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 QUEEN'S BENCH DIVISION, DIVISIONAL COURT
(LORD JUSTICE LAWS)
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2
		23rd March 2006

1. LORD JUSTICE LONGMORE: The claimant in these proceedings, Mr Adam Canning, seeks an order that the coroner for the county of Northampton should hold an inquest into the tragic death of his son, Francis. Francis died aged 14 on 23 January 2004. He was a very gravely disabled child. He had severe cerebral palsy; he was epileptic, quadriplegic, blind and could not speak. He could communicate to a limited extent only. He spent a substantial amount of time at a residential respite care centre called The Squirrels, which was run by the Northamptonshire Healthcare Trust. He was there for five days, Monday to Friday, every two weeks.
2. On Monday, 19 January 2004, he was admitted to The Squirrels as usual for five days' respite care. When he returned to The Squirrels from school on the evening of 22 January he was unsettled. According to a report from a Miss Clennett, he was restless and moaning, but there is some evidence that that was not itself unusual. He showed a loss of appetite when he got up to have his tea; again, there was some evidence that that was not unusual. But Miss Hill, on Mr Canning's behalf, submits that there are uncertainties and inconsistencies in the material relating to events on 22 January and one of those is as to the reason for how he presented on return from school. There was for example an account relating to a change of his back Baclofen pump and there was also a question of whether it was or was not usual for him to have poor appetite.
3. The next morning the school nurse, Miss Hawes, thought he should see a doctor but he was put on the school bus at about 8.00. On arrival at school he was found to be pale and his extremities cold. His colour improved but the school nurse found he was still pale, his extremities remained cold and his tongue looked dry. At that stage she phoned Mr Canning and the claimant went to the school and took his son to Kettering General Hospital. The claimant believes that his son died in the car on the way to the hospital. There is no doubt that his son did die. A post-mortem examination was carried out by a Dr Stocks, who 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.
4. Mr Canning's solicitors, in those circumstances, asked the defendant coroner to hold an inquest. She declined to do so, indicating that she was satisfied that there was no evidence of culpable failure, and that she was satisfied that the child had died of natural causes. The expression "culpable failure" and the notion of an unnatural death are drawn from case law and section 8(1) of the Coroner's Act 1988 which provides:

"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 unnatural death … 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."

5. There is a right of appeal to the divisional court against any decision of the coroner and the divisional court held on 23 November 2005 that there was no ground for thinking that the coroner had come to an unreasonable decision in the Wednesbury sense and so they dismissed that appeal.
6. There is now an application for permission to appeal. Miss Hill, on behalf of Mr Canning, first of all seeks to adduce new evidence from Dr. Milla in the form of a letter of 27 January 2006, saying in effect that, if Francis had been assessed on the evening before he died, he does not believe that a reasonable doctor would not have found abdominal symptoms that warranted that those symptoms be observed in hospital, where surgery could have been carried out in time to save his life. There is also an application to adduce evidence from a woman called Deborah Coles.
7. In support of her application for permission to appeal, Miss Hills submits that on the approach of the R (Touche) v Inner London North Coroner  [2001] 1 QB 1206, 1219F-G, all that she has to show, to say that the coroner was wrong, was that there was a prima facie case for suspecting that there was some culpable human failure leading to the death for the death to be unnatural. She submits that on that low threshold there is indeed such evidence, and she says that evidence raises enquiries about systemic issues in the care home, particularly whether or not there should be training for the staff to recognise medical problems in the case of severely disabled children. She submits that there are contradictions in the evidence which has been produced by the Healthcare Trust that may lead to conclusions about those systemic issues, and she submits that Mr Canning has had no opportunity to have any independent input into the reaction of the Healthcare Trust and that there is at any rate an argument that the coroner is in breach of Article 2 of the Human Rights Convention in her decision not to hold an inquest.
8. The reference to the possibility of systemic failures being a ground for concern under Article 2 has some support from the decision of this court in R (Takoushis) v  HM Coroner for Inner North London [2005] EWCA Civ 1440, a decision which was given on 30 November, which was a week after the decision of the divisional court in this case. We are satisfied that there is at least some prospect of an appeal succeeding, although we do not wish to raise any hopes on the part of Mr Canning, because it is not at all impossible that on analysis this court will indeed conclude that this was a natural death and not an unnatural death. It is not every death in a care home, even of a disabled child, that can give rise to the necessity for an inquest. Nevertheless, as we say, we think it right that the matter should be ventilated before the full court.
9. For my part, I would not give leave (and I say so even at this stage) for the evidence of Miss Deborah Coles to be adduced in the Court of Appeal for the first time. I would stand over the application to receive Dr Milla's evidence so that the full court can consider that when the appeal comes on but I would also order that the instructions, whether oral or written, given to Dr Milla, which led to his letter of 27 January 2006, which it is now sought to be adduced for the first time, should be disclosed to the coroner and the court (we have not actually invited Miss Hill to address any argument on that so she must feel free to do so if she feels it necessary) and we will also say that if the coroner wishes to file any evidence herself in response to the new evidence of Dr Milla, that that should be done within twenty eight days.

Order: Appeal granted. Permission to rely on further evidence adjourned.