QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
HH JUDGE LUCRAFT QC sitting as a Judge of the High Court
| The Queen (on the application of Gerard Joseph Parkinson)
|- v -
|HM Senior Coroner for Kent
|Dartford and Gravesham NHS Trust
|First Interested Party
Second Interested Party
Ms Samantha Leek QC (instructed by Bircham Dyson Bell) for the Defendant
Mr Stephen Brassington (instructed by Clyde & Co LLP) for the First Interested Party
Mr Andrew Hurst (instructed by Radcliffes Le Brasseur) for the Second Interested Party
Hearing dates: 8-9 May 2018
Crown Copyright ©
Lord Justice Singh:
" On arrival in A&E she was assessed and found to be dying. Her son attempted to perform mouth to mouth resus, although advised against this by the A&E staff. She deteriorated rapidly and died soon after arriving."
The findings made by the Senior Coroner
"While I accept the evidence from Gerard Parkinson and his sisters that Mrs Parkinson was an active lady for her age there is clear evidence both from her medical history and the evidence of Dr Becker the general practitioner, that she had suffered for some time prior to her death from dementia. She was unwell on 21 December 2010 when Dr Rush attended her and treated her with antibiotics on the diagnosis of a chest infection. At a little after 5:00am on 9 January 2011 when Mrs Parkinson was taken ill and taken by ambulance to hospital she arrived in my findings sometime between 6:15am and 6:20am and was there seen by a nurse and examined as is recorded in the notes.
It was apparent to Dr Hijazi the doctor who saw Mrs Parkinson that she was in agonal breathing and given the other recorded findings he formed the view that she was sadly dying. It is clear that Gerard Parkinson did not accept this and he wanted his mother treated, and when that had been declined by Dr Hijazi I confirm that Mr Parkinson had become extremely angry and I am satisfied that he did make threats towards the doctor and was obstructive. I also accept from the evidence of Dr Hijazi that he was extremely concerned and considered security to deal with the situation. I find that as a result of the way the doctor was treated by Mr Parkinson this did result in him not being able to carry out a full examination of Mrs Parkinson, which given the evidence I have considered, I consider to be understandable. It is right to say that Mrs Parkinson was provided with intravenous fluid, antibiotics and gelofusine. The evidence of Dr Hijazi is supported and I accept by the evidence of Alison MacKay, the agency nurse who was on duty and Sister Taylor."
"Dealing with the diagnosis and treatment of Mrs Parkinson I consider that the treatment provided by Dr Hijazi was appropriate given the limited time between Mrs Parkinson's arrival at the hospital and her subsequent unfortunate death. While tests and scans could have been conducted, from a practical point of view there would not have been sufficient time for this to be carried out and completed and treatment provided prior to her death to realistically have affected the outcome.
It was in my view perfectly reasonable for Dr Hijazi to have concluded that with her agonal breathing and the results of the examination and tests available to him Mrs Parkinson was in the course of dying. Despite this he did not provide the treatment that I have already outlined I do not accept that there was any failure to diagnose and treat Mrs Parkinson given the circumstances to which I have referred that the doctor encountered when he attempted to examine Mrs Parkinson."
" Prior to the start of the inquest I indicated I did not accept that this was an inquest that should be heard pursuant to Article 2 of the European Convention on Human Rights, but that I would keep this under review during the course of the hearing. I confirm this I did. I have considered the family's submission in this respect but I remain of the view that this inquest should not have been conducted on Article 2."
"Whilst I accept there was obviously a duty of care owed to the deceased I do not accept that this has been breached or made a material contribution to the death and certainly was not so serious that it can be categorised in so far as gross negligence.
On the evidence I do not accept that there is any evidence that Mrs Parkinson was neglected in the treatment and the care she was provided with at the Darent Valley Hospital by Dr Hijazi or other members of the staff."
