England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester, M60 9DJ
		28/05/2012

His Honour Judge Peter Thornton QC :

Introduction

1. This is the judgment of the Court.
2. The claimant, Dr Kamprath Sreedharan, renews his application for permission to apply for judicial review, permission having been refused on the papers by Sharp J.
3. He seeks permission to challenge the verdict of unlawful killing of a jury by way of Inquisition at an inquest. The verdict was returned on 1 August 2011 following an inquest that lasted 35 days before Her Majesty's Coroner for the City of Manchester, Nigel Meadows.
4. The issue before the court is whether, as Ms Mary O'Rourke QC on behalf of the claimant submits, he has an arguable case for quashing that verdict. Ms O'Rourke did not appear at the inquest.

The circumstances of the death

5. The inquest concerned the death of David Donohue. He was 30 years old at the time of his death on 21 December 2002. The unchallenged cause of death, as stated in the Inquisition, was chlormethiazole and alcohol toxicity.
6. The claimant was Mr Donohue's general practitioner. Two days before his death, on 19 December 2002, he had prescribed Heminevrin (chlormethiazole) for Mr Donohue at the request of his mother. Heminevrin is a sedative drug, sometimes prescribed to treat alcohol withdrawal symptoms. It is capable of becoming addictive and can be lethal in combination with alcohol. Mr Donohue had not been present or questioned or examined at the time of the prescription. The claimant prescribed 60 capsules of 192mg on this occasion. Mr Donohue took some 52 of these tablets on 21 December with a considerable amount of alcohol, a toxic mix which led to his death. When the ambulance staff came to help him at his mother's house, he became aggressive and violent. He had to be restrained by the police. He was taken to hospital where he suffered a cardiac arrest and died.
7. Mr Donohue had a history of drug abuse, alcohol dependency and mental health problems. Dr Sreedharan had been his GP for a number of years and would have been aware of his inpatient psychiatric care following repeated alcohol abuse. The claimant had first prescribed Heminevrin to him in February 1997. The deceased had overdosed on Heminevrin and alcohol before and had been admitted to hospital in 1997. Following that admission the claimant had further prescribed Heminevrin on 2 June 1997.

The inquest proceedings

8. A first inquest in May 2007 was not concluded. The jury was discharged because the coroner considered it appropriate to refer the matter to the Director of Public Prosecutions for consideration of whether the claimant should be prosecuted for manslaughter. It is right to say that no party prior to that time had raised the question of the claimant's potential responsibility for Mr Donohue's death. There was no prosecution, the expert medical advice available to the CPS (from Dr Langford: see below) being that, whilst the claimant's actions may have been negligent, they were not grossly so. A second inquest began on 13 June 2011 which led to the verdict sought to be challenged.
9. Having heard submissions from all counsel, the coroner left the following verdicts for the jury: (1) unlawful killing (in the prescription of Heminevrin), (2) accidental death contributed to by neglect (in the conduct of the ambulance staff), (3) accidental death, and (4) an open verdict. The jury entered a unanimous short form verdict of unlawful killing, with a short narrative finding of key facts.

The claimant's submissions

10. The claimant submits in essence that he has an arguable case for judicial review because the scope of the inquest was widened beyond the limits provided by the Coroners Rules 1984 and in a way that adversely and prejudicially affected him. Ms O'Rourke submits that the coroner, aided and abetted by other interested persons, wrongly turned the inquest into an inquiry into the conduct of the claimant, whereas that conduct was not central to the jury's decision as to 'how' (see section 11(5)(b)(ii) of the Coroners Act 1988) - meaning 'by what means and in what circumstances' (R (Middleton) v West Somerset Coroner [2004] AC 182) - the deceased came by his death.
11. She submits that the coroner introduced evidence before the jury that should not have been introduced. For example, he called evidence of the claimant's history of prescribing to the deceased and of his prescribing of Heminevrin to another patient, referred to at the hearing as 'Patient X'; he called evidence about the claimant's record keeping; and he called evidence about a General Medical Council (GMC) investigation of the claimant and a separate Primary Care Trust (PCT) investigation. All of this, it is argued, was unlawful because it strayed beyond the scope of what was relevant evidence and ran contrary to section 11(6) of the 1988 Act and Rules 36(1), 42 and 43 of the Coroners Rules 1984. It turned the proceedings into 'an improperly conducted inquest', according to Ms O'Rourke's Skeleton Argument. The focus, she argued, was directed excessively and unfairly towards the claimant and away from other persons or organisations who may have been at fault. She emphasised the word "solely" in Rule 36(1) and contended that the matters of which she complained demonstrate a disregard of this word in the context of this inquest.
12. For the purposes of the present application the claimant has sensibly not pursued allegations of bias on the part of the coroner. Certain other submissions previously intimated in written form have also not been pursued. For example, there was evidence available that might have left open the possibility of a verdict of suicide, but the coroner decided not to do so and Ms O'Rourke accepted that it was not unreasonable in the Wednesbury sense for him not to have done so. Her submissions were, therefore, restricted to her 'unlawful scope' argument.

