England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINSTRATIVE COURT
AT NOTTINGHAM CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 December 2004

Mr Justice Elias:

Introduction

1. This is an application for judicial review. It arises out of the inquest into the death of a 64-year-old-man, whose body was found in the river Thames on 14 February 2003. There are essentially two grounds to the claim:

(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.

2. The claimant seeks an order quashing the inquest which was formally opened on the 24 February 2003, was resumed on 3 March 2004 and continued on the 4 March. She also seeks an order that a fresh inquest be held with a jury.
3. The claimant and the interested party have been represented before me by Ms Brander and Mr Daniels respectively. I am grateful to them both for the quality of their submissions. The Coroner was not represented. He has, however, helpfully provided a witness statement for the assistance of the Court.

The facts

4. The deceased, Pavlos Takoushis, was the husband of the claimant. He was a long-term schizophrenic who had been treated periodically in psychiatric hospitals, both voluntarily and involuntarily, since he was first diagnosed with the illness in 1974.
5. On 9 January 2003 he was admitted to Chase Farm Hospital as a voluntary patient. On 13 January, at approximately 11.15am, Mr Takoushis obtained permission to leave the ward to visit the day hospital within the hospital grounds. He did not return.
6. He was next seen at about midday apparently preparing to jump off Tower Bridge. He had his legs over the parapet of the bridge and he was being pulled back from the edge by an American tourist. This was witnessed by a member of the public who was passing, Mr Jeff Wilcox. Mr Wilcox was concerned by Mr Takoushis' behaviour and decided to follow him. After Mr Takoushis had made several more approaches towards the river edge, Mr Wilcox decided to call the emergency services.
7. Police arrived, followed by an ambulance crew. Mr Wilcox told the officers what he had seen. Another officer, PC Prole, spoke to Mr Takoushis and suggested that he go to hospital. Mr Takoushis agreed. PC Prole stated in his evidence at the inquest that he was concerned about Mr Takoushis' safety at that point and had Mr Takoushis not agreed to go to the hospital voluntarily, he would have considered his powers to detain him and remove him to a place of safety under section 136 of the Mental Health Act 1983. In the event, however, he did not need to use this power.
8. Mr Takoushis informed one of the other officers present that he was taking a drug for his illness. (He apparently said that it was "Promazone" but presumably meant Promazine, a low-potency anti-psychotic medication.) He did not, however, mention that he was currently an in-patient at the Chase Farm Hospital.
9. Mr Takoushis was then taken by ambulance to St Thomas' Hospital Accident and Emergency Department. The information regarding Mr Takoushis' medication was not passed on to the ambulance crew.
10. Mr Takoushis arrived at St Thomas' A&E at about 13.00 hrs. The ambulance staff explained to a staff nurse Blake, who was the triage nurse on duty at that time, that Mr Takoushis had been found trying to jump off Tower Bridge. Nurse Blake took Mr Takoushis to a cubicle used for patients with potential mental health problems.
11. The Trust has a system in place for assessing the needs of psychiatric patients who present themselves at the A & E department. This was based on a document termed the Manchester Triage Mental Health Flowchart. It involves the clinical prioritisation of patients including those with mental health problems.
12. In this case Nurse Blake triaged Mr Takoushis as being category 2 (to be seen by a doctor within 10 minutes). This is the most urgent category possible for a psychiatric patient unless he or she has in addition sustained life-threatening physical trauma, requiring, for example, immediate resuscitation. She also recorded that he was at "high risk of self harm".
13. Nurse Blake then contacted a psychiatric liaison nurse, who stated that Mr Takoushis would have to be seen by a medical doctor before she could attend to him. This was in accordance with the protocol then in place. At about 13.35hrs, Nurse Blake handed over to a colleague, Elaine Brown.
14. It appears that Mr Takoushis was then left alone in his cubicle until 13.55hrs, when he was offered an analgesic. At 14.00hrs, a Dr Fritz, attended to see Mr Takoushis, but he was nowhere to be found. Unfortunately this was almost an hour after the patient's arrival, well beyond the 10 minutes envisaged by the system.
15. Just before 15.00hrs, an office worker at St Katherine's Way saw a man jump into the Thames at St Katherine's Dock. Her description of the man fitted that of Mr Takoushis. His body was recovered some five weeks later, on the 14 February, from the River Thames at Wapping.