"On the evidence that I have read and heard, I have come to the conclusion that the death of Kathleen Parkinson was due to natural causes, and I am satisfied that any additional treatment that could have been provided to her in the short time she was at Darent Valley Hospital, would have been ineffective given the advanced stage of dying which she was at the time of her arrival at the hospital on 9 January 2011. I have considered the submissions pursuant to paragraph 7 schedule 5 of the Coroners' Justice Act 2009, I do not consider any report is necessary from me. May I finally express my sympathy to the family."
The Claimant's Grounds of Challenge
(1) The Senior Coroner's finding that the enhanced investigative duty under Article 2 did not arise in this case can only have been based upon a misinterpretation of the applicable law and in breach of the Claimant's Convention rights.
(2) The Senior Coroner's finding regarding the medical cause of death was irrational.
(3) The Senior Coroner's use of a short form Conclusion to find that Mrs Parkinson died from "natural causes" did not constitute a sufficient discharge of his duties under the Coroners and Justice Act 2009 ("CJA"), under subordinate legislation and at common law; and/or was irrational.
(4) The Senior Coroner's finding that the Claimant's conduct obstructed the care which would otherwise have been provided by Dr Hijazi to Mrs Parkinson was irrational.
(5) The Senior Coroner's failure to make a Prevention of Future Death Report can only have arisen from a misunderstanding of the nature of his duty to do so under the CJA.
"(1) The purpose of an investigation under this Part into a person's death is to ascertain
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 , the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than
(a) the question mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);
(b) the particulars mentioned in subsection (1)(c).
This is subject to paragraph 7 of Schedule 5."
(a) a senior coroner has been conducting an investigation under this Part into a person's death,
(b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner must report the matter to a person who the coroner believes may have power to take such action."
"(1) After hearing the evidence at an inquest into a death, the senior coroner (if there is no jury) must
(a) make a determination as to the questions mentioned in section 5(1)(a) and (b) (read with section 5(2) where applicable), and
(2) A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of
(a) criminal liability on the part of a named person, or
(b) civil liability.
"(1) Name of the deceased (if known)
(2) Medical cause of death
(3) How, when and where, and for investigations where section 5(2) of the CJA applies, in what circumstances the deceased came by his or her death
(4) Conclusion of the coroner as to the death
(5) Further particulars required by the Births and Deaths Registration Act 1953."
Note (i) to those provisions states that:
"(i) One of the following short-form conclusions may be adopted
I. Accident or misadventure
IV. Lawful/unlawful killing
V. Natural causes "
Note (ii) states that, as an alternative, or in addition to one of the short-form conclusions listed, the coroner may make a brief narrative conclusion.
"suggested, rather than compulsory, conclusions. The object of this list is to standardise conclusions over the whole country and to make the statistics based on the Annual Return more reliable by avoiding as far as possible any overlap or gaps between the different conclusions."
"Despite the existence of an 'official' list of suggested conclusions, there is no statutory requirement that a 'conclusion as to death' be in any particular form; all that is needed is that it should be expressed in concise and ordinary language so as to indicate how the deceased came by his death. "
"Neglect is narrower in meaning than the duty of care in the law of negligence. It is not to be equated to negligence or gross negligence. It is limited in a medical context to cases where there has been a gross failure to provide basic medical attention."
"(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose position is such as to show that he obviously needs it may amount to neglect "
" That does not mean that, for example in a medical context, there has to have been no action at all, simply that the action (or lack of it) on an objective basis must be more than a failure to provide medical attention. It must be a gross failure. The difference will be highly fact-specific."
"In a medical context it is not the role of an inquest to criticise every twist and turn of a patient's treatment. Neglect is not concerned with the correctness of complex and sophisticated medical procedures but rather the consequences of, for example, failing to make simple ('basic') checks."
