AT NOTTINGHAM CROWN COURT
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of Helen Takoushis)
- and -
|H.M. CORONER FOR INNER NORTH LONDON
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR. IAIN DANIELS (instructed by Guys & St Thomas' Hospital Trust) for an interested party
Crown Copyright ©
Mr Justice Elias:
(i) the Coroner erred in law by refusing to hold the inquest with a jury; and / or
(ii) the inquiry at the inquest was inadequate because the defendant refused to allow the claimant the opportunity to call expert evidence in relation to the care the deceased received from the Guy's and St Thomas' NHS Trust (the interested party) immediately prior to his death.
The relevant law.
" If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect -
(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public,
he shall proceed to summon a jury in the manner required by subsection (2) above."
"Some limitation has to be placed on the ambit of the word "circumstances" ….. The key to the nature of that limitation is to be found, I think, in the paragraph's concern with the continuance or possible recurrence of the circumstances in question. This indicates to my mind that the paragraph applies to circumstances of such a kind that their continuance or recurrence may reasonably and ought properly to be avoided by the taking of appropriate steps which it is in the power of some responsible body to take. This limitation on the scope of the paragraph may still leave it to operate in a very wide range of cases; but I can find no good reason why we should seek to restrict it any further."
Lord Denning concurred, holding that a jury must be summoned:
"when the circumstances are such that similar fatalities may possibly recur in the future, and it is reasonable to expect that some action should be taken to prevent their recurrence." (p. 226)
The observations of Cairns LJ are to like effect:
"The reference to "recurrence or possible recurrence" indicates to my mind that the provision was intended to apply only to circumstances the continuance or prevention of which was preventable or to some extent controllable. Moreover, since it is prejudicial to the health or safety of the public or a section of the public that is referred to, what is envisaged must I think be something that might be prevented or safeguarded by a public authority or some other person or body whose activities can be said to affect a substantial section of the public." (p.228)
(i) the likelihood of recurrence of the circumstances in which the death occurred; and
(ii) whether there are reasonable measures that could and should be taken to prevent fatalities occurring in similar circumstances in future.
"…One ought simply to look at the words of the statute. They are striking in that the phrase used is "occurred in" and not "caused by". I therefore come to the conclusion that if before the Coroner there are circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of any section of the public and those are circumstances in which the death occurred in the sense of being circumstances present where there has been a death, then causation is not essential. In those circumstances, in the public interest, the paragraph requires that a jury should be called."
The request for a jury.
The basis of the request.
"The medical and nursing staff present at the meeting were of the view that, in light of the nursing assessment and current departmental policy, this patient had been appropriately supervised. In other words, he was interacting, co-operative and thought to be at risk of absconding [sic]."
I pause to note that there should obviously be a "not" inserted before "to be at risk". The report then continues:
"The fact that the initial triage category does not match subsequent action is likely to cause comment.…
The A&E department sees several patients who have attempted or threatened suicide each day, though most are self-referrals. The level of immediate supervision given to these patients depends on the initial nursing assessment. If the patient is felt to be co-operative they do not receive one to one supervision. If the patient does not co-operate, is felt to be at serious risk of absconding, or at risk of immediate self-harm they will be supervised by a member of the security team. There is no formal assessment tool to support decision making. The level of supervision required is only documented when one to one supervision is required."…
"Patients attending A&E following an attempted suicide abscond regularly, though we do not have any figures to quantify this. As this is a common occurrence A&E do not routinely report these incidents but the notes are reviewed the following day."
The minute concluded that:
"The Consultant and Senior Nursing staff in A&E are confident that this patient was treated according to current A&E protocol".
"We have considerable anxiety over the treatment of people in mental health crisis in Accident and Emergency Departments. It appears that St Thomas' Hospital Accident and Emergency Department correctly assessed Mr Takoushis' risk but it seems did not take the necessary steps to ensure that he did not leave. This is unfortunately a common experience. People who are suicidal or acutely psychotic and paranoid are taken to A&E Units, where the experience of waiting alongside people with very different problems can exacerbate their distress and feelings of hopelessness. What is essential for such vulnerable people is immediate contact by the psychiatric team experienced in "talking down" people in acute despair. It is vital that people who are at high-risk of self-harm, such as Mr Takoushis most certainly was, are not left alone and if necessary are prevented from leaving the hospital under restraining powers in the Mental Health Act (1983)"…
"SANE is aware of increasing numbers of psychiatric patients who are being allowed to leave hospital or are being discharged without sufficient follow-up in the community, who subsequently take their own lives."
The Coroner's Decision
"it does not appear to me that there is a reason to suspect that the death of Mr Takoushis occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health of any section of the public."
"On the evidence available at this stage, I am not satisfied that Article 2 of the ECHR has been engaged. Mr Takoushis was a voluntary patient at Chase Farm Hospital. He was not detained by Police under Section 136 of the Mental Health Act. He voluntarily attended the A&E Department at the Guys and St Thomas's Hospital, to where he was taken, again voluntarily, by the London Ambulance Service."
"The document disclosed by the NHS Trust's Legal Services Department dated 19th December 2003 concedes that the initial triage category did not match subsequent action. I am not satisfied that this amounts to "systemic neglect".
"On the evidence available before the inquest, I am and remain satisfied that the State's obligation in relation to Mr Takoushis at the A&E Department at St Thomas' Hospital had been discharged by virtue of the fact that there were triage and assessment procedures… I will be establishing as of fact timings in relation to his assessment and absconding from the A&E Department at the St Thomas' Hospital. The fact that there was a delay has not, in my opinion, meant that there were systemic failings. Factually, I find that there was a narrow issue that will be explored in relation to the timings of the initial assessment and the time of him absconding. This may or may not be an error, but it does not necessarily imply a systemic failing. I'm therefore satisfied that the circumstances do not require me to proceed with a jury".
" If, after hearing the evidence, I am satisfied that I should make a Rule 43 recommendation or report, then I will do so, but that possibility is ancillary to the inquest the scope of which is to determine who Mr Takoushis was, how, when and where Mr Takoushis died and the registration particulars."
He then went on to state:
"It's my view that the circumstances boil down to a delay, a delay between the assessment or the initial assessment and then a formal assessment by a psychiatric liaison nurse and a junior doctor and then what would have followed from that. That kind of error, if it is an error, is something which can occur as an individual or a specific episode. I don't regard them as circumstances broad or general circumstances, systemic circumstances that are likely to continue or recur and that's why I don't feel that this is a case where I am persuaded under section 8(3)(d) to proceed with a jury."
"From this Court's experience of the practice, protocols and procedure of A&E Departments in acute NHS Trusts within this jurisdiction… I was satisfied that action has been taken by NHS bodies generally to recognise the risk of psychiatric patients in an A&E setting… I was therefore satisfied that St Thomas' Hospital had already taken action and that there was a reasonable system for voluntary psychiatric patients who appear to be at risk of self-harm but on their symptoms and denial of intent not at immediate risk of self harm. Despite these symptoms these patients do abscond and despite reasonable systems to assess them and treat them and prevent them from absconding."
"It was not the intention of Parliament or the Department of Health to render clinical improvements to patient care as a cause to subject previous reasonable systems to scrutiny in the courts. Deaths occur sadly even where there are reasonable systems."
Grounds of Application for Judicial Review
Ground 1: refusal to summon a jury
Ground 2: insufficiency of inquiry