England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

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

Mr Justice Richards :

1. Mr Harry Coleman died on 26 February 2003 at the Luton and Dunstable Hospital at the age of 83, following an elective procedure to deal with gallstones. At an inquest held on 1 July 2003 by Mr David Morris, HM Coroner for Bedfordshire and Luton, a verdict of death by misadventure was recorded. Before and during the inquest the coroner refused applications by the deceased's family (1) that the inquest should be conducted as an investigation for the purposes of article 2 of the European Convention on Human Rights, and (2) that he should instruct a medical expert independent of the Luton and Dunstable Hospital to review the treatment provided to the deceased and to prepare a report, and that he should adjourn the inquest in order to do so. The coroner's written reasons for refusing those applications were given on 22 December 2003. By these proceedings the deceased's daughter, acting on behalf of the family, challenges the lawfulness of the coroner's refusal of those applications and seeks to have the inquest verdict quashed.
2. The matter came before me as the hearing of an application for permission, with the substantive hearing to follow immediately if permission was granted. In the event I heard full argument and reserved my judgment. Having considered the arguments I take the view that I should grant permission even though, for the reasons given below, my overall conclusion on the substantive claim is adverse to the claimant.
3. The essential issues are (1) whether the procedural obligation under article 2 to investigate a death is engaged in the circumstances of this case, (2) if so, whether the inquest as held complied with that obligation, and (3) if article 2 did not apply, whether it was nevertheless unlawful for the coroner to proceed as he did.

Facts

4. As a result of tests carried out in January 2003, Mr Coleman, who was otherwise in reasonably good health, was diagnosed as having a gallstone problem. Arrangements were made for him to be admitted to the Luton and Dunstable Hospital for an "ERCP" (endoscopic retrograde cholangio-pancreatography), sphincterotomy and stone extraction. He was admitted at 9.00 hours on 25 February 2003. His temperature was 37ºC, pulse 80/min and blood pressure 136/72. It was noted that his chest was clear and his abdomen was soft and non-tender. A consent form was signed.
5. The relevant procedure was carried out that afternoon. At the time it was thought to have been straightforward. A report timed at 15.23 and prepared by Miss Cheslyn-Curtis, the consultant surgeon who carried out the procedure, stated:

"Report

There was nothing precluding the procedure on history or physical examination. The patient tolerated the procedure well. Oxygen saturation was not less than 96% during the procedure. Oxygen was delivered at 4 litres per minute.

The major papilla was located in the second part of the duodenum. It was normal in size.

Pancreatic duct cannulation via the major papilla was not attempted. The bile duct was cannulated via the major papilla.

The intrahepatic ducts were normal. The gallbladder was not visualized. In the lower 1/3 bile duct multiple radiolucent stones were evident. The largest was 1-2 cm in diameter.

In the mid 1/3 bile duct multiple radiolucent stones were found. The largest was 0.5-1 cm in diameter. There was dilation to 12-15 mm.

Sphincterotomy performed with DASH and multiple soft stones extracted with basket.

…

Procedures.

A 10 mm sphincterotomy was undertaken with a dash papillotome. Minor bleeding occurred. The biliary stones were completely extracted with a basket.

Final disposition

Return to ward. Review in Outpatients in 6 weeks."

6. At 17.30 the nursing notes state that Mr Coleman had returned to the ward from ERCP and that his observations were stable.
7. At 18.30 the nurses noted that he was complaining of abdominal pain. The surgical house officer was bleeped, but did not see him until 22.00. At that time Mr Coleman was noted to have been complaining of abdominal pain since his ERCP. On examination he was noted to be apyrexial with heart rate of 100 and blood pressure of 120/80. His abdomen was distended with generalised tenderness. He was given intravenous doses of Ciprofloxacin and Gentamicin. In addition, the senior house officer was asked to review him.
8. On reviewing him at 22.30, the senior house officer found the abdomen to be distended and formed the impression that there was an ileus with gastric dilation. Tests were organised.
9. At 00.15 on 26 February Mr Coleman was seen by Mr Gupta, specialist registrar, who diagnosed free air under the diaphragm. He discussed Mr Coleman's condition with Miss Cheslyn-Curtis and the management plan was recorded to be for "expectant treatment overnight". A urinary catheter was inserted at 00.30 and intravenous administration of Dextro-saline was commenced.
10. The observation chart shows that at 02.00 Mr Coleman had a pulse of 120/min, a respiratory rate increase to 20/min, and lower blood oxygen saturations than during the original procedure. His urine output was 27 mls between 01.00 and 02.00 hours and was below 20 mls per hour for the next four hours. At 05.20 there is an entry in the nursing notes that he was complaining of pain and had a distended abdomen. His oxygen saturations were dropping. The house officer was informed but did not attend at that time.
11. At 08.00 there is an entry that the abdomen was still distended and tense. At 08.30 the doctors were informed that blood pressure had fallen to 90/60, pulse had risen to 110/min and oxygen saturations were 88%.
12. The notes show that at 09.00 Mr Coleman was seen by the doctors, who queried whether there had been a perforation of the duodenum and raised the possibility of surgery. At 10.00 Mr Gupta discussed his condition with Miss Cheslyn-Curtis. The notes indicate a planned laparotomy and oversew of the presumed duodenal perforation. The family was informed of the situation.
13. At 11.25 Mr Coleman was seen by a doctor from the intensive care unit, who noted that he was awake but confused, had a blood pressure of 106/60 with a pulse of 110, was cold and peripherally shut down, and had a poor urine output. His opinion was that Mr Coleman needed to be transferred to the high dependency unit for central venous pressure measurement and fluid resuscitation for pre-operative optimisation prior to laparotomy.
14. At 11.45 Mr Coleman had a cardiac arrest. An entry by the medical registrar on call records that cardiopulmonary resuscitation was commenced and run for three minutes, then stopped in view of Mr Coleman's co-morbid condition. Death was confirmed at 11.50.
15. The circumstances of Mr Coleman's death appear to have been communicated by one of the doctors to the coroner by telephone. The coroner ordered a post mortem.
16. The pathologist who conducted the post mortem, Dr Ian Calder, found an oval full thickness tear of 0.9 cm maximum dimension on the anterior surface of the duodenum. The lower margin was lightly adherent to the posterior surface of the hepatic flexure of the colon, in which there was a similar perforation. The post mortem report concluded:

"Comment

The immediate cause of death was due to peritonitis due to the escape of gut contents from the duodenum and small bowel. The appearances showed some minimal tethering between duodenum and colon, and this could suggest that this had been established before the operative procedure had taken place. This would therefore mean that the duodenum would not be mobile and therefore more easily subject to perforation from an instrument forced against the mucosa ….

Cause of death

1 (a) Organising peritonitis [due to or as a consequence of]

(b) Traumatic perforation of duodenum and colon [due to or as consequence of]

(c) Operative procedure for exploration of bile duct."