" The 'touchstone' is 'the opportunity of rendering care which would have prevented death: Staffordshire case [(2000) 164 JP 665, at 675-6]. It is not enough to show that there was a missed opportunity to render care which might have made a difference; it must be shown that care should have been rendered and that it would have saved or prolonged life (not 'hastened' death): Khan [at para. 43]"
At para. 83 it is said that neglect must be shown on a balance of probabilities. A "real possibility" is not enough, citing R (Khan) v HM Coroner for West Hertfordshire  EWHC 302 (Admin). Para. 84 advises against using the phrase "aggravated by neglect" or "lack of care". It is suggested that a better phrase is that neglect "contributed to the cause of death."
The main authorities on the procedural obligations in Article 2
"The Convention was imported into domestic law by the Human Rights Act 1998. Article 2.1 provides that: 'Everyone's right to life shall be protected by law'. That primary duty imposes on the state a duty not to take life and also a duty to take appropriate legislative and administrative steps to protect life, for example by the provision of a police force and criminal justice system. It imposes on state authorities such as the police and prison authorities the duty to protect those in their immediate care from violence either at the hands of others or at their own hands: see LCB v United Kingdom (1998) 27 EHRR 212; Osman v United Kingdom (1998) 29 EHRR 245; Edwards v United Kingdom (2002) 35 EHRR 487 and R (Amin) v Secretary of State for the Home Department  1 AC 653. The duty also extends to organs of the state, such as hospital authorities, to make appropriate provision and to adopt systems of work to protect the lives of patients in their care: see Savage v South Essex Partnership NHS Foundation Trust (MIND intervening)  AC 681."
" In addition to these substantive duties, there is an obligation on the state in respect of the investigation of deaths and it is the scope of this duty which falls to be considered in this appeal. That duty has been described in Jordan v United Kingdom (2001) 37 EHRR 52 as requiring the initiation of an effective public investigation by an independent official body into any death where it appears that any of the state's 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."
" whether the state's obligation to conduct an effective investigation into a death (with the associated possible necessity to provide representation) arises in all cases where a death occurs while the deceased was in the care of the state or whether it arises only in a much narrower range of cases where it is arguable that the state has breached its substantive article 2 obligations."
" The Strasbourg jurisprudence on the question of engagement of the obligation of investigation is not always easy to understand and successive courts in this country have struggled to interpret it."
" First, there is a duty imposed on the state to set up an effective judicial system by which any death, which might possibly entail any allegation of negligence or misconduct against an agent of the state may be adequately investigated and liability established. That will apply in a wide range of circumstances. Second, there is a duty proactively to conduct an effective investigation into the circumstances of a death in a much narrower range of circumstances where the evidence suggests a possible breach of the State's substantive duty to protect the life of those in its direct care."
That second type of duty was described by counsel in the case as "the duty of enhanced investigation", a phrase which has been adopted by Mr Rawlinson in the present case. Smith LJ concluded that the Lord Chancellor's guidance in respect of Article 2 inquests was intended to cover only the narrower range of inquests which attract the duty of enhanced investigation: see the final sentence of para. 52 of her judgment.
"I would summarise his conclusions by saying that article 2 imposes an obligation on the state to set up a judicial system which enables any allegation of possible involvement by a state agent to be investigated. That obligation may be satisfied in this country by criminal or civil proceedings, an inquest and even disciplinary proceedings or any combination of those procedures. This obligation envisages the provision of a facility available to citizens and not an obligation proactively to instigate an investigation. Only in limited circumstances (I depart from Richards J only so far as to decline to call them exceptional) will there be a specific obligation proactively to conduct an investigation. Those limited circumstances arise where the death occurs while the deceased is in the custody of the state or, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation. They do not include cases where the only allegations are of 'ordinary' medical negligence."
" We see the Court distinguishing between two types of article 2 obligation in respect of investigation: the wide obligation to provide judicial procedures available to citizens by which any death can be investigated if a citizen wishes to have allegations investigated and the obligation of proactive investigation by the state in a narrower range of circumstances. The decision of the court was that the circumstances of the death did impose on the state the duty of proactive investigation (to be effected by coroner's inquest) because the allegations went beyond the negligence of individual professionals and included allegations of systemic failure. "
"105. Subject to what is said in paras 97-103 above (where the court expressed its reservations about the effectiveness of adversarial civil proceedings) we agree with those conclusions. It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguable medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.
