QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CHRISTINE DAVIES||(CLAIMANT)|
|HM DEPUTY CORONER FOR BIRMINGHAM||(DEFENDANT)|
|(1) HM PRISON SERVICE|
|(2) PRISON OFFICERS' ASSOCIATION||(INTERESTED PARTIES)|
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MR RICHARD BARRACLOUGH (instructed by Birmingham Coroner's Court, Birmingham, B4 6NE) appeared on behalf of the DEFENDANT
Tuesday, 11 February 2003
Crown Copyright ©
"(1) After Mr Davies reception assessment a treatment plan was established, the onus was placed on him to seek his treatments and further help if required.
"(2) No one checked to see why he did not attend for treatment or to attend reporting sick or to collect his meals.
"(3) Practices are in place for those considered to be at risk if they don't receive their treatment (diabetics, those on heart medicines) to be followed up; but this doesn't seem to extend to drug users. Given all the recognised risks amongst drug users on coming into prison especially from self-harm, this needs to be reviewed.
"(4) Follow up and taking the treatment prescribed may have prevented his deterioration.
"(5) Mr Davies presentation on the Sunday night was unusual the nurse did not elicit all the information about the vomiting, diarrhoea and no food or fluid intake nor that he had not taken any of his prescribed medicine.
"(6) She should have discussed the case with the duty doctor.
"(7) She should have been able to move him to an area for closer health care supervision. HMP Birmingham does not have such a resource, as the inpatients are not monitored by health care staff through the night.
"(8) Mr Davies collapse in the early hours is also very unusual again there should have been discussion with the duty doctor and arrangements for closer monitoring."
The last three points were excluded, by the coroner's ruling, from the jury, but it is to be noted that the fifth point, relating to the unusual nature of the presentation and the fact that the nurse did not elicit all the information, was before the jury. Further, in giving evidence, Nurse Spencer commented that, if there was a history of vomiting profusely, you would want to examine this person, perhaps do some blood tests. Dr Ralli himself commented in oral evidence on the desirability of treatment, having regard to the unusual nature of the presentation.
"It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in rule 42 of the Rules of 1984. The rule does, however, treat criminal and civil liability differently: whereas a verdict must not be framed so as to appear to determine any question of criminal liability on the part of a named person, thereby legitimating a verdict of unlawful killing provided no one is named, the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not."
At Principle (9) he continued:
"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. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury, but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be."
Principle (12), page 26, was described by the Master of the Rolls as:
"Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death."
"What is required (by way of investigation) will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the state has laid on lethal hands. The procedural obligation promotes interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach responsive to the dictates of the facts case by case."
Turning to the case of Middleton, the court considered the ruling of Stanley Burnton J in that case, in which he granted a declaration that the restrictions on the verdict at the inquest were inadequate to meet the procedural obligations in Article 2 of the European Convention on Human Rights. The Court of Appeal considered the decision of Jamieson in these terms at paragraph 87:
"A verdict of neglect can perform different functions. In particular, in the present context, it can identify a failure in the system adopted by the Prison Service to reduce the incidence of suicide by inmates. Alternatively, it may do no more than identify a failure of an individual prison officer to perform his duties properly. We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.
"For the purpose of vindicating the right protected by article 2 it is more important to identify defects in the system than individual acts of negligence. The identification of defects in the system can result in it being changed so that suicides in the future are avoided. A finding of individual negligence is unlikely to lead to that result. If the facts have been investigated at the inquest the evidence given for this purpose should usually enable the relatives to initiate civil proceedings against those responsible without the verdict identifying individuals by name. The shortcomings of civil proceedings in meeting the requirements of article 2 do not in general prevent actions in the domestic courts for damages from providing an effective remedy in cases of alleged unlawful conduct or negligence by public authorities.
"In contrast with the position where there is individual negligence, not to allow a jury to return a verdict of neglect in relation to a defect in the system could detract substantially from the salutary effect of the verdict. A finding of neglect can bring home to the relevant authority the need for action to be taken to change the system, and thus contribute to the avoidance of suicides in the future. The inability to bring in a verdict of neglect (without identifying any individual as being involved) in our judgment significantly detracts, in some cases, from the capacity of the investigation to meet the obligations arising under article 2."
Then, towards the end of the judgment, the court said at paragraph 91, page 541:
"In a situation where a coroner knows that it is the inquest which is in practice the way the state is fulfilling the adjectival obligation under article 2, it is for the coroner to construe the Rules in the manner required by section 6(2)(b). Rule 42 can and should, contrary to R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson  QB 1, when necessary be construed (in relation to both criminal and civil proceedings) only as preventing an individual being named, with the result that a finding of system neglect of the type we have indicated will not contravene that rule. If the coroner is acting in accordance with the rule for this purpose he will not be offending in this respect section 6(1).