17. The pathologist found no other significant conditions contributing to death, nor did he find any other morbid conditions present.
18. In addition to the medical records and pathologist's report, the coroner had available to him a letter from Mr Coleman's GP, which provided some background information, and a medical report dated 25 March 2003 from the consultant surgeon, Miss Cheslyn-Curtis. Miss Cheslyn-Curtis's report first described the tests carried out on Mr Coleman in January 2003 which resulted in him being seen by her as an outpatient on 22 January. The report continued:

"He came to the clinic with one of his daughters. He was reported to be more or less back to normal apart from being slightly confused and was living at home with his disabled wife, with carers and three daughters supporting them. The management of patients with bile duct and gallbladder stones is to perform an ERCP, sphincterotomy and removal of the bile duct stones followed by a laparoscopic cholecystectomy to remove the gallbladder. In an elderly, frail patient it is normal practice to perform an ERCP, sphincterotomy and remove the bile duct stones but to leave the gallbladder in situ. I recommended that Mr Coleman underwent an ERCP to remove the bile duct stones and I did not think that he was fit enough to undergo an operation to remove the gallbladder.

I made arrangements for him to be admitted for the procedure on 25^th February 2003. Mr Y Kan, my Specialist Registrar saw Mr Coleman with his daughter before the procedure and took consent. He explained the possible complications of pancreatitis, bleeding and bowel perforation …. ERCP was performed between 15.00 hours and 16.00 hours under light intravenous sedation ….

The endoscope was passed through the oesophagus, stomach and into the duodenum. The duodenal wall appeared almost translucent and was thought to be very thin making the risk of perforation higher. The bile duct was cannulated and contrast injected which revealed at least four large 1.5 cm diameter square stones within the bile duct. These type of stones can be difficult to remove but in Mr Coleman they came out easily. A sphincterotomy was performed to enlarge the opening into the bile duct so that the stones could be removed. A wire basket was passed into the bile duct to catch a stone and using a standard technique the stone was pulled into the duodenum. This was repeated until all the stones were removed. The stones were released into the duodenum and spontaneously passed on defecation. The bile duct was successfully cleared of stones. It was thought to be a straightforward procedure.

He was returned to the ward by 16.00 hours and at 22.30 hours he was seen by the Senior House Officer because he was confused and his abdomen was distended. Blood tests were performed which were unremarkable and the results were similar to those performed before the procedure. The amylase was slightly elevated which always occurs following an ERCP. His chest and abdomen were x-rayed and free gas was visible outside the bowel. He was reviewed by Mr Gupta, Specialist Surgical Registrar (who is taking up a Consultant Surgeon's post on 1^st April 2003) and he rang me at 00.30 hours. We thought that there must have been a perforation to the bowel during the procedure and that the patient should be managed conservatively for a few hours in an attempt to optimise his condition for a possible operation. As stated earlier I had major concerns about him surviving an operation. He was reviewed in the morning by Mr Gupta and Mr Kan, both Specialist Surgical Registrars, the Anaesthetic Registrar and Consultant Anaesthetist Dr Roud-Mayne. He was not fit to undergo operation but an operation was not ruled out and attempts were made to improve his condition. He continued to deteriorate and had a cardiac arrest at 11.45 hours on 26^th February. I spoke with the family (three daughters, wife and other family members) at 12.30 hours …."

19. In an additional set of written comments on her report, Miss Cheslyn-Curtis stated (omitting references):

"Choice of treatment and complications

ERCP and sphincterotomy is a minimally invasive procedure, which is performed under sedation. There is a small but significant risk of complications (6-10%) and mortality (1.3%) related to the procedure, which is higher in elderly patients. In the past the only means of treatment was by operation, which in patients over seventy-years old carried a much higher risk of complication (22%) and death 8-10%. The post-mortem revealed a perforation of the third part of the duodenum into the colon where the colon was abnormally fixed to the duodenum.

I postulate the following mechanism of injury. To remove a stone the basket containing the stone is pulled into the lower bile duct, the endoscope tip straightened and the scope made to rotate to the right. The basket and stone pop out of the bile duct into the duodenum. If the duodenum is thin walled and not sufficiently mobile to move with the endoscope there is higher risk of perforation as in this patient. Patients normally survive for several days with a bowel perforation and I believe that his rapid deterioration was related to his age and general frailty.

Personal experience

I have been a Consultant Surgeon specialising in pancreato-biliary surgery for ten years at the Luton and Dunstable Hospital and take tertiary referrals from the four hospitals in Hertfordshire. I was trained in ERCP by Dr Peter Cotton who pioneered the technique of ERCP. I perform 90% of the ERCP's at the Luton and Dunstable Hospital, which amounts to twelve hundred procedures over ten years. The overall death rate has been 0.25% (three deaths) and two patients have died following the extraction of bile duct stones."

20. By a letter of 3 June 2003 the coroner's office informed the claimant's solicitors that the only witnesses the coroner intended calling at the inquest were Dr Calder and Miss Cheslyn-Curtis. The solicitors replied by letter of 10 June, enclosing written submissions and stating in the letter:

"You will see from the submissions put forward that we consider that Mr Coleman died at the hands of a public body namely the NHS and as such Article 2 of the ECHR is engaged and your enquiry should consider whether there has been a system failure in relation to Mr Coleman's care since the authorities at the Luton & Dunstable Hospital knew or ought to have known that a perforation of the bowel left untreated, or treated 'conservatively' would result in his inevitable death.

We consider that Mr Coleman's condition required a prompt laparotomy to be performed and we are of the view that the failure in the system meant that Mr Coleman did not receive the necessary emergency care which would have saved his life.

The only medical evidence you are proposing to rely upon is the medical review expressed by Miss Cheslyn-Curtis and as she is employed by the Luton & Dunstable Hospital it will be necessary for you to seek the views of an independent surgeon who can consider the notes and records and advise you on the level and standard of care provided to Mr Coleman. Without such independent evidence the inquest would be regarded as an insufficient inquiry and would be subject to judicial review.

We also believe that the account given by Mss Cheslyn-Curtis is not borne out by the clinical notes and therefore further statements or reports should be obtained from the other clinicians involved.

We would therefore request that the inquest be adjourned from 1 July, that you consider whether or not Article 2 is engaged and you confirm that you will be instructing an independent expert to review the notes and records and prepare a report."

21. The response from the coroner's office was that he intended to continue with the inquest on 1 July and he did not feel that Article 2 was engaged, but that should any further evidence come to light on 1 July that would warrant an adjournment he would take that course of action.
22. The conduct of the inquest itself, on 1 July 2003, is described as follows in the coroner's own witness statement:

"8. Having considered the statements and evidence obtained, I started the Inquest by hearing the two applications, made by the Claimant's solicitor, for (1) the Inquest to be conducted as an enquiry for the purposes of article 2; and (2) for an independent medical expert to be instructed. These applications were refused, although I agreed to review this decision at the end of the Inquest once I had heard all the evidence.