106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act, by giving a wider meaning to 'how' as envisaged in the Middleton case  2 AC 182, and provided that it is carries out the kind of full and fair investigation which is discussed earlier in this judgment in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective.
107. In these circumstances, while article 2 is engaged in the sense described above, the present system including the inquest does not fall short it its requirements in any way. On the contrary, it complies with it."
"I am satisfied from examination of all these authorities that, in respect of duties of investigation, there are two senses in which article 2 may be said to be engaged. It may be engaged in a very wide range of cases in which there is an obligation to provide a legal system by which any citizen may access an open and independent investigation of the circumstances of the death. The system provided in England and Wales, which includes the availability of civil proceedings and which will in practice include a coroner's inquest, will always satisfy that obligation. In addition, article 2 will be engaged in the much narrower range of cases where there is at least an arguable case that the state has been in breach of its substantive duty to protect life; in such cases the obligation is proactively to initiate a thorough investigation into the circumstances of the death."
" it will be necessary for care to be taken to ensure that allegations of individual negligence are not dressed up as systemic failures "
" the person best placed to decide whether article 2 is engaged is the coroner who is to conduct the inquest. "
"Fundamentally, article 2 requires a state to have in place a structure of laws which will help to protect life. In Osman v United Kingdom 29 EHRR 245, 305, para 115, the European court identified the "primary duty" of a state under the article as being:
'to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.'
But, as the parties in Osman's case recognised, the state's duty goes further, and article 2: 'may also imply in certain well defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.'"
"44. Mrs Savage was a detained patient, but first and foremost she was a patient in a hospital. And it has long been recognised that a state's positive obligations under article 2 to protect life include a 'requirement for hospitals to have regulations for the protection of their patients' lives'. See the opinion of the commission in Isiltan v Turkey (1995) 81-B DR 35, which the European court relied on, for instance, in Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 25, para 49. When referring to the state's obligations to protect life, the court said:
'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'
See also Tarariyeva v Russia (2006) 48 EHRR 669, para 74, and Dodov v Bulgaria (2008) 47 EHRR 932 , para 80.
45. These passages show that a state is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2. The European court put the point quite shortly in Powell v United Kingdom 30 EHRR CD 362, 364:
'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 [the state's] 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 error 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.'
See also Dodov v Bulgaria 47 EHRR 932, para 82."
" the vulnerability of people suffering from mental illness, and the consequential need to protect them, are themes that run through the case law of the European court. "
"68. In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.
69. In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient's right to life under article 2.
70. Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient's life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell's case 30 EHRR CD 362.
71. The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell's case.
72. Finally, article 2 imposes a further 'operational' obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities' more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a 'real and immediate' risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient's life. This is comparable to the position in Osman's case 29 EHRR 245 and Keenan's case 33 EHRR 913. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998."
" The common law of negligence develops incrementally and it is not always possible to predict whether the court will hold that a duty of care is owed in a situation which has not been previously considered. Strasbourg proceeds on a case by case basis. The jurisprudence of the operational duty is young. Its boundaries are still being explored by the [European Court] as new circumstances are presented to it for consideration. "
" It is clear that the existence of a 'real and immediate risk' to life is a necessary but not sufficient condition for the existence of the duty. This is because a patient undergoing major surgery may be facing a real and immediate risk of death and yet the Powell case shows that there is no Article 2 operational duty to take reasonable steps to avoid the death of such a patient."
" The Strasbourg jurisprudence shows that there is such a duty to protect persons from a real and immediate risk of suicide at least where they are under the control of the State. By contrast, the [European Court] has stated that in the generality of cases involving medical negligence, there is no operational duty under article 2."
