England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 23rd September 2008

1. MR JUSTICE BLAKE: This is a renewed application for permission to bring judicial review proceedings in respect of an inquest conducted in 2007 by the defendant Coroner for Inner North London into the death of the claimant's wife.
2. The circumstances of that death were as follows. In July 2006 the deceased was detained by the Camden and Islington Social Care Trust under section 3 of the Mental Health Act because of a pre-existing schizophrenic disorder and it was concerns about her behaviour and delusions that resulted in her recall. In August 2006, a clinical decision was made to prescribe and administer medication and in September she was referred by the senior house officer of the surgical outpatients department, having been treated for a presumptive diagnosis of pneumonia with antibiotics. There were other incidents recorded in her history in the mental hospital where she was admitted compulsorily. Those matters were in due course recorded by the coroner in his inquisition into this death.
3. The immediate factors relating to the death, however, were as follows. Shortly after midnight on 2nd October 2006, the deceased was seen by a member of staff. There was food in her mouth and the deceased apparently told a member of staff that she was going to the toilet. When a staff member checked her room at quarter past twelve she found the deceased collapsed in the toilet and, because there had been a quantity of food in her mouth, there was a partial clearing of her airways and she called for assistance. What then happened is that a cardiopulmonary resuscitation was carried out by other members of staff on the one hand and the London Ambulance Service was called on the other. Dealing with the London ambulance service, not only did they have to journey to the hospital from wherever they were based in order to respond to the call, there was also evidence before the coroner at the inquest of an obstacle to their reaching the deceased, namely that the security guard on reception at the mental institution was asleep and that caused a delay of some unascertained matter of minutes before the ambulance service and the paramedics could get access to the deceased patient in her closed ward.
4. Meanwhile, whilst that was going on, the senior house officer, Dr Patel, was called to the incident and he gave, or attempted to give, assistance with cardiac resuscitation with a defibrillator. His evidence, in due course, at the inquest was that he had attempted to clear the airways with a finger sweep. The emergency resuscitation bag was already present and a mask was being used to begin ventilation (obviously that was after assessing her for breathing). When he entered the ward, he saw the deceased on the floor, unresponsive, and she was looking cyanosed. He was not aware of any resuscitation activity being conducted by the nurse. In due course, the paramedic who did give assistance found that she had to clear the airways and there was found food in the throat before that was completed and a subsequent internal inquiry by the health authority found some evidence of concern that staff generally were not familiar with the procedures for operating small oxygen canisters, including whole emergency kits, and some better comprehensive training was required.
5. The family of the deceased were understandably both distressed and concerned as to the circumstances in which she came by her death and invited the coroner in perfectly sensible correspondence prior to the inquest to examine the matters broadly. Their concerns were indeed broad and included the question of whether the deceased should really have been detained in the mental ward at all, given her other state of health. There is, in a letter written on 2nd April 2006, concern that there was systemic failure to protect the deceased's right to life consisting of a lack of risk assessment and risk management and an adequate care plan and a failure to provide appropriate treatment commensurate with the national guidelines. Further, at paragraph 3, the letter states:

"We believe that the night of my mother's death throws up some very serious questions and serious negligence in respect of resuscitation, a lack of ability to use vital equipment and a sleeping security guard who delayed access to my mother for 5-6mins."

6. The coroner was not minded to sit with a jury, concluding that in his judgment the factors under section 8 of the Coroners Act that could make that appropriate did not exist, and he was also not minded to conclude that this was an inquiry which fell within the ambit of Article 2 of the ECHR as incorporated into our law by the Human Rights Act and therefore the ambit of his inquiry would not be governed by those principles. It seems there was an application for interlocutory relief to this court to prevent the coroner proceeding in a way that he was minded to do. That was unsuccessful and, following some further submissions as to how the coroner ought to proceed, and further pre-inquest correspondence, it seemed the family were sufficiently dissatisfied with the way that he was proposing to conduct his inquiry that they left the hearing and did not participate further in it.
7. This matter now proceeds by a renewed application with an unhappy procedural history that caused Underhill J, who happens to have been the judge who refused the application for injunctive relief in July of 2007, to refuse this application on the grounds of inordinate delay as well as the merits. The Health Authority, who are responsible for the mental hospital in which the deceased was held and died before she was transported to the nearby Whittington Hospital, made submissions that this was not an appropriate case for permission, was out of time and showed no real grounds. Realistically, in renewing this application before me, Mr Thomas has helpfully focused upon some factors that were indeed covered by paragraph 3 of the family's pre-inquest letter and submits that, whether or not this was an Article 2 inquiry, the inquiry itself conducted by this coroner was inadequate in that he did not explore contradictions between aspects of the evidence heard on the day and did not invite the expert that he did call to assist him on accident and emergency procedures to examine the full range of the detailed evidence, including some inconsistencies and contradictions in the evidence.
8. Put at its highest, Mr Thomas' submissions can be reduced to something like this, although I appreciate I do not do justice to them in this reduction:

(1) Dr Patel says he saw no nursing staff giving resuscitation assistance when he arrived upon the scene but the expert assumed that such assistance was beginning to be given in her overall assessment as to whether this was a cardiac arrest that might have been survivable by the deceased.