9. I then called Mrs Goodson followed by Dr Calder. As Dr is a Forensic Pathologist who is very experienced in carrying out autopsies relating to hospital deaths and recognising signs of negligence, once I had heard his evidence, I asked him to remain for the duration of the Inquest in case I needed to re-call him. I then called Miss Cheslyn-Curtis followed by Mr Gupta, the then specialist Senior Registrar (now a consultant at another hospital Trust).

10. In the light of the evidence I had then heard, I re-called Miss Cheslyn-Curtis and Dr Calder who were re-examined on the further evidence and who were both able to provide their further comments on this. Finally, having heard all the evidence, I then heard further submissions from the Claimant's solicitor in relation to his previous applications. As I was well aware that my decision might be one that the Claimant's solicitor would seek to review, I retired for a short time to consider these further submissions in the light of all the evidence. However, I was satisfied that there were no signs of any negligence and that this was not a case which called for further independent evidence. Had further expert evidence been required, I would have obtained it."

23. The coroner's inquisition adopted the findings of the post mortem report with regard to the injury or disease causing death, and recorded a conclusion of death by misadventure. In relation to the time, place and circumstances at or in which injury was sustained, it stated:

"On 25.2.2003 he was admitted to Hospital for elective operation necessary for his diagnosed condition. ERCP procedure caused a perforation of the duodenum which unusually had fused with the colon. Despite subsequent and appropriate treatment and care he died on [26].2.2003 at 11.45 a.m."

24. On 22 December 2003 the coroner gave written reasons for his rejection of the applications made on behalf of the claimant at the inquest. Those reasons contain an outline of the evidence and of the coroner's findings on that evidence. Having described the position up to and including the performance of the ERCP procedure, the coroner continues:

"The evidence of precisely what transpired and how Mr Coleman's condition progressed or deteriorated between his return to the Ward at about 1600 hrs and his examination by the Senior House Officer at about 2200 hours is open to differing interpretations, but I am satisfied that from that time the facts are clear and that, whatever the intervening events, the outcome would have been no different. At 2230 hours the Senior House Officer carried out a thorough examination and undertook a recognised series of tests when Mr Coleman appeared confused and his abdomen was noticeably extended. Many of his findings were within normal recovery expectations. Nevertheless, he was later reviewed by Mr Gupta, the Specialist Senior Registrar (now a Consultant) who concluded that there may have been a perforation of the bowel during the ERCP procedure. Around midnight he spoke with Miss Cheslyn-Curtis and it was decided that Mr Coleman should be monitored overnight in the hope that his condition would improve sufficiently to enable a decision to be made as to whether further surgery could and should be undertaken. It was the clinical decision of Dr Gupta in consultation with Miss Cheslyn-Curtis that Mr Coleman might not survive any major and intrusive operation. He was reviewed subsequently and regularly by senior doctors but was never considered fit for an operation before he suffered a fatal cardiac arrest at 1145 hours on 26 February 2003.

The post mortem evidence revealed, inter alia, that there was an established adhesion between the duodenum and colon which would have inhibited the mobility of the thin tissue of the duodenum and more readily subjected it to a perforation of both. The medical cause of death was 1(a) Organising Peritonitis, (b) Traumatic Perforation of Duodenum and Colon, (c) Operaton Procedure for Exploration of Bile Duct.

Other findings of fact have not been set out in this Summary as not being relevant to the Applications save that:

1. Perforation of the duodenum is a rare but recognised complication of this procedure. In itself the mortality rate is extremely low (about 1%). This patient's particular adhesion problem, which also led to perforation of his colon, was extremely rare though recognised in the medical textbooks, it could not have been established prior to ERCP, nor anticipated in the early post-operative care.

2. Surgical intervention between 2200 hrs – 0800 hours would not have been clinically appropriate, but if so required, an emergency procedure could have been undertaken at the L&D within this period notwithstanding the Department of Health Clinical Guidelines to which I was referred.

3. The Post Mortem evidence revealed an enlarged heart, a 50% narrowing by atheroma of the left coronary artery and generally complicated dynamics. Life expectancy was therefore compromised and thus endorsing the clinical judgments made …."

25. The coroner's reasons for his refusal of the specific applications, omitting less material passage, read as follows:

"1. Article 2:

… I cannot believe that … every hospital death, let alone one such as in this case, is capable of invoking Article 2. There are certain failings in current Coronial Law, but for the most part there are now adequate opportunities for the Coroner to investigate any medical malfeasance or procedure of public concern without relying on Article 2. In this case I am firstly not convinced that the Luton & Dunstable NHS Hospital Trust is a State Body or an Agent of it …. [I]f it were to be held that the L&D fell within the provisions of Article 2, I do not see that it has any meaningful implications for this case beyond the enquiries I have already conducted, which are proportional to the circumstances ….

Mr Coleman was aged 83. He had gallstones. As a result he was jaundiced and his health was deteriorating, potentially shortening his life expectancy further without some attempt at alleviation. He opted for a surgical procedure which, as with virtually all other surgical procedures, has inherent risks, however small, even for a younger, fitter, person. The procedure appeared to be successful in its own terms. Sadly he subsequently deteriorated and died the following day. His duodenum and colon, which were unusually fused, were unfortunately perforated. This rare condition resulted in peritonitis which was diagnosed by competent and experienced clinicians and, for understandable clinical reasons, Mr Coleman was treated conservatively and his condition monitored. He died before he was considered fit for a further life-threatening operation. Clinical judgments were exercised at each stage. [The claimant's solicitor] demanded that a detailed inquiry into hospital procedures and protocols should be undertaken. He potentially objected to Department of Health Guidelines advising against surgical operations during the night, except where life-saving. This is not a case where Government Policy should be put to enquiry and in any event I am satisfied that life-saving operations have and can be undertaken at this Hospital should an emergency situation arise. If I had thought for one minute that I ought to undertake a 'Systems Review' to minimise the risk of future deaths to assuage the anxieties of the public, I would have undertaken such a Review within existing Coronial powers irrespective of Article 2. I believe that the Inquest, now concluded, properly and effectively investigated the circumstances of Mr Coleman's death and would not be found wanting by any extended or further review. Other family concerns could and should be independently investigated by the Hospital itself. The Application was therefore refused.

2. To obtain evidence from an Independent Consultant to assess the treatment.

Whenever a sudden or unexplained death is reported to me I ensure that full and sufficient enquiries are made on my behalf and that independent, professional or expert advice or opinion is obtained when appropriate. This is not a case where the clinical judgment of any person individually or collectively should be subjected to independent scrutiny. I am well aware that my Independent Pathologist should not be relied on to give expert evidence beyond his remit. However, in this case, the statistical evidence coupled with the clinical judgment of more than one Specialist, the facts of the case, the medical text-books and common sense, do not in any way lead towards negligence, let alone gross negligence or incompetence and the public interest has been fully satisfied from the evidence of the witnesses called or whose statements were presented.

Although in the interests of transparency I have authorised advance disclosure of all available evidence, the family have not themselves taken the opportunity of undertaking an independent scrutiny or invited me to hear or read other medical evidence beyond the Department of Health Guidelines.

