also evidence of peritonitis. These later critical stages would, in doctor Stock's view, take about 24-hours to develop. He also gave it as his opinion that a delay of one-and-a-half hours in seeking medical attention would not have altered the fatal outcome."

11. On 11 February 2004 solicitors for Mr Canning asked the defendant Coroner to hold an inquest on the basis that the death was "unnatural" in the sense explained by Simon Brown LJ in Touche. She refused, giving her view that there was "no element of culpable failing" and that she was "entirely satisfied" that Francis had died of natural causes. Mr Canning obtained a report from a Professor Milla, professor in paediatric gastroenterology and nutrition at the Great Ormond Street Hospital, dated 7 May 2004. This did not alter the Coroner's view.
12. New solicitors having been instructed by Mr Canning, they wrote a detailed letter on 8 November 2004 summarising the evidence then available, highlighting additional categories of evidence which in their view should have been investigated and calling for a further review. On 24 November the coroner repeated her refusal, and the present proceedings followed.

The Coroner's Reasoning

13. In her witness statement in these proceedings, Mrs Pember explained in more detail her reasons for not finding reason to suspect that Francis's death was unnatural. Having identified the relevant evidence, including Dr Scott's report, and the statements from Miss Withers, head teacher of Wren Spinney and Miss Hawes, senior primary nurse at The Squirrels, she said this:

"Professor Milla's letter of 30 June 2004 asserts 'he suspected' that if Francis had had skilled surgery at 6.15 am on 23 January 2004 he would have been saved. However, Professor Milla states that this would have meant preparations for surgery occurring some hours prior to this. It seems to me therefore that, on Professor Milla's evidence, to prevent Francis' death, there would have needed to have been a diagnosis of Francis' condition and a realisation of the need for urgent surgery on the evening of 22 January 2004.

"Professor Milla notes the lack of physical symptoms in the preceding 24 hours other than pallor and coldness. It seems to me that even if these symptoms had been present on the evening of 22 January 2004, a General Practitioner would not have diagnosed the condition or appreciated the need for immediate surgery. However, it appears to me that such symptoms were not present on the evening of 22 January 2004 but first became present on the morning of 23 January 2004 by which time Francis' condition was, on the evidence before me, irreversible. The observations and recordings for 22 January 2004 note that Francis was unsettled and appeared hot (although his temperature was normal) (AP1/56). There was no mention of Francis being cold or pale on the evening of 22 January 2004 in the contemporaneous notes or Miss Hawes' witness statement. Francis appeared unsettled initially but this, from the evidence, was not unusual (see Multi-Agency Reports and Investigation Review, June 2004 and in particular Ms Clennett's report AP1/21). Francis was given paracetamol at approximately 23.00 and after that appears to have settled and slept well."

That was the reasoning on which the Coroner's decision was taken. As Mr Clayton accepts, he cannot succeed on this appeal unless he can persuade us that that reasoning is perverse in some way.

The Divisional Court's Reasoning

14. The Divisional Court regarded as effectively common ground that culpability, if any, must be found in the event of the evening of 22 January rather than the following morning. This followed from a passage in Dr Milla's letter dated 30 June where he said this:

"I suspect that if skilled surgery had been available to Francis at the time that he awoke on the morning of his death that on the balance of probabilities he would have been saved. However, this would probably have meant that he ought to have been in a setting where it could have been carried out at that time and in a sense prepared and ready to go to theatre. In reality this probably means being admitted some hours sooner than this."

Laws LJ commented:

"It is in my judgment clear on the facts that by the morning of 23^rd January 2004, when Francis was found to be pallid and cold it was too late to begin any remedial action which would have saved his life. He would on Professor Milla's later letter have had to be admitted to hospital some hours earlier than the time he awoke on 23^rd January – to be prepared for surgery that might have saved him."

15. As to what happened on the evening of 22 January, Dr Milla said this in his original report:

"… It seems clear that Francis did develop symptoms on the evening of the 22^nd January and almost certainly his bowel was volved at this time. Interpretation of these symptoms in a boy with such profound and severe handicap would be difficult for individuals who were not extremely familiar with Francis. As he has a period of being unsettled for a prolonged period of time on the evening of the 22^nd January, it would have been prudent for him to have been assessed by an individual who was familiar with him."

16. Laws LJ observed that the factual basis for the assertion that Francis had been "unsettled for a prolonged period of time" was somewhat fragile, having regard to the evidence of Miss Hawes, to which I will come in a moment. In any event, on this material Laws LJ found it impossible to conclude that the Coroner's reasoning was perverse.