" her position was far closer to that of such a hypothetical patient than to that of a patient undergoing treatment in a public hospital for a physical illness. "
"166. In the particular context of health care the Court has interpreted the substantive positive obligation of the State as requiring the latter to make regulations compelling hospitals, whether private or public, to adopt appropriate measure for the protection of patients' lives (see, among many other authorities; Oyal v Turkey, no 4864/05, s.54, 23 March 2010, and Lambert and Others v. France [GC], no 46043/14, s 140, ECHR 2015 (extracts)).
167. However, it has not excluded the possibility that the acts and omissions of the authorities in the context of public health policies, may, in certain circumstances, engage the Contacting Parties' responsibility under the substantive limb of Article 2 (see Powell, cited above)."
"In cases where allegations of medical negligence were made in the context of the treatment of a patient, the Court has consistently emphasised that, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not 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 (see, among many other authorities, Powell, cited above, and Sevim Güngör v. Turkey (dec.), no. 75173/01, 14 April 2009)."
"are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives."
"concerns a specific situation where an individual's life is knowingly put in danger by denial of access to life-saving emergency treatment It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment."
"arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients' lives, including the life of the particular patient concerned, in danger "
"the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, insofar as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person's life is at risk if that treatment is not given "
"The dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly "
"There must be a link between the dysfunction complained of and the harm which the patient sustained."
"The dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above "
"The general aim of the Human Rights Act 1998 was to align domestic law with Strasbourg law. Domestic courts should not normally refuse to follow Strasbourg authority, although circumstances can arise where this is appropriate and a healthy dialogue may then ensue Conversely, domestic courts should not, at least by way of interpretation of the Convention rights as they apply domestically, forge ahead without good reason. "
" If the existence or otherwise of a Convention right is unclear, then it may be appropriate for domestic courts to make up their minds whether Convention rights should or should not be understood to embrace it. Further, where the European Court of Human Rights has left a matter to states' margin of appreciation, then domestic courts have to decide what the domestic position is, what degree of involvement or intervention by a domestic court is appropriate, and what degree of institutional respect to attach to any relevant legislative choice in the particular area "
Summary of the relevant principles on Article 2
Ground 1: failure to comply with Article 2 and section 5(2) of the CJA
"With the aim of preventing cardiopulmonary arrest the Trust has devised an Early Warning System. Known hereafter as Patient At Risk (PAR) scoring. All clinical staff are trained in the identification of critically ill patients and the use of physiological observation charts to enhance decision making and care escalation. This preventative system incorporates a critical care outreach service, which supports the senior medical staff in managing medical emergencies. The resuscitation officer re-enforces the PAR scoring tool and the outreach team during resuscitation training sessions. The outreach team and resuscitation officer educate staff on how to use the PAR score appropriately." (Bold in original)
"Patients who deteriorate to PAR score 6 or above are classed as a medical emergency. Staff must dial 2222 stating medical emergency and their location. A medical emergency team is then activated. This expert team will then promptly attend and help stabilise the patient with the ward staff. The composition of the team can be seen in appendix 2." (Bold in original)
"The aim of the scoring system is to allow the early identification of patients at risk of deterioration in their clinical condition and thereby improve their management. It is applicable to all adult areas of Darent Valley Hospital. "
" The PAR score is a management, a risk management tool and validated. It is required in A&E to actually highlight or pinpoint patients that may be deteriorating given the very busy environment that A&E is. If the tool that was working in A&E just solely to identify a patient that may deteriorate while you are busy trying to do something else. As a result the 2222 is not applicable at all to A&E, I mean this is our bread and butter this is what we do. I do need someone else to come from a different department to sort my patient out for me, that's what I trained to do. Therefore, with A&E policy any tool you are actually, it is reasonable to modify it to suit the practical environment, and for A&E this has been done in such a way that the 2222 does not apply at all in A&E. We cannot mobilise the medical emergency team every time we have five patients coming into resus. The