QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Manchester Civil Justice Centre
Royal Courts of Justice Strand, London WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
and
MR JUSTICE KERR
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THE QUEEN (on the application of TERESA TAINTON) |
Claimant |
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- and - |
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HM SENIOR CORONER FOR PRESTON AND WEST LANCASHIRE and LANCASHIRE CARE NHS TRUST |
Defendant |
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Bridget Dolan QC (instructed by HM Senior Coroner for Preston and West Lancashire) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 25 May 2016
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Crown Copyright ©
Sir Brian Leveson P:
Introduction
The Facts
"the time between presentation with respiratory symptoms to referral was 8 months. This is entirely unacceptable. The majority of this delay was in HMP Preston where abnormal blood tests were not acted upon and serious symptoms such as coughing up blood, weight loss and difficulty swallowing not followed up."
" ensure that nurses refer prisoners to see a GP when they report concerning symptoms, that GPs refer to specialists appropriately and that action identified at consultations are followed up."
" the Trust accepts, as does Nurse Makoni, that she ought to have referred Mr O'Neill to one of the prison GPs when he presented to her in January 201[3] complaining of haemoptysis.
It is further accepted that had a GP referral been made, the GP would have made a two week referral to hospital for Mr O'Neill to undergo additional investigations which would probably have involved endoscopy with a diagnosis of cancer being made around mid-February 201[3].
The Trust is, of course, unable to say how advanced the cancer was in mid-February 201[3]."
" if it had been diagnosed at a stage before it had spread then the answer would be yes, possibly, because he would have been staged and if it was operable and if he chose to have an operation which obviously again is the patient's decision yes, but only if it was before it had spread as soon as it had spread then you may be picking it up a little bit earlier on the curve.
"Radiotherapy would not have been offered once it had spread that is a local treatment. Chemotherapy, if he was fit enough for chemotherapy, and that was always a debate with Mr O'Neill, if he was fit enough for chemotherapy, the average increase in life expectancy is 3 months so you might move someone from 9 to 11 or 12 months".
She then answered "yes" to the question: "it's more likely than not that he would have lived for 3 months longer".
"whatever the stage of cancer there is a benefit but, if your baseline life expectancy without chemotherapy is 4 months it is going to go to maybe 6. But if your life expectancy is maybe 9 months because the cancer hasn't spread so much it might go to 11".
(1) It was not known when the cancer had started to spread from the oesophagus to the lungs and liver, or locally.(2) A referral on 25 January 2013, which should have occurred, would have been to the lung rapid referral unit.
(3) If that had occurred, it is only possible to speculate whether secondary cancers would have been detected.
(4) The lung symptoms, i.e. coughing of blood, were either not connected to oesophageal cancer or, if they were, the cancer must have already spread to the lung tissue.
(5) On Dr Young's evidence, 90 per cent of tumours have already generated secondary cancers at the time of diagnosis (more accurately, she said it was up to 90 per cent).
(6) Surgery for Mr O'Neill as at 9 May 2013 was a possibility but, statistically, it was likely his cancer had by then already spread, before diagnosis.
(7) It was not possible to extrapolate backwards in time from July 2013 to discern the point at which he became unable to tolerate chemotherapy.
(8) However, by 9 May 2013, Mr O'Neill had already lost three kilograms in weight and was not eating properly; at the time that was attributed to depression.
(9) While many patients will accept the adverse effects of chemotherapy for a short extension of life, it was unknown whether Mr O'Neill would have tolerated it and when he became unable to tolerate it.
(10) There were too many "unknowns" to enable the jury to "make any meaningful decisions about what is a possibility "; "any firm conclusions" would be "inherently unsafe".
(11) This was not a case where there were two "schools of thought" as to whether he could have chemotherapy or not; "the variety of information that is missing from this is extremely large".
(12) This was not a case where the jury's views were needed for a "regulation 28 report" (on prevention of future deaths), because the failings identified and admitted by the Trust had been addressed by it;
(13) He was not convinced that he had any "general discretion" to leave the issue of causation to the jury.
(14) If he was wrong about that and he did have such a discretion, he declined to exercise it because he did not think it would be "fair .. to ask them to make conclusions when so much of the evidence is missing".
(15) In the circumstances, he would therefore leave to the jury only the short form conclusion that Mr O'Neill had died from natural causes; he was prohibited by both the "Galbraith" and "Galbraith plus" tests from doing otherwise.
The Issues
"The coroner has a power in an Article 2 inquest, but not a duty, to leave to the jury, for the purposes of a narrative conclusion, circumstances which are possible (ie more than speculative) but not probable causes of death: Lewis; LePage . A narrative conclusion may also (but does not have to) include factual findings on matters which are possible but not probable causes of death where those findings will assist a coroner in a Report to Prevent Future Deaths: Lewis."
"initiate investigations capable of, first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue."
Analysis
" a verdict of an inquest jury which does not express the jury's conclusion on a major issue canvassed in the evidence at the inquest cannot satisfy or meet the expectations of the deceased's family or next-of-kin. Yet they, like the deceased, may be victims. They have been held to have legitimate interests in the conduct of the investigation (Jordan 37 EHRR 52, para 109), which is why they must be accorded an appropriate level of participation: see also R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653. An uninformative jury verdict will be unlikely to meet what the House in Amin, para 31, held to be one of the purposes of an article 2 investigation: "that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."