The relevant law.

16. The circumstances in which a Coroner is obliged to summon a jury are identified in the Coroner's Act 1988. They include cases of death in prison or in police custody. The relevant provision in issue here is section 8(3)(d) which provides:

" 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."

17. There are four features to note about this section. The first is that the decision is in the first place that of the Coroner. It is only if it appears to him that the condition is met that a jury needs to be summoned. It follows that the task of the court is the traditional reviewing function; it can only interfere if the Coroner has misdirected himself in some material respect or reached a decision on the facts which no reasonable Coroner could properly reach: see the observations of Taylor LJ, as he was, in R v Inner London Coroner Ex parte Linnane [1989] 1 WLR at 398 and of Woolf J, as he was, in R v H.M.Coroner for the Eastern District for the Metropolitan County of West Yorkshire ex parte N.U.M 150 JP 58. Second, if it does appear to the Coroner that the relevant conditions are satisfied then he is obliged to summon a jury. Third, there is no apparent restriction on the evidence which the Coroner may consider when making his decision. This again is confirmed in the Linnane case where Taylor LJ commented that "the phrase…. "reason to suspect" does not require positive proof or even formulated evidence…..Therefore any information giving "reason to suspect" will suffice." (p.398). Finally, although the decision is usually taken prior to the inquest being commenced, it is one which is effectively under review throughout. If evidence emerges during the course of the inquest which causes the Coroner to take the view, contrary to his initial impression, that the conditions are satisfied, he must at that point adjourn the inquest and summon a jury. At the initial stage therefore, he is necessarily making his decision in the light of the statements and other material he has before him.
18. The leading case on the meaning and scope of this provision is R v Her Majesty's Coroner at Hammersmith, ex parte Peach [1980] QB 211. That case was concerned with the meaning of section 13(2)(e) of the Coroners (Amendment) Act 1926, a precursor to section 8(3)(d) but the wording is not materially different to the current provision and the analysis remains applicable. Bridge LJ, as he then was, held at p.226-7:

"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)

19. It is not disputed that this analysis identifies two factors or conditions each of which must be satisfied before a jury is required to be summoned under this provision:

(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.

20. The point about the likelihood of recurrence is that it suggests that the problem may be a systemic one; it may arise because of the way the system operates (or fails to operate) rather than being a specific individualised failing in the system. The effect of these conditions in this case, therefore, is that the jury should be summoned if it appears to the Coroner that there is reason to suspect that the death has occurred in circumstances where there is a failure of the system employed by the hospital which failure could be obviated by reasonable measures which the hospital ought to take. In this connection it is pertinent to note that, as the Divisional Court held in Linnane, it is not necessary that any such failings should have been the cause of the death; it is enough that they are the context in which the death occurred. This was an issue directly raised in the Linnane case. Taylor LJ said this:

"…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."

21. I mention this because in my view it cannot be said that the death in this case was the result of a defective system. There was a system in place and had it been complied with then the patient would have been seen. But the claimant submits that the system adopted was inadequate and that the death occurred in circumstances where that inadequate system was in place which was prejudicial to the health and safety of this section of the public.

The request for a jury.

22. Numerous written requests were made to the Coroner on behalf of the Claimant asking him to summon a jury on the basis that s.8(3)(d) of the Coroner's Act 1988 was satisfied. The Coroner was also advised of the Claimant's intention to seek expert advice in relation to the adequacy of St Thomas' policies governing the treatment of individuals posing a risk of self-harm, and on two occasions the Claimant's solicitors requested that the hearing of the inquest be adjourned from 3 March 2004, in order to allow sufficient time for expert evidence to be called.

The basis of the request.

23. The basis of the request for a jury was that the ease with which Mr Takoushis left the A&E department highlighted a failing in the system. The claimant relied upon three pieces of evidence which, she submitted, demonstrated beyond doubt that there were such systemic failings.
24. The first source of evidence was an internal investigation carried out by the hospital itself in the light of this particular tragedy. On 19 February 2003 what is termed an "incident meeting" was held at St Thomas' Hospital "to review the chronology, consider whether the Trust policy had been followed and to consider whether the care of this patient had been reasonable and appropriate." The minutes of this meeting record:

"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".

25. The second piece of evidence was a letter written from the Chief Executive of the Mental Health charity SANE, stating:

"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."

26. Finally there was a reference to the fact that the Metropolitan Police had established a strategic group aimed at the prevention of suicide or homicide by people with serious mental illness, in part to prevent the type of circumstances that led to the death of Mr Takoushis.
27. The claimant also referred to further evidence which has come to light since the Coroner's ruling and which, she claims, further demonstrates that the circumstances of Mr Takoushis' death are far from being a one-off occurrence. However, since that material was not before the Coroner, it cannot assist the claimant's case and I say no more about it.
28. I should add that as a consequence of this incident, the procedures adopted by the Trust have been changed. There is now a joint mental health and psychiatric assessment with the doctor and the psychiatric liaison nurse; and a member of the security staff will provide one to one supervision until the full assessment is made. In addition, improvements have been made to the method of assessment. These changes were made prior to the inquest.

The Coroner's Decision

29. The Coroner first gave a written response on the 1 March shortly before the inquest was heard. He did not have the SANE letter before him at that stage but he had received the minutes of the St Thomas' review. The Coroner concluded:

"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 19^th December 2003 concedes that the initial triage category did not match subsequent action. I am not satisfied that this amounts to "systemic neglect".

30. The Claimant's application for a jury to be summoned and to obtain expert evidence (with a necessary adjournment) was renewed by way of written submissions at the hearing on 3 March 2004.
31. Those applications were again rejected. The Defendant ruled that the inquest would proceed on that date. In so doing, he stated:

"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".

32. He went on to hold that even if Article 2 was engaged, the inquiry he was conducting, even without a jury, would discharge the State's obligation into investigating the full circumstances of Mr Takoushis' death. He added:

" 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."

33. The Defendant was reminded by counsel for the Claimant that the Hospital's own internal report had noted that "Patients attending A&E following an attempted suicide abscond regularly" and that therefore, it was impossible to view this is as a one-off occurrence. However, the Defendant responded that "that kind of comment is obviously a hostage to fortune" and that he was "aware from previous experience that there is a difficulty about how to deal with a voluntary patient who attends then absconds before being assessed."
34. The Coroner then proceeded with the inquest. At the conclusion of the evidence, he heard submissions from the Claimant's representative about potential verdicts. He was urged, on behalf of the Claimant, to consider a verdict of suicide contributed to by neglect. He reserved his verdict until the following day, when he returned a verdict of suicide. He rejected the suggestion that there had been any evidence of systemic neglect, stating that:

"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."

35. He then dealt specifically with the fact that the Trust had made improvements in the system and commented that the fact that the standard was improved did not prove that the original system was unreasonable:

"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

36. It is submitted that the circumstances of Mr Takoushis' death were such that the summoning of a jury to sit at the inquest into his death was mandatory under section 8(3)(d) of the Coroners Act 1988. The claimant contends that the finding that the conditions of that subsection were not met is perverse. She says that both limbs of the test adopted in Peach were clearly satisfied.
37. First, as to the likelihood of recurrence, the claimant submitted that the evidence demonstrated very strongly that the circumstances of Mr Takoushis' death were not a one-off event. The Guy's and St Thomas' own internal inquiry into the circumstances of Mr Takoushis' death recorded that patients attending A&E following an attempted suicide abscond regularly. Whilst that in itself does not prove that all of those who abscond subsequently go on to take their own lives, the SANE letter confirmed that a proportion of them do. Indeed, Mr Daniels for the Trust did not seriously contest this point.
38. He did, however, suggest that this letter was not appropriate evidence to consider since it came from someone expressing views who was not a witness at the inquest, and had not disclosed relevant statistics. I do not think that submission can be right in the light of the observations of Taylor LJ in the Linnane case, to which I have made reference, as to the very wide category of material which may be considered.
39. I do not think that the Coroner did say in his decision that the circumstances themselves were unique or a one off event. He did, however, advert to this in the witness statement which was lodged for the purposes of this application. In paragraph 22 of that statement he states that in the 22 months during which he has been HM Coroner for Inner North London, Mr Takoushis' case has been the only case of a voluntary psychiatric patient absconding from an A&E Department and killing himself. On the basis of this experience, he goes on to conclude that "There is therefore no evidence within this jurisdiction to support the assertion made by Marjorie Wallace, the Chief Executive of SANE… I am not aware of any evidence which would support the assertion that mentally ill individuals are regularly absconding from A&E Departments and committing suicide shortly thereafter."
40. I agree with the submissions of the claimant that this is not a conclusion which the Coroner could properly reach, given the volume of evidence which demonstrates that the situation of Mr Takoushis is sadly not atypical. To the extent that he based his conclusion not to summon a jury on this factor, I would accept that it was perverse. There was plainly reason to suspect that this was a recurring problem.
41. However, that is not the end of the matter because it is clear that the principal ground on which the Coroner rejected the application was under the second limb in Peach. He considered that the procedures adopted at the hospital were reasonable and, at least by inference, that it was not reasonable to expect more rigorous procedures to be adopted. He was plainly of the view that there would inevitably in some cases be absconding followed by suicide whichever system was adopted.
42. The claimant submitted that there were three defects in this approach. First, St Thomas' itself admitted that it had no formal assessment tool to assist decision making. Second, she contended that there should be active consideration of the powers to detain compulsorily in such situations; and finally, that even if such powers are not available, more effective procedures could be adopted to seek to persuade patients who are minded to leave hospital before being seen from doing so.
43. Mr Daniels for the Trust says in response that the Coroner was entitled to form the view that the hospital had already adopted procedures which were reasonable. St Thomas' operated the triage system which ought to have resulted in Mr Takoushis being seen within 10 minutes. That system was in line with national guidelines. In fact the system failed and Mr Takoushis was not seen when he ought to have been, but that was not a systemic failure but rather a specific failure where the system was not properly implemented. The Coroner specifically stated that he considered it reasonable to expect such a patient to wait for ten minutes. Moreover, as Mr Daniels pointed out, although there was at the time no formal assessment in place, it was not the case that there was no system at all. Consideration was given as to whether the patient should be supervised by a member of the security team, depending on whether the patient was being cooperative or not or assessed to be at risk of self-harm.
44. The issue which this case raises is whether the Coroner must summon a jury in circumstances where he considers the system to be reasonable but where the evidence also suggests that improvements could be made. In my judgment the Coroner was entitled to take the view that there were satisfactory systems in place to deal with this particular problem and the hospital should not be obliged to do more. I confess that I was initially concerned by the fact that the Trust itself has made certain changes to the system which was in place at the material time, partly as a response to what occurred in this case. That obviously demonstrates that the system was not ideal and could be improved. There were steps which the Trust itself thought would provide greater safeguards for those in the position of Mr Takoushis. But it seems to me that the approach of the Court of Appeal in Peach does not require the Coroner to consider whether the system is the best available but merely whether it appears that there are changes which it could reasonably make and which it ought to make. No doubt systems will go on improving, but it does not follow that the original system can properly be described as defective so that one can say that the death results from a systemic failure. Moreover, in this case the Coroner specifically referred to the improvements in the system and took this into account when reaching his decision.
45. Accordingly, whilst I consider that the Coroner could not reasonably have concluded that the first limb of the Peach test was satisfied, in my judgment he was entitled to take the view that there was no reason to suspect that the death occurred in the context of a defective system which the Trust ought reasonably to have changed. It follows that this particular challenge fails.

Ground 2: insufficiency of inquiry

46. I turn to the second ground, namely insufficiency of the inquiry. It seems to me that for the reasons advanced by Mr Daniels, this argument falls with the first ground. I can understand the argument that expert evidence should be made available if the system itself is under consideration. There may then be a debate as to what a reasonable system requires and how the system may be improved. In addition there may be evidence, for example, about what is done in other hospitals or even other countries. But once the focus is on the specific error, namely the failure properly to implement the system which meant that Mr Takoushis did not see the doctor in ten minutes, then it is difficult to identify any significant role for an expert of the kind which the claimant wished to call.
47. Ms Brander realistically recognised that her task under this head was made more difficult if she failed under the first head, but she contended that nonetheless this second argument should succeed. Essentially she did so on two grounds. The first was that Article 2 of the European Convention on Human Rights imposes a procedural obligation on the State to carry out a proper independent investigation into the cause of death. She accepts, as the House of Lords made clear in R (Middleton) v West Somerset Coroner [2004] 2 AC 182; [2004] UKHL 10, that the Coroner's inquest is in principle an appropriate compliance with the procedural duty imposed by Article 2. (I should point out that the inquest was carried out before the House of Lords had determined that case but that does not affect this point.) It is now well established that to be Article 2 compliant an investigation must be practically as well as institutionally independent and must involve the family to the extent necessary to protect its interests: see the decision of the House of Lords in R (Anim) v Secretary of State for the Home Department [1004] 1AC 653;[2003] UKHL 51. The claimant submitted that this principle entitled her to call her own evidence, including expert evidence. It was contended that she could not properly cross-examine the witnesses from St Thomas' without such a right.
48. The second ground was that since the Trust was permitted to call an expert who did in fact comment on the adequacy of the system adopted by the Trust, fairness required that the family should have an equal right to call an expert. I shall deal with each ground in turn.
49. The Trust accepted that Article 2 was engaged in this case, given that Mr Takoushis was under the care of the hospital. I see force in the argument that Article 2 is engaged where a death arises from potentially negligent treatment (or lack of treatment) by a hospital, but in view of the concession I did not analyse the case law. I shall assume that the concession is rightly made for the purposes of this application.
50. Mr Daniels accepted that the family must be appropriately involved but submitted that this does not mean that the family can effectively select who will be a witness to the inquest. It is an inquisitorial and not an adversarial procedure and the Coroner has a wide discretion to decide which witnesses will assist him by giving evidence. He also submitted that the decision not to let the family's representatives adduce their own expert evidence does not begin to compromise the Coroner's independence. Moreover, the claimant was not precluded from instructing an expert for the purposes of assisting counsel in cross-examination; she was merely prevented from insisting on that expert giving evidence.
51. I agree with these observations. It is not, and could not be suggested that the Coroner was motivated by any bias against the family. He made a decision as to the witnesses to be called which was, in my judgment, well within his discretion, particularly given his preliminary view on the question of systemic failure. The claimant relied upon some observations in Amin to the effect that it is important that culpable and discreditable conduct should come to light and dangerous procedures rectified (per Lord Bingham at para 31). But the Coroner clearly was of the opinion, which I consider that he was entirely justified in forming, that there was no question of such culpable conduct here.
52. The alternative way in which this complaint is put is that Dr O'Connor was an expert whose evidence was designed to advance the interests of the Trust and that accordingly it was unfair not to permit the family to adduce its own expert. Of course the Coroner must act fairly in conducting the inquest. It is true that Dr O'Connor was working at the Trust but he was not involved in the particular incident. Indeed, he gave evidence on the procedures adopted by the Trust at that time. Having considered his evidence I have to say that I do not think it right to describe him as an expert generally on the kind of system which might be adopted in cases of this kind, and he did not seek to give evidence of that nature. His evidence was about how the system in the particular hospital was designed to operate, how it related to national standards, and how it was implemented on this occasion. His evidence was not technical or clinical in nature. It is true that he did stray a little wider under questioning from the Coroner, but principally in answering factual questions. Moreover, as I have said and as Ms Brander accepted, there is a general discretion on the Coroner to decide which evidence would be likely to assist him and which would not. His decision not to call for more evidence on this issue was in my judgment fully justified, particularly given his view that there was no basis for saying that there had been a defective system in play. In any event it did not amount to an improper exercise of discretion.
53. Accordingly whilst I have every sympathy for the family, who plainly think that there was more which the hospital could and should have done, I conclude that the legal challenge to the decision of the Coroner fails.