From my many years of experience in investigating hospital deaths, which has afforded me some judicial knowledge, I cannot envisage that any 'Independent Consultant' apprised of the facts of this case could conceivably come to a clinical judgment so widely different from those already before me as to lead to a verdict other than 'misadventure' or 'accidental death' without any of the qualifications or riders that would be open to me if it were otherwise.

There is no case for an Independent Report and this Application is rejected."

26. Subsequent to the coroner's decision, the claimant obtained reports from two independent medical experts concerning the standard of care received by Mr Coleman at the hospital on 25-26 February 2003. At the hearing before me Mr Powers QC, in the face of objections set out in the skeleton arguments for the coroner and NHS Trust, conceded that that evidence was not admissible in support of the present challenge and he did not seek to place it before me. The evidence has been deployed in support of a request to the Attorney General for his authority to apply to the court for a new inquest to be ordered pursuant to s.13(1)(b) of the Coroners Act 1988. A decision on that request has been deferred by the Attorney General pending the outcome of the present proceedings.

The claimant's case

27. The case for the claimant stems from the circumstances of Mr Coleman's death. By section 8(1) of the Coroners Act 1988 an inquest must be held where there is reasonable cause to suspect that deceased person "(a) has died a violent or an unnatural death; (b) has died a sudden death of which the cause is unknown; or (c) has died in prison or in such a place or in such circumstances as to require an inquest under any other Act". In this case there was reasonable cause to suspect that Mr Coleman had died an "unnatural death", so that the duty to hold an inquest was triggered. The evidence was that he died solely from the injury received during the ERCP procedure. The pathologist was not qualified to determine whether the perforations were caused by gross negligence, by lack of care, or by accident or misadventure notwithstanding the exercise of proper care; nor was he qualified to express an opinion on the subsequent clinical treatment. Those matters required evidence from a suitably qualified expert. But the only expert evidence called was that of the very doctors who had operated on Mr Coleman and had been responsible for the management of his condition thereafter: Miss Cheslyn-Curtis, who had carried out the ERCP procedure and caused the perforations, and Dr Gupta. Those doctors were needed to give factual evidence, but they could not be expected to give an objective account of the circumstances or to provide the coroner with the necessary expertise whereby their actions could be critically analysed. Specific comment is made about the fact that Miss Cheslyn-Curtis's statement that "the duodenal wall appeared almost translucent and was thought to be very thin making the risk of perforation higher" first appears not in her contemporaneous record but in her report a month later. Nothing was said at the time to suggest that the staff ought to be on a higher state of alert as to the risk of perforation whether for that specific reason or indeed because of Mr Coleman's age. Criticism is made of the failure to respond more speedily to the decline in Mr Coleman's post-operative condition. Although Miss Cheslyn-Curtis attributed his deterioration to "his age and general frailty", it is said that any objective opinion would have demanded an examination of compliance with post-operative protocols and a careful explanation of the care he actually received following the ERCP procedure (e.g. what procedures were in place to monitor and look for signs of perforation, when the signs should have been picked up, what "expectant" treatment meant and whether it was done satisfactorily, and when the further operation should have taken place).
28. Against that background, the case for judicial review is advanced on two bases:

i) In the circumstances of the death, and since it occurred while Mr Coleman was a patient in an NHS hospital (a public authority within the meaning of s.6 of the Human Rights Act 1998), the acts and omissions of its medical staff are capable of engaging the responsibility of the state under article 2 ECHR. The inquest had to meet the criteria laid down for an investigation under article 2, which in this case required the coroner to seek the assistance of an independent witness with expertise in endoscopic procedures and in the management of bowel operations.

ii) Even if article 2 was not engaged, the coroner was required to summon the assistance of an independent medical expert rather than placing reliance solely on the evidence of the clinicians who had been directly responsible for the death.

29. In relation to each basis it is submitted that the coroner, who is not medically qualified, was wrong to refuse to seek independent medical evidence in reliance solely upon his own uninformed view that there was no ground for considering that the medical personnel involved might have been negligent and that he trusted them to give an objective opinion on their area of expertise as to the adequacy of their own treatment which led to Mr Coleman's death. In his written reasons he acknowledged that he could not rely on the pathologist, Dr Calder, to give evidence "beyond his remit" (though in his witness statement he refers, inconsistently, to Dr Calder as "very experienced in carrying out autopsies in relation to hospital deaths and recognising signs of negligence). He was otherwise relying on the evidence of the very witnesses whose conduct was in question. He denied himself the independent evidence which could have enabled him to decide whether or not there was any sign of clinical negligence.
30. In relation to article 2, Mr Powers relies on the statement of principles in Jordan v. United Kingdom (2001) 37 EHRR at paras 105-107, albeit that the context was very different (namely the shooting of a civilian by a police officer in the course of an anti-terrorist operation in Northern Ireland):

"105. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force …. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ….

106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent of those implicated in the events …. This means not only a lack of hierarchical or institutional connection but also a practical independence ….

107. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances … and to the identification and punishment of those responsible …. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record injury and an objective analysis of clinical findings, including the cause of death …. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."

31. Paragraphs 108-109 of Jordan lay down additional requirements as to promptness, public scrutiny and involvement of the next-of-kin in the procedure.
32. Mr Powers also refers to what was said in R (Middleton) v. West Somerset Coroner [2004] 2 AC 182, [2004] UKHL 10, about the conduct of an inquest where a case comes within the scope of the investigative obligation under article 2. Lord Bingham, giving the considered opinion of the Judicial Committee of the House of Lords, observed that in England and Wales an inquest is the means by which the state ordinarily discharges its procedural obligation to investigate under article 2 and that, in order to meet the procedural requirement, an inquest ought ordinarily to culminate in an expression, however brief, of the conclusion reached on the disputed factual issues at the heart of the case (para 20). In some cases the current regime governing the conduct of inquests, in accordance with the approach in R v. Coroner for North Humberside and Scunthorpe, ex p. Jamieson [1995] QB 1, enabled that to be done (paras 29-31). In other cases the current regime would not meet the requirements of the Convention; but compatibility could be achieved by interpreting s.11(5)(b)(ii) of the Coroners Act 1988 and rule 36(1)(b) of the Coroners Rules 1984 as empowering an inquest to determine "by what means and in what circumstances" the deceased came by his death (paras 32-37).
33. Having regard to the nature of the investigative obligation of the state under article 2 and to the role of an inquest in discharging that obligation, Mr Powers advances the following propositions:

i) The Luton and Dunstable Hospital NHS Trust is a public authority within s.6 of the Human Rights Act 1998. This is now accepted on the coroner's behalf, although he expressed a different view in his written reasons.

ii) All deaths in hospital potentially require an article 2 investigation. At a minimum there is a requirement for such an investigation where the state potentially bears responsibility for the death: Sieminska v. Poland (application no. 37602/97, 29 March 2001).