Submissions on behalf of the coroner and the family

13. Mr Jonathan Hough, Counsel for the coroner, and Mr Nick Brown, Counsel for the family, submitted that the coroner had acted lawfully. They contended that in a full, fair and balanced inquiry he had done no more than the law permitted, indeed required. It was submitted that this was a complicated inquest, raising a number of complex issues of fact and law, all of which were investigated with thoroughness and impartiality. They contended that there was no arguable basis for impugning the verdict or the route by which it was reached.

The Court's decision

14. We have considered these submissions with care, in the light of the material put before us, which is considerable. We have also had the benefit of written and oral submissions from all concerned. In the end we are not persuaded that the claimant's case is arguable. These are our reasons.

The Court's reasons

(i) Full inquiry

15. (1) First, this was a very full inquiry. The investigation had been substantial before the two inquests took place and the second, completed, inquest was very thorough. As we have indicated, it lasted for 35 days. It covered fully the medical history of Mr Donohue, the prescribing history, the suicide attempts and overdoses, the events leading up to his death and the crucial events of the evening of 21 December 2002.
16. The police, paramedics and witnesses at the scene gave evidence and a number of experts gave their opinion on prescription, medical practice and toxicology. Evidence was called by the coroner from two consultant pathologists, a forensic toxicology chemist, one professor of forensic toxicology, an accident and emergency consultant and two expert GP witnesses.
17. The inquiry of these witnesses was extensive. The claimant, the family, the ambulance service and the police were all represented by counsel. The claimant's counsel clearly probed the evidence on all material issues and in some depth. She made comprehensive submissions on the law, both in writing and orally, and had no hesitation, as we have seen from parts of the transcript, in intervening on a matter of fact or law.