Arguments in the appeal

17. Mr Clayton, with Miss Hill, has helpfully presented to us a detailed speaking note setting out the material on which they rely and the discussion of the case law. As I have said, no material issue seems to me to arise on the legal test. So far as the factual material is concerned, Mr Clayton accepts that one must concentrate on the events of the evening of 22 January. As I understand him, his essential case is that there were grounds to suspect that something had gone wrong, sufficient to put a properly instructed coroner on notice of the need at least for further investigations.
18. The main extracts from the evidence on which he relies I can take in order. First there is the statement of Miss Hawes, the nurse at The Squirrels, dated 25 March 2004. She said this of the evening of 22 January:

"On Thursday 22 January 2004, Francis returned to us from Wren School in Kettering, quite unsettled. Sometimes Francis would be uncomfortable in his wheelchair or after having a bus journey from Kettering. We would normally place Francis on his bed as this usually helped him, and I believe that this was the case on this occasion. On Thursday evening Francis had loss of appetite, although he had been acting quite well during his stay. However, it was not uncommon for Francis to just go off his food. Francis remained unsettled throughout the evening. At 19.30 I administered Francis' regular medication and 200 mls of Fortisip, this being a food supplement. I also took Francis' temperature, as he was becoming a bit worked up and was starting to sweat. I was worried that he may be in pain or not feeling himself but I did not think it advisable at that time to administer any other medication to Francis straight after what I had just given him, in case he began to vomit. Also whilst other members of staff were in Francis's room with him, he began to settle down. Francis had periods of being unsettled that evening until 23.30 when night staff administered paracetamol as per drug card, after which he had a settled night."

Then at the end of her statement she said:

"I can also add that Francis was unable to speak but could use vocal sounds to make himself heard if he needed to, regardless of if he was happy, and or in pain. Apart from him being unsettled when he first came back from school, after he had been given his paracetamol, he had a reasonably peaceful night."

19. Mr Clayton also referred me to a statement by a Miss Susan Clennett, who is Clinical Risk Manager for the Healthcare Trust. This is a rather fuller statement of the events and refers to various different witnesses. Her report is dated 19 March. She sets out an account of the events of the evening of 22 January which contains, in some respects, more detail than the statement of Miss Hawes. Mr Clayton in particular refers to a reference to Miss Hawes having commented on the replacement of Francis's Baclofen pump as one of the possible causes of his not being settled. Mr Clayton notes that that particular reference does not appear in Miss Hawes' own statement.
20. I do not think I need quote anything else from that report other than to note, as Mr Clayton does, that at the end of it Miss Clennett raises certain questions arising from her account as to, for example, whether there was evidence of Francis having presented in such an unsettled way on other occasions, which she answers by referring to previous dates where he had been unsettled in different ways. She also raises various questions about points which might be learnt from the events of that evening.
21. So that was the material before Dr Milla at the time of his original report, which was considered by the Divisional Court. In respect of Laws LJ's comments on the "fragility" of Dr Milla's conclusions as to Francis being "unsettled", it is fair to note his summary of the evidence:

"On the 22^nd January, Francis returned to the Squirrels from school unsettled, it seems clear from the notes available that he refused his feed that evening following an attempt at feeding at 7.30 he became rather worked up and started to sweat. The carers were concerned that he might be in pain, but no effective action appeared to have been taken. He had periods of being unsettled until 11.30 when he was given some paracetamol following which he settled down and apparently passed a settled night asleep."

As Mr Clayton says, that shows that he was aware that for the most part of the night Francis had been settled. As to whether effective action was or was not taken, I will come back to that issue. I turn to the subsequent material which was not before the Divisional Court.

22. The decision of the Divisional Court was given on 23 November 2005. On 24 November the solicitors for Mr Canning wrote to Professor Milla referring to his earlier report, commenting:

"The case went before the High Court yesterday where an issue arose concerning an additional point which is not expressly dealt with in your opinion.

"If Francis has been medically examined, what would have been likely to have happened? Would a reasonable doctor have referred him for surgery?

"Can you be any clearer on the level of blame to be attached to those who failed to have him assessed by a doctor."

They note that Mr Canning had not succeeded before the Divisional Court, and they were considering an appeal.

23. Professor Milla responded on 27 January 2006. He said this:

"It is clear Francis Canning is very mentally and physically handicapped child, blind and without speech and control of his limbs needing constant 24 hour care. It is also clear that Francis died from a volvulus of his small intestine which resulted in severe intra-abdominal pathology which in a normal child would have caused severe pain. Given that Francis was treated with anticonvulsants, baclofen and had no means of normal communication the interpretation of symptoms would have been difficult for individuals who were not familiar with Francis. It is clear that in the evening of the 27^th January that Francis was unsettled and his carers were concerned that he might be in pain. However no effective action was taken although if Francis Canning had been assessed at this stage I cannot believe that a reasonable doctor would not have found abdominal symptoms that warranted that these be observed in hospital where surgery could have been carried out in time to save his life. I look forward to hearing how matters progress."