(2) Dr Patel said that he had cleared the airways before providing the tubes into the deceased's throat, whereas the paramedic who arrived later at the scene suggested there was still food in the throat that had to be cleared for a clear airway to be obtained.

(3) There was no investigation into precisely how long the paramedics had been held up because of the actions of the security guard who was asleep.

(4) Given the very narrow window (possibly three to four minutes) in which in this kind of case, where there is some food in the airways as well as a cardiac incident, to try to get breathing and oxygen supply to the brain restored, any one or more of these failures could have been said to have materially contributed to the death.

(5) He also pointed out that the coroner did not explore in the inquest or with the expert the conclusions of the health authority's internal inquiry that some of the staff were unfamiliar with the equipment and that may have caused delay contributing to death.

9. Pulling back from those particular submissions and the general submission based upon those observations that there had been inadequacy of inquiry in exploring those matters, he also points out that the medical history of the deceased, as revealed in her medical notes, might have raised further questions as to whether she was in the right place and whether she was receiving the right treatment and he suggests, because his solicitors were unable to get the medical notes from the coroner, the coroner may not have even obtained those medical notes, although I do note that his own narrative account gives considerable detail of the pre-history and I would have anticipated he would have had some documentary evidence as well as the assistance of the oral evidence that he had on that respect. Mr Thomas submits that that really is the high point of the factual aspect of this challenge and it is reasonably clear that if he had been there on the day, or indeed if the family had continued to participate, it is quite possible that some other lines of clarification and cross-examination could have fruitfully been continued which might have thrown further light upon those matters.
10. However, viewing the matter in the round, I have come to the conclusion that his two other submissions, namely that there was evidence of, or reason to believe that there was, a systematic failure that caused the death in a material way such as to engage the state's obligations with respect to mental patients who are undergoing treatment in a mental institution, is not a good one. The law is by no means crystal clear but those cases in which the courts have been minded to conclude that the Article 2 obligation existed were cases where there really was fundamental failures that caused the condition itself that caused the death. In Touche there was gross incompetence in the administration of anaesthetics to a healthy woman giving birth and in Takoushis there was an inexplicable failure to keep someone who was mentally disturbed and suicidal in the environment in which there might have been at least a possibility of protecting him. Instead he left the hospital and took his own life by jumping off a bridge into the Thames. In both those cases therefore, the concern was into either causing or failure to prevent the very thing which caused the death. In this case undoubtedly what caused the death was the natural condition of a heart attack in this lady, who obviously had her fair share of other health problems of one sort or another. The inquiry into whether the state's obligation through the health authority existed, would have been in respect of whether medical assistance promptly rendered might have prevented the natural cause of death taking effect. I consider that that is a material distinction in the present context when seeking to define the scope of Article 2 and also to some extent the question as to whether there was a systemic problem that should be addressed by a particularly broad ranging inquest or indeed some avoidable procedure or error or harm that would require or make it appropriate for the coroner to sit with a jury. I conclude that, notwithstanding the perfectly understandable concerns of the family in their letters, the facts of the case did not require examination of a broader inquest or an inquest with a jury.
11. That leaves the simple first proposition as to whether there was an adequacy of inquiry on the points made. I have looked with care at the transcripts and there is always a danger of taking particular answers out of context and developing the case simply upon the basis of one answer. It is reasonably plain to me that Dr Patel had arrived on the scene when the nursing staff had done something to give assistance to the deceased and had got out the relevant equipment and so it was not simply a question of ignoring a dying lady who was in urgent need of assistance and there was discussion by the expert of the difficulties of getting a clear airway where one of the problems is, and was known to be, that the deceased had consumed a quantity of food. Indeed, that was the very factor that staff had noticed about her and why they wanted to monitor her because she seemed to be eating a lot of food rather quickly. Quite whether things might have been done better is not the test for whether this court should now entertain this application for judicial review. Certainly it is hardly inspiring to find that the ambulance crew could not get in in the vital minutes that are required in cardiac resuscitation because of the sleeping security guard, although the court understands that came to the attention of the health authority and this individual was dismissed. The court has to focus eventually upon the prospects of the claimant obtaining relief and the relief that the claimant would have to obtain in this case is the setting aside of this inquest on the basis that there was a fundamental failure of inquiry of the sort that would justify reopening the whole inquest de novo. Of course, it is not Mr Thomas' case that it is sufficient to obtain such relief, that one might have better explored with advantage certain questions in cross-examination.
12. I have carefully considered the submissions, cogently made, but I have concluded that this is not a case, despite the force of some of the observations made, in which there are realistic prospects of the claimant setting aside the inquest and the inquisition given in 2007. I appreciate there were reasons why it took some time for this renewed application to come on and with responsible solicitors seeking the medical notes to look overall at the question of the case but I have to say that the collateral inquiries raised from medical notes as to whether there had been pre-treatment, although of course interesting and might well have given rise to further questions, again do not of themselves indicate to me that there was a whole line of inquiry that was ignored and that might have shed fresh light upon the circumstances in which the deceased met her death.
13. For those reasons, I conclude that it is not a case in which I should grant permission and therefore I refuse it.
14. Thank you Mr Thomas.
15. MR THOMAS: My Lord, if I need it, this claim is publicly funded.
16. MR JUSTICE BLAKE: I think you probably need an order for full CLS assessment. Well, you can have that, certainly.
17. MR THOMAS: Thank you, my Lord.