(ii) The importance of the prescribing and the history of prescribing

18. (2) It was inevitable that the prescribing by the claimant and the history of prescribing would play an important part in the inquiry. The deceased had died from a mixture of Heminevrin and alcohol. The circumstances of the deceased being prescribed Heminevrin were bound to become significant. Obvious questions come to mind: What was the history of prescription? What did the claimant know about the deceased and his past? What steps did the claimant take to protect his patient from himself, knowing about his past? Would the claimant have known or suspected that the deceased might take alcohol with the Heminevrin? Was it safe to allow the deceased's mother to keep the tablets on her son's behalf?
19. One of the key conflicts of fact which the jury had to consider was whether the deceased's mother had told the claimant that her son needed the drug because he 'wanted to come off the alcohol'. This is what she said in her witness statement which was read to the jury (she had died before the inquest). If correct, that statement suggested that the deceased was still drinking. The claimant by contrast asserted that she had told him in effect the opposite, namely, that her son had stopped drinking. The claimant's role in the prescription process and what he knew or believed was therefore central to the narrative of the inquiry.
20. The fact that the claimant had previously prescribed Heminevrin to another patient, Patient X, and the circumstances in which that occurred, were relevant to his knowledge of that drug and his prescribing practice in relation to it. The background to which we have referred also led to a consideration of other drugs he prescribed to the deceased, notably dihydrocodeine. The deceased had overdosed on dihydrocodeine and alcohol a month before his death. The credibility of the claimant and the truthfulness of his evidence concerning what he knew and what he did therefore became issues in the hearing. Contrary to the claimant's submissions, we do not consider that all this was arguably irrelevant and outside the scope of the inquiry.
21. The coroner had received an opinion from Dr Grenville, an expert in general practice, that the "off-licence" prescription of Heminevrin by the claimant was 'highly inappropriate'. When asked point blank whether Heminevrin should have been prescribed to the deceased Dr Grenville said 'No'.
22. The coroner permitted the claimant to have evidence called to the contrary. Dr Gavin Young, an expert on general practice was called. Although Dr Young had been instructed by the claimant's solicitors and was called at the claimant's request, it emerged that he had made a significant error in his report in the history of the claimant's prescribing and the reason for it. The report suggested that the claimant had only prescribed Heminevrin in the first instance in 1997 because of positive advice given to the claimant by a psychiatrist. Dr Young was forced to retreat from that evidence and accepted that it was a wholly mistaken assertion. However, the claimant appears to have picked up on the passage in the report and adopted it for his own purposes, making the claim in the witness box that he first prescribed Heminevrin having received supportive psychiatric advice about its prescription. This obviously affected the credibility of the claimant which became very much in issue because some of his evidence on the facts was at odds with the evidence of other witnesses - for example, on what the deceased's mother had said about alcohol.
23. The coroner was also prepared to call, at the request of the claimant, Dr Nigel Langford, the expert who had provided a report to the CPS on general practice. On the strength of his report the CPS decided against prosecution of the claimant, as we have indicated. Dr Langford was less critical of the prescription of Heminevrin but he too became less credible on this issue when he was questioned about the extent of his expertise. It emerged that he did not have expertise in the field of general medical practice. The coroner ruled that he could only give expert evidence on toxicology, but not on what a competent GP would have done. That ruling is not criticized.

(iii) The claimant's credibility

24. (3) It was clear from the outset of the inquest (when the family's counsel stated openly that he would be inviting a finding of unlawful killing) that the claimant's credibility was unavoidably in issue. It seems clear from the transcript that from an early stage in the new inquest the claimant started distancing himself from the circumstances of what occurred in the run-up to Mr Donohue's death and then, as we have already recorded, he asserted that he had received psychiatric advice before prescribing Heminevrin in the first instance when Dr Young openly acknowledged that there was no foundation for the suggestion to that effect that appeared in his report. Various other questions about the claimant became relevant: Did he genuinely believe that two capsules of Heminevrin plus alcohol was a fatal dose? What did he know or believe about the deceased's mental state at the time of the fatal prescription? Why did he not see the patient or speak to him at the time of prescribing? Did he genuinely trust the mother to give the deceased only two capsules a day and no more? Was he right or wrong about what the deceased's mother had said about alcohol?
25. As a consequence, it was in our judgment inevitable that the history of prescribing by the claimant to the deceased and to Patient X would come under the spotlight. It was inevitable that the history would be explored. The evidence would have been incomplete without it and we do not consider it arguable that it was wrong for these matters to be considered.
26. It was, perhaps, less inevitable that other investigations involving the claimant would be looked at, but we do not consider that this evidence was arguably outside the scope of the coroner's discretion in a full inquiry such as this. In any event we were told that the GMC inquiry, which is an inquiry into the claimant's prescribing in this case, had not moved forward at all. The jury were told that nothing very much had happened, in that the proceedings were halted pending the outcome of the inquest. The PCT inquiry into other matters before 2005 was balanced by the positive evidence for the claimant that his GP practice had received a number of professional awards for quality of care. There was nothing that was arguably so prejudicially detrimental to the claimant that the inquest should now be held to be unlawful.