iii) In any event deaths in hospital which fall into the coroner's jurisdiction (amounting to only 5% or so of all deaths in hospital) require an article 2 investigation. This introduces a practical threshold for such an investigation.

iv) The obligation to investigate is upon the state and not upon the relatives: Jordan, para 105; R (Amin) v. Secretary of State for the Home Department [2004] 1 AC 653, [2003] UKHL 51, para 20.

v) Ordinarily an article 2 investigation into a hospital death should fall to the coroner: Middleton, para 47 ("In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2"). The relevant local authorities will have to indemnify the coroner for any increased costs which are incurred.

vi) Whilst the scope and extent of the investigation may vary according to the circumstances, minimal criteria apply to any article 2 investigation: Amin, para 50 per Lord Steyn. In particular, the minimal Jordan criteria apply (see paras 105-107 of Jordan).

vii) Where there is an article 2 investigation into a death in hospital, the minimal criteria for such an investigation will not be met without appropriate evidence being called. In practice in most cases where surgical procedures and clinical management are involved, the investigation would involve the assistance of an independent clinical medical expert. Without independent expertise in the relevant area, there can be no realistic prospect of any inquiry being fair and balanced. In another context, the difficulty of using witnesses of fact as expert witnesses has been recognised in a multi-agency protocol published in September 2004 by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, relating to care and investigation in cases of sudden unexpected death in infancy. The evidence of Miss Cheslyn-Curtis and Dr Gupta was not independent. As to the need for independent investigation, see Gulec v. Turkey (application no. 54/1997/838/1044, 27 July 1998) at para 85; Kilic v. Turkey (application no. 22492/93, 28 March 2000) at para 72; R (Wright and Bennett) v. Secretary of State for the Home Department [2001] EWHC Admin 520 at para 60; R (Nicholls) v. HM Coroner for Liverpool [2001] EWHC Admin 922 at para 29; R (Stanley) v. Inner North London Coroner [2003] EWHC 1180 (Admin) paras 45-47. Further, the Report of a Fundamental Review 2003 into Death Certification and Investigation in England Wales and Northern Ireland, Cm 5831, recommended the establishment of a statutory medical assessor independent of any health service provider or professional grouping. See also the recommendations of Dame Janet Smith, in her report on the Shipman Enquiry, as to the establishment of a new system whereby coronial functions requiring the exercise of medical judgments are carried out by independent medical coroners.

viii) An article 2 investigation into a hospital death gives the coroner greater scope than he would otherwise have to investigate through evidence systemic failures and the general circumstances in which the death occurred: see Middleton and R v. HM Coroner for West Yorkshire, ex p. Sacker [2004] 1 WLR 796, [2004] UKHL 11, at paras 27-28. By contrast, if an inquest falls outside article 2, it is constrained by the principles laid down in Jamieson and there is no power to undertake a systems review: R v. HM Coroner for East Berkshire, ex p. Buckley (1992) 157 JP 425.

34. In addition, Mr Powers makes detailed criticisms of the reasons given by the coroner for refusing the claimant's applications.
35. Mr Powers submits that the inquest verdict should be quashed and that the court should order a fresh inquest before a different coroner. He contends that the court is not in a position to judge whether or not evidence from an independent expert and/or the wider powers of inquiry conferred by an article 2 investigation would result in a different verdict. Even were the verdict to be the same, exploration of the circumstances is of greater importance than the verdict in making findings from which lessons can be learned to reduce the risk of recurrence.

The submissions for the Coroner

36. Mr Burnett QC emphasised that the coroner was represented before this court for the purpose of providing assistance to the court rather than to defend the particular decision. The court should be aware of the implications of the position for which the claimant is contending. At present, independent experts are retained in a very small proportion of inquests into deaths in hospital (some 5-6% of the total in the coroner's own experience, though practice varies across the country). The Report of the Fundamental Review in June 2003 estimated the total cost of the whole coroner service at about £71.4 million per annum. If independent experts had to be retained in all inquests involving hospital deaths, that cost would rise very substantially. Decisions have yet to be taken on the Report of the Fundamental Review and, as was recognised in Middleton (para 34), those decisions will take into account the relevant policy, administrative and financial considerations; and, pending those decisions, the existing scheme must be respected save to the extent that a change is required in order to achieve compatibility with the Convention. The court should not be seduced into achieving by judicial activism a change that is properly a matter for legislation. Moreover, if the claimant's arguments in relation to deaths in hospital were accepted, the same might apply e.g. to deaths in care homes and to other areas of state regulation.
37. Mr Burnett submits that the claimant's case that an independent expert must be retained whenever an inquest follows a death in hospital cannot be right. There are many cases where it will be sufficient to rely on those who were involved in the events that led to death. It should be borne in mind that some coroners themselves have medical qualifications and that coroners, whether medically qualified or not, can test the evidence e.g. by reference to the hospital notes. In the present case the doctors were also cross-examined by the claimant's solicitor, who has 20 years' experience in the conduct of clinical negligence claims and in relation to inquests. That should dispel any notion that the doctors were not required to explain what happened.
38. As to whether the case falls within article 2 at all, Mr Burnett submits that the positive and procedural obligations under article 2 were the subject of exhaustive examination by the House of Lords in Amin and Middleton. The statement in para 3 of the judgment in Middleton, based on a distillation of principles from the Strasbourg cases including Powell (application no. 45305/99, 4 May 2000) and Sieminska, could not be clearer: there is an obligation to carry out an effective investigation "into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated". The language of the Strasbourg cases is sometimes confusing, to some extent eliding the positive and procedural obligations (see also Calvelli v. Italy, application no. 32967/96, 17 June 2002), but the House of Lords has thereby established for the purposes of domestic law the circumstances in which the procedural obligation arises.
39. The content of an article 2 investigation pursuant to that procedural obligation was distilled by Lord Bingham in Amin at para 25, citing with approval the judgment of Jackson J in R (Wright) v. Secretary of State for the Home Department [2001] UKHRR 1399, [2002] EWHC Admin 520:

"In a succinct and accurate judgment Jackson J reviewed the domestic and Strasbourg case law, deriving from Jordan v. United Kingdom 37 EHRR 52 the requirement that an investigation, to satisfy article 2, must have certain features …. (1) The investigation must be independent. (2) The investigation must be effective. (3) The investigation must be reasonably prompt. (4) There must be a sufficient element of public scrutiny. (5) The next-of-kin must be involved to an appropriate extent. From the recent case law Jackson J derived five propositions of which the fourth was: 'Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v. United Kingdom, at paras 106-109.'"