In that passage, Professor Milla was responding to the first question as to what would have happened if he had been medically examined, but not in the terms to the second question as to the level of blame of those who failed to have him assessed by a doctor.

24. For that we need to go to an attendance note of a conversation between the solicitors and Professor Milla. That is appended to statement dated 14 July 2006, a few days ago, from the solicitor. It refers to the notes of a conversation which he had had on 5 December 2005 with Professor Milla. (We have been shown a typed transcript.) I can read two extracts to give the flavour, although since it is in note form the sense is not entirely clear:

"Not easy - someone should have been called earlier but difficulty in knowing how long disease had processed – 24 hours.

"MAJOR PROBLEM: Further concerned…no effective means of communicating. Respite care not as used to him (FC) as previous unit.

"Too easy to say someone should have noted his symptoms – always a difficulty with someone like that.

"Counsel of perfection to communicate concerns with others. What's clear from material 22.01.04 'unsettled – became agitated…carers were concerned enough to give him paracetamol.

"(Had) some symptoms but couldn't communicate would've been PRUDENT - (for staff to seek medical attention) - one would've hoped that's what happened".

Then there is this passage:

"They'd say: He'd behave like that if (was) he just constipated.

"[therefore Prof Milla] has not changed his initial view. (ie) "PRUDENT" to seek medical attention.

"What were circs. trying to judge

why unsettled?

why refused to eat?

"Those (symptoms) could all be produced by constipation.

"Sorry he can't be firmer on it."

Mr Rubenstein, the solicitor who took the note, explains that:

"The words and expressions in brackets in the typed transcript are my additions to clarify my best recollections of the form of the unabbreviated conversation notes."

25. Finally, to bring matters up to date, there is a medical report from Professor Milla dated 20 July 2006. Again I read the relevant part dealing with the evening of 22 January:

"With reference to the period of being unsettled the evidence such as it is, is not expressed very tightly but it does seem from the evidence that there is that he was unsettled on the evening of the 22^nd and whether one concludes that this was unsettled for a prolonged period of time maybe a little semantic but it was over a sufficient period of time for the nursing staff to give him some paracetamol and attempt to settle him at 11.30 that evening. At the present time it seems to me that it is only the night of the 22^nd which is really being considered prior to the unfortunate events of the 23^rd but when Francis was admitted to the Squirrels on the 19^th June the nurse noted that his breath was bad and that shortly after this he was constipated. A faeculent breath is one of the signs of intestinal obstruction which volvulus would have caused. If Debbie Maughn, the school nurse from the Winney School had been told by the nurse in charge from the Squirrels that Francis had had a poor night then clearly the nursing staff at the Squirrel had some concerns over and above the need to give him paracetamol regarding Francis and in an individual who had had previous abdominal surgery whose ability to communicate was extremely limited and as a consequence unable to relate clearly symptoms a careful physical examination should have been carried out."

26. Those are, I think, the pertinent passages in the evidence as a whole. The question is whether, even taking account of that additional material, and even assuming that it is to be treated as having been before the Coroner, that alters the view taken by Laws LJ and Ouseley J. Was it perverse for the Coroner not to take the view that there was reasonable cause to suspect culpability by someone?
27. Mr Clayton is able to point to certain points in the material, some of which I have mentioned, where there are some inconsistencies and where further investigation might have produced some more material. But when faced with the question who is alleged to have been culpable, he found some difficulty in responding. It is particularly notable that even when pressed on the matter by the solicitors, immediately following the Divisional Court's decision, Professor Milla did not assert that anyone was culpable. The highest he would put it was a lack of "prudence" but he acknowledged the difficulties for those involved. He uses such expressions as "counsel of perfection", and he also points to the fact that similar symptoms might have resulted in constipation.
28. None of this, in my view, comes close to showing that someone was culpable or that there was reason to suspect that someone was culpable. Still less does it show that the Coroner was perverse in taking the view that nothing was to be gained by probing the matter further, and that the statutory test for requiring her to hold an inquest simply was not satisfied.
29. Accordingly, while inevitably one is deeply concerned by the tragic events of that night, we have to decide the matter according to the law. I would dismiss this appeal.
30. LORD JUSTICE KEENE: I agree.
31. LORD JUSTICE WARD: I also agree.

Order: Appeal dismissed.