"For a coroner to take into account today the effect of the Human Rights Act 1998 on the interpretation of the Rules is not to overrule Jamieson's case by the back door. In general the decision continues to apply to inquests, but when it is necessary so as to vindicate article 2 to give in effect a verdict of neglect, it is permissible to do so. The requirements are in fact specific to the particular inquest being conducted and will only apply where in the judgment of the coroner a finding of the jury on neglect could serve to reduce the risk of repetition of the circumstances giving rise to the death being inquired into at the inquest."
"There have been a number of cases where there had been medical attention but where neglect remained a possible element in a verdict ... Omissions on the part of medical practitioners are capable of forming part of the total picture which amounts to neglect."
"Notwithstanding Mr Burnett's submission that neglect and negligence are two different 'animals', there is, in reality, no precise dividing line between 'a gross failure to provide ... basic medical attention' and a 'failure to provide ... medical attention'. The difference is bound to be one of degree, highly dependent on the facts of the particular case."
The coroner's summing-up
"But you must understand that it is nothing at all to do with negligence. It is very unusual and will only arise in a very, very, small percentage of cases, but in view of the circumstances of this case, it was appropriate that you are given the option."
At page 76E he emphasised again the rarity of the verdict, quoting the textbook by Mr Dorries on inquests:
"'Such cases will be very few and far between.'"
The coroner probably meant no more than to emphasise the contrast with negligence and the need to identify gross failure, which, he emphasised on more than one occasion, had an extremely "narrow meaning", as he called it. But, I should say that, to the extent the deputy coroner did comment upon the rarity of such a verdict, he was, in my view, wrong. To comment on the rarity did not assist in defining neglect to the jury.
"The lack of care in supervising the bathing party may have been the cause of the accident, but it did not aggravate anything at all."
In ex parte Anderson Mann J observed that the absence of rehydration equipment did not aggravate the cause of death. He said:
"The presence of the equipment might have ameliorated the condition which in fact led to death but its absence did not aggravate. In my judgment, the coroner was correct in not raising the question of aggravation by lack of care. I add that I do not decide that aggravation by lack of care is never appropriate in a case of accidental death but, like Croom-Johnson LJ I think that such a case is unlikely in the extreme: see ante, p1634G."
Mann J was thus reiterating Croom-Johnson LJ's exposition of the logically fallacious concept of neglect aggravating an accidental death. Neglect may cause or contribute to a cause of death, natural or unnatural, or indeed suicide, but the remarks as to the rarity of such a verdict should be confined to "accident aggravated by neglect" as was emphasised by Brooke LJ in R v Lincoln Coroner, ex parte Hay  Lloyd's Law Reports, page 264 at page 277. As I have said, I see no merit in commenting upon its rarity in seeking to define neglect in order to assist the jury.
"You have to establish the facts. For example, did someone make a decision? Yes or no. It is not your province to determine whether that decision was right or wrong."
"It is a very, very, narrow definition indeed. First of all there has got to be a gross failure which really means a total and complete failure; to provide adequate nourishment, liquid, et cetera, so it really means doing absolutely nothing. It doesn't mean doing your incompetent best, if that be the situation. It means doing absolutely nothing. It's far more than an error of judgment, if an error of judgment there has been. There's got to be a total and complete failure."
Pausing there, that passage suggests that, since Nurse Spencer did something, namely attended and formed a conclusion, it was not open to the jury to find neglect. But, by way of contrast, shortly afterwards the coroner appears to say the opposite. He told the jury:
"An error of judgment by an individual, being an individual qualified to make that judgment, as to the appropriate medical attention needed by Mr Davies would not amount to a gross failure unless it can be said that their plan was plainly wrong and they would not have allowed the plan ... followed the plan if they were to stop and think about it in the cold light of day."
Whatever one's criticism as to the clarity of that direction, it does at least appear that at that point the coroner was directing the jury that it was open to them to find neglect, notwithstanding the exercise of judgment.
"So Nurse Spencer made her clinical assessment. Whether or not that assessment was right or wrong, as we've said more than once, we're not concerned with. She made that assessment."
"I am still concerned however that a prisoner who may be suffering from withdrawal symptoms may slip through the net because the prison officer or nurse at the Treatment Hatch may not recognise the signs or symptoms. Therefore, the sooner a new prisoner can be seen, assessed and taken under the wing of the Drugs Team the better and although I appreciate that there are staffing and costs implications, I wonder whether a procedure could be introduced to ensure that a prisoner who arrives on a Thursday or Friday is dealt with in the same way as a prisoner who arrives earlier in the week."
Thus, recommendations relevant to the tragic death of the deceased were made. It is difficult, therefore, to see what there is further to be gained from another inquest, when evidence was given so fully on the last occasion and recommendations as to improvements in the system were made. In those circumstances, I decline to quash the verdict or order a fresh inquest. I shall hear argument as to whether any other relief is desirable or necessary.