40. Both Jackson J in Wright (para 43) and the Court of Appeal in R (Khan) v. Secretary of State for Health [2004] 1 WLR 971, [2003] EWCA Civ 1129 (para 62) recognised that the manner in which the investigation should take place depends upon the context of the death in question; see also Amin in the House of Lords at paras 28 and 42.
41. An inquest carried out by a coroner is plainly an independent investigation. Whether it is an effective investigation is always a fact-sensitive question. A wide range of deaths in hospital may be treated as "unnatural" within s.8(1)(a) of the Coroners Act 1988 and there need be no suggestion of culpability on the part of the medical profession. It cannot always be necessary to have an independent expert. The claimant's case is put far too wide. Nicholls and Stanley were factually very different and what was said in them about expert evidence cannot be read across to the present context. Ex p. Buckley is not material: it was concerned with the limitations inherent in a "lack of care" or "neglect" verdict in accordance with Jamieson principles. In Middleton and Sacker there was no criticism about the scope of an inquest for the purposes of compliance with article 2. The concern related to constraints on the expression of conclusions, i.e. the product or outcome of the inquest, and that concern was resolved by an appropriate interpretation of the Act and Rules.
42. In the present case the coroner has made it clear that he would have retained an independent medical expert if he felt that he needed one. So the real issue is not the scope of an inquest under article 2 but the particular outcome in this case.
43. In keeping with the coroner's general stance before the court, Mr Burnett did not address detailed submissions in defence of the particular decision. He pointed out, however, that the coroner took the view, for the reasons given by him in writing, that there was no reason to believe that there was or might have been negligence. Mr Burnett submitted that whether the coroner was entitled to reach that view on the particular facts was to be determined on Wednesbury principles. The mere fact that the possibility of negligence had been raised by the family was not enough to require the coroner to retain an independent medical expert. It was a matter for his judgment.

The submissions for the NHS Trust

44. For the Luton and Dunstable Hospital NHS Trust, Mr Havers QC likewise expressed concern about the ramifications of the claimant's arguments for other cases.
45. On the question whether article 2 is engaged he adopted Mr Burnett's submissions and cited, in particular, the Strasbourg cases of Powell, Sieminska and Calvelli; paras 2-3 of the judgment of the House of Lords in Middleton; and paras 62-63 of the judgment of the Court of Appeal in Khan. He submitted that there was no question of breach of the positive obligations of the state in this case, since (i) mere medical negligence does not amount to such a breach (Powell) and (ii) the judicial system permits of criminal and civil remedies (Sieminska). There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing or failure to protect someone in custody.
46. As to the question whether there was an obligation in any event to seek an independent medical review, Mr Havers points out that the coroner obtained statements, then called witnesses who were cross-examined by the claimant's solicitor; the hospital notes were before him, as were the post mortem report, the letter from the GP and the report of the surgeon. Having heard all the evidence he was in a better position than the court to take an informed decision as to whether independent expert evidence was required. The relevant test at this stage is Wednesbury reasonableness, and it cannot be said that the decision taken was irrational. The claimant could have commissioned a medical report and invited the coroner to call the author of that report, but nothing additional was put before the coroner.

Whether the investigative obligation under article 2 is engaged

47. The first issue for decision is whether the case engages the investigative obligation under article 2 at all. For reasons considered later, I take the view that the answer to that question does not affect the outcome of this particular case. But it is a matter of some potential importance, as indicated by the submissions that have been made and the fact that the coroner has seen fit to be represented in order to assist the court.
48. As I have said, no attempt has been made to support the coroner's actual reason for considering that article 2 did not apply, namely that the hospital was not a state body or agent of the state. For the purposes of article 2 Mr Coleman, as a patient in an NHS hospital, was plainly in the care of the state. It is therefore necessary to look deeper into the requirements of article 2.
49. Most of the domestic cases relating to article 2 have concerned violent deaths or deaths in custody. For example, the decisions of the House of Lords in Amin, Middleton and Sacker all related to deaths in custody. The application of article 2 to deaths in hospital has not been subject to the same degree of examination.
50. Nevertheless it seems to me that the starting-point for consideration of the investigative obligation under article 2 should be the statements of principle in the recent decisions of the House of Lords, where the relevant Strasbourg authorities have been examined and distilled. In particular, in Middleton Lord Bingham formulated the matter as follows (see [2004] 2 AC at 191, paras 2-3):

"2. The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life ….

3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated …."

51. On that formulation the substantive or positive obligations are (1) not to take life without justification and (2) to establish a framework of laws etc. which will, to the greatest extent reasonably practicable, protect life; and the separate, procedural obligation to investigate arises where it appears that one of those positive obligations has been or may have been violated and that agents of the state are or may be implicated. Thus the existence of the procedural obligation is linked with a breach or possible breach of one of the positive obligations. If taken at face value, that appears to limit very substantially the circumstances in which the investigative obligation will arise. In the case of deaths in hospital, a breach or possible breach of one of the positive obligations is likely to exist in only a small minority of cases.
52. The cases referred to by Lord Bingham in support of the principles formulated in paragraphs 2 and 3 of Middleton include three of the Strasbourg cases concerning medical negligence, namely Powell, Sieminska and Calvelli. Two of those cases, in turn, cite Erikson v. Italy (application no. 37900/97, 26 October 1999), to which I think it helpful to refer first.
53. Erikson concerned the death of the applicant's mother as a result of alleged negligence, in particular relating to X-ray examinations. A criminal complaint by the applicant had been considered but no proceedings had been brought. The application to the Strasbourg court was made on the basis that the failure of the authorities to exercise their best efforts to identify those responsible for the death was in breach of article 2. The court dismissed the application as inadmissible, holding:

"The Court points out that the first sentence of Article 2 obliges the State not only to refrain from 'intentionally' causing death, but also to take adequate measures to protect life. The Court considers that Article 2 of the Convention imposes that, even in cases like the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims ….

In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients' lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned ….

With reference to the first limb of these obligations, the Court observes that the hospital does not appear to have had any particular reaction to the death of the applicant's mother ….

The Court observes however that, after the applicant had filed the complaint against the practitioners whom he deemed responsible for his mother's death, the judicial authorities carried out a thorough investigation into the events ….

The Court further observes and stresses that it was open to the applicant to bring an action for negligence against the hospital. The Court underlines in this respect that the criminal investigations had only aimed at establishing the identity of the practitioners concerned, and not also at assessing whether there had been any negligence in treating the applicant's mother: this question therefore remained open. In civil proceedings, the application would have enjoyed the possibility of seeking and adducing further evidence and his scope of action would not have been limited as in criminal proceedings.

In the light of the above, the Court finds no indication that the facts of this case have not been sufficiently investigated or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable …."

54. In Powell a young boy had died of Addison's disease which had been suspected but for which he had not received appropriate treatment because the relevant tests had not been carried out. An inquest was refused. There were allegations that medical records had been falsified after the death. Various avenues of complaint were pursued. In a civil action the health authority admitted liability for negligence on the basis of the failure to diagnose and treat Addison's disease, but the allegations relating to post-death misconduct were struck out. The parents complained to the Strasbourg court that inter alia the falsification of records was in breach of article 2 and they had been provided with no remedy for that breach. The court held that the application was inadmissible because the parents, having settled civil proceedings against the health authority, were not "victims". But the court's observations on the obligations under article 2 (at pages 17-18 of the judgment) are of importance:

"The Court observes that the applicants do not in any manner allege or imply that their son was intentionally killed by the doctors responsible for his care and treatment at the material time. They aver, on the other hand, that the responsible doctors knew or can be considered in the circumstances to have known that their son's life was at immediate risk but failed dismally to take the necessary measures to treat him. In the Court's opinion, the reasoning employed by the applicants in support of their argument that the doctors' inadequate response to their son's condition at the time amounted to a breach of the State's duty to protect the right to life cannot be sustained ….

Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …. The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.

In the Court's opinion, the events leading to the tragic death of the applicants' son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny – not least for the benefit of the applicants.

The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention. It recalls that the obligation to protect life under Article 2, read in conjunction with the State's general duty under Article 1 to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State ….

The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as result of an act of violence. In its opinion, and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health care professionals and any liability on the part of the latter.

The Court stresses that its examination of the applicants' complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame …"

55. The court went on to examine the various forms of investigation that had taken place, looking first at proceedings before the Medical Services Committee of the relevant health authority and an appeal to the Welsh Office which was abandoned. The judgment continued:

"Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court's opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctors' responsibility for their son's death ….

Having regard to the above considerations the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son's death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death."

56. In Sieminska the complaint invoking article 2 was that the applicant's husband had died as a result of negligence by the staff of an ambulance station in failing to despatch an ambulance with special resuscitation equipment. The court again declared the application inadmissible. It repeated, but also built on, what had been said in Erikson about the need for effective investigation:

"… The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims ….

In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients' lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims …."

57. The Court then considered the criminal investigation, which found that no criminal offence had been committed. It went on:

"The Court further observes that it was open to the applicant to bring a civil action in tort against the State Treasury, seeking compensation for her husband's death. She could also have instituted proceedings in order to establish disciplinary responsibility of the medical practitioners concerned ….

In the light of the above, the Court finds no indication that there has been any failure to provide a mechanism whereby criminal, disciplinary or civil responsibility of persons who may be held answerable could be established.

The Court further finds no indication that the prosecuting authorities arbitrarily assessed the evidence at their disposal ….

Given that no fresh evidence has been brought before the Court, it must rely on the facts established at the domestic level. In the circumstances of the present case, it cannot find any appearance of negligence on the part of the staff involved. Accordingly, there is no appearance of a violation of Article 2 of the Convention."

58. The applicants in Calvelli complained of a violation of article 2 on the ground that, owing to procedural delays, a time-bar had arisen making it impossible to prosecute the doctor responsible for the delivery of their child, who had died shortly after birth. The court found that there had been no violation of article 2. Having referred to the obligation under article 2 not only to refrain from the intentional taking of life but also to take appropriate steps to safeguard life, the court continued:

"49. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable (see, among authorities, Erikson v. Italy … and Powell v. United Kingdom …).

50. The Court therefore considers that Article 2 is applicable. It must now determine what judicial response was required in the specific circumstances of the present case.

51. … However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal- law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.

…

54. In the instant case, the Court notes that the criminal proceedings instituted against the doctor concerned became time-barred …. However, the applicants were also entitled to issue proceedings in the civil courts and that is what they did …. It is true that no finding of liability was ever made against the doctor by a civil court. However, the case file shows that in the civil proceedings … the applicants entered into a settlement agreement with the doctor's and the clinic's insurers and voluntarily waived their right to pursue those proceedings ….

55. The Court accordingly considers that the applicants denied themselves access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor's responsibility for the death of their child. In that connection, the Court reiterates, mutatis mutandis, that 'where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim' (see Powell …)."

59. I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows:

i) Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life. This is stated clearly in Powell.

ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.

iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases the availability of a civil action in negligence and/or the applicant's settlement of such an action is central to the court's conclusion that there has been a sufficient investigation of the death: i.e. it is the existence of an effective judicial system that seems to be decisive. Secondly, Calvelli is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.

iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.

v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state's positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state's positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.

vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state's positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in oral argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state's positive obligations under article 2.

60. The conclusions I have drawn from the Strasbourg cases on medical negligence appears to me to be consonant with the statement of relevant principles in Middleton.
61. In reaching those conclusions I have also taken into account what was said by the Court of Appeal in Khan (which was cited in argument in Middleton but did not feature in the judgment of the House of Lords). The judgment of the court in Khan gave extensive consideration to Powell, Sieminska and Calvelli among other Strasbourg cases, concluding (at paras 62-63):

"62. It is possible to derive from these Strasbourg cases the following principles. (1) Where agents of a state bear potential responsibility for the loss of human life, the state should provide a procedural mechanism whereby the cause of death may be investigated, and responsibility for the death ascertained, through an investigation held in public which must be both judicial and effective. (2) The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests.

63. For reasons that may appear obvious, the present case cannot be simply categorised as one involving errors of judgment on the part of a health professional or negligent co-ordination among health professionals: see the passage in Powell … cited in para 51 above. This is a case in which the conduct of those responsible for [the deceased's] care has already been stigmatised by an independent expert as 'grossly negligent', and where the family's solicitor is not unreasonably concerned that there may have been a medically orchestrated cover-up which caused his clients the additional heart-breaking distress to which we have referred in para 10 of this judgment."

62. The allegation in Khan was much more serious than one of simple negligence. It was described later in the judgment as one of "gross negligence" which fell in the middle of the spectrum that extends from allegations of deliberate killing by a servant of a state to allegations of plain negligence by such servants (para 67). I also bear in mind that what the court went on to say about the investigative obligation under article 2 was based heavily on the judgment of the Court of Appeal in Amin, which laid down a more flexible approach to the application of article 2 than found favour on appeal to the House of Lords. Looking at Khan as a whole, I do not think that it requires me to adopt any different approach from that which I have indicated above as to the circumstances in which the separate procedural obligation to investigate arises under article 2.
63. Applying the approach I have indicated to the facts of the present case, I conclude that the investigative obligation under article 2 was not engaged. On the material before the coroner and before this court, there was no question of any actual or possible breach of the state's positive obligations under article 2. There was at most a possibility of simple negligence, which even if established would not amount to a breach of article 2.
64. Accordingly the coroner was in my judgment correct to refuse the application that the inquest be conducted as an investigation for the purposes of article 2, even though the particular reason he gave (that the hospital was not a state body or agent of the state) was not a good one.

Whether the inquest complied with any investigative obligation under article 2

65. In case I am found to be wrong on the first point, I need to go on to consider whether, if the investigative obligation under article 2 was engaged, the inquest as conducted complied with it. It is evident from the coroner's reasoning that in his view the application of article 2 would have made no difference to his conduct of the inquest.
66. Again I take as my starting point the recent statement of principles by the House of Lords. On this issue Amin is of particular importance. Like Middleton, it related to a death in custody; but in rejecting the Court of Appeal's conclusion that there had been sufficient investigation to satisfy the requirements of article 2, the House of Lords held that any article 2 investigation has to meet certain minimum standards. Lord Bingham stated (at para 32):

"[Counsel for the Secretary of State] was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But [counsel for the claimant] was right to insist that the Court, particularly in Jordan … and Edwards …, has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards."