(iv) Other areas of evidence

27. (4) Ms O'Rourke seeks to argue that others who might have been at fault were not sufficiently investigated at the inquest to the detriment of the claimant. We do not think this is arguable. Much evidence which could potentially have shown fault on the part of others, not the claimant, was also put before the jury at some length. It included the conduct of the various services who dealt with Mr Donohue both before and at the time of his death.
28. All four ambulance personnel gave evidence. Their instructions, their conduct, their handling of Mr Donohue, their assessment of his condition, their decisions, their paperwork were all investigated thoroughly before the jury over a period of some 3-4 days. The coroner did not ignore the role of the ambulance service, as the claimant now suggests. On the contrary he left to the jury the possible verdict of accidental death contributed to by neglect.
29. The same rigour was applied to the evidence of the Head of Clinical Governance of the North West Ambulance Service, the evidence of police officers who attended (some 4 days of the inquest), as well as DCI Brennan who was called to give evidence of the investigation and police training. The bystanders were also called to give evidence.

(v) No rulings to challenge

30. (5) It is a notable feature of the complaints now sought to be made that none was made at the time. The claimant did not complain in the inquest that evidence was about to be adduced wrongly or had been adduced wrongly or that the coroner had failed wrongly to call evidence. The coroner was not called upon to make any ruling about the scope of the evidence or any particular aspect of the evidence. No rulings are now said to be arguably wrong, because none was requested.

(vi) Legal directions

31. (6) Ms O'Rourke did not, for the purposes of this renewed permission application, rely specifically on her previous criticisms of the coroner's legal directions. We therefore need only say that we can see from the transcripts and e-mail communications that the coroner took considerable care over his legal directions to the jury. He sent draft written directions to all interested persons well in advance of the time for discussion with counsel, and, by way of example, he commented in his e-mail of 9 July 2011 that he was 'anxious to involve counsel as much as possible in this exercise' which he plainly did. It is not suggested otherwise. He produced a final written draft of his legal directions following submissions by counsel. This draft was apparently accepted, after discussion, by all counsel. At the end of his detailed Summing Up he gave counsel the opportunity to identify any errors or omissions or points of concern. The order in which the verdicts were left to the jury made complete sense. Under the law unlawful killing had to come first. The others followed in a logical sequence. We see nothing arguable in the complaints made in the written submissions which, as we say, were not pursued in oral argument.
32. We would simply add that matters concerning his summing up are entirely within the discretion of a coroner, so long as he or she acts reasonably and fairly. In our judgment, there is no basis for saying that arguably this coroner did not do so. While a coroner must of course investigate 'fully, fairly and fearlessly' (R v HM Coroner for North Humberside, ex parte Jamieson [1995] QB 1), he must also be allowed to 'set the bounds of the inquiry' (ibid). There are other decisions which emphasise this point robustly. In R v Coroner for Lincolnshire, ex parte Hay, 19 February 1999, CO/2155/97 & CO/2210/98, Brooke LJ said this:

"We are unwilling for our part, to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough hearing."

(vii) Unlawful killing

33. (7) No complaint is now made about the unlawful killing verdict as such. Ms O'Rourke QC accepts that such a verdict was open to the jury on the evidence it heard though she suggests that greater prominence should have been given to evidence that suggested that there was some intervening fault on the part of others that broke the chain of causation between the claimant's negligence (which must be treated as gross for the purposes of this argument) and Mr Donohue's death.
34. We do not think it arguable that the coroner gave insufficient emphasis to these matters. They are all matters of judgment and we do not consider that a case has been made out that his judgment on these issues was unreasonable in the Wednesbury sense.
35. Ms O'Rourke's essential submission is that the verdict might have been different if the scope of the inquiry had been kept within what she contended were the proper limits. For the reasons we have already set out we do not consider this submission to be arguable.
36. In our view, this inquest was a thorough and appropriate inquiry into the death of Mr Donohue. It had to be thorough because it was an Article 2 (ECHR) or Middleton inquest. It did not arguably stray beyond its legitimate scope.
37. The coroner completed his Article 2 duties by writing a Rule 43 report which made a number of specific recommendations. Ms O'Rourke suggested that the scope of the inquest was to some degree affected by the coroner's wish to write such a report. We cannot see the basis for such a suggestion: the recommendations seem to us to flow inexorably from the way the evidence unfolded during the inquest.

Overall conclusion

38. For the reasons given, we are unable to see any basis upon which the conduct of the coroner, and thus the verdict of the jury, could successfully be impugned at a substantive hearing and, accordingly, the renewed application for permission to apply for judicial review is refused.