67. Lord Slynn expressed a similar opinion at paras 42-43, as did Lord Steyn at para 50, where he stated:

"The Court of Appeal plainly thought that in the case of acts by state agents causing death in custody there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. That cases in the former category may be a greater affront to the public conscience than cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan … to acts by state agents. The distinction drawn by the Court of Appeal infected its analysis of the Strasbourg decisions. Relying on this distinction the Court of Appeal in effect departed from the requirements as explained in Edwards. Given the crucial importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence …."

68. It still does not follow, however, that a death in hospital, even one allegedly resulting from negligence by the medical professionals concerned, requires an inquiry of the same kind or intensity as that required in relation to deaths in custody. The minimum criteria or standards may be the same, but there is room for some flexibility in their application. There is, for example, a marked contrast between what has satisfied the Strasbourg court in practice in the cases of alleged medical negligence (irrespective of how precisely they are analysed under article 2) and what has been held to be required in cases of intentional killing or deaths in custody such as Jordan and Edwards.
69. In the present case the argument before me has centred on two of the criteria referred to in Jordan, namely independence and effectiveness.
70. As to the first, I am satisfied that the inquest was independent. There is no issue over the independence of the coroner himself. In that respect the position is very different from cases such as Gulec v. Turkey and Kilic v. Turkey, where the investigating authorities themselves were held not to be independent. In so far as it was submitted on the claimant's behalf that the inquest could not be independent without obtaining independent expert evidence concerning the standard of care exercised by the relevant medical professionals, I reject the submission. In my view the issue of independent expert evidence goes to the effectiveness of the investigation rather than to the independence of that investigation.
71. As to effectiveness, the lack of independent expert evidence or review was certainly one of the reasons why the inquest in Wright, a case of death in custody, was held not to have been an effective investigation. The same is true of Nicholls, another case of death in custody, though it had the particular feature that the deceased's family had instructed a medical expert whose report contained adverse comment on the standard of care received by the deceased but whom the coroner refused without good reason to call as a witness. So too in Stanley, a case concerning the use of fatal force by police officers, the coroner's failure to call relevant experts who were present at the inquiry, including one funded by the family of the deceased, was held to be one of the reasons why the inquest was flawed. But each of those cases was decided on its own particular facts. None of them purported to lay down any principle that independent expert evidence is always required in order to render an inquest an effective investigation for the purposes of article 2. And in my view there can be no such principle. Everything must depend on the particular circumstances, including the expertise of the coroner himself and the precise nature of the issues and evidence before him.
72. In this case it is relevant that the coroner, though experienced, was not medically qualified. Moreover the pathologist could give him only limited assistance in relation to the care exercised by the surgeon who performed the procedure on Mr Coleman and the care he received thereafter. On the other hand, the coroner did have the hospital notes, the GP's letter, and relevant expert evidence, albeit not independent evidence, from the surgeon herself and from the specialist senior registrar, both of whom were experienced practitioners. That evidence could be probed and was in fact subject to cross-examination by the claimant's solicitor. The coroner also had the benefit of statistical evidence (provided by the surgeon in her comments, but backed up with references to the textbooks) as to the risk of complications and mortality from this elective procedure. Further, in this case there was no expert evidence on behalf of the claimant suggesting any deficiency in the care received by the deceased or in the hospital procedures. Such suggestion as there was of negligence came only through cross-examination or submission by the claimant's solicitor.
73. The coroner himself makes clear in his written reasons that he was satisfied in the circumstances that there was no negligence and that there was no need for a "systems review" of the hospital procedures; but that had he taken a different view he would have obtained independent expert evidence and/or undertaken a systems review. There was no question of his perceiving his powers to be limited in any material respect if the matter proceeded as an ordinary inquest without also constituting an article 2 investigation. The matter therefore comes down to whether the coroner's judgment that fuller investigation was not required in the circumstances was a lawful judgment. In the context of the sufficiency of an investigation under article 2 it seems to me that the court, rather than simply asking whether the coroner's judgment was reasonably open to him in the Wednesbury sense, must form its own judgment on whether more was required, in particular by way of independent expert evidence. In forming such a judgment, however, the court must take account of its own lack of medical expertise and must pay an appropriate degree of deference to the judgment of the coroner, who is more experienced in these matters and was closer to the actual evidence in the case.
74. Applying that approach, and taking due account of the criticisms made by Mr Powers of the evidence that was before the coroner, I am not persuaded that the coroner was wrong to view the matter as he did. It may be that the additional evidence now obtained by the claimant would cast a different light on the matter. But, as I have said, Mr Powers did not seek to place that evidence before me. I must approach the matter on the basis of the same material as was before the coroner. On that basis I would hold that the coroner's conduct of the inquest was lawful even if the inquest did constitute an investigation under article 2. It was not only an independent investigation but also, on the particular facts, an effective investigation notwithstanding the lack of independent expert evidence on the standard of care received by Mr Coleman. I did not understand Mr Powers to submit that it was incompatible with article 2 in any other respect, and on the face of it I see no reason to hold that it was.
75. I would add that any issue of negligence can be pursued by the deceased's family in a civil claim; and although in other contexts that would not assist in establishing compliance with the investigative obligation under article 2, in the context of medical negligence the Strasbourg authorities, as I have said, show that it is not only a relevant factor but an important factor in establishing compliance with article 2.
76. Accordingly I would have dismissed the claim under article 2 even if I had concluded that the procedural obligation to investigate was engaged on the facts and that the inquest should be treated as a means by which that obligation was to be discharged.
77. I should refer finally to the considerations of cost and policy to which Mr Burnett drew my attention. Those considerations make it important for the court not to impose on the coronial system any greater burdens than are required in order to secure compliance with article 2. But I should make clear that my conclusion that nothing further was required in this case in order to comply with article 2 has not been influenced by the financial consequences of requiring more to be done. Whether changes to the existing coronial system are desirable for wider reasons of policy is an area into which it is inappropriate for me to stray.

Whether the coroner's decision was otherwise lawful

78. I can deal with the last issue very shortly. Leaving aside article 2 and looking at the lawfulness of the inquest on the basis of the approach laid down in Jamieson, I regard the claim as clearly unsustainable. In this context the coroner's judgment that fuller investigation was not required has to be assessed on Wednesbury principles. The coroner's judgment was in my view perfectly reasonable on the material before him. What I have said above in relation to article 2 applies here a fortiori.

Conclusion

79. For the reasons I have given, I find that the inquest held into the death of Mr Coleman was lawful and that the claim must be dismissed. That conclusion is without prejudice to the question whether the fresh evidence, which I have not seen, justifies an application to the court under s.13 of the Coroners Act 1988 and the ordering of a new inquest. Those matters are for separate consideration by the Attorney General and, if it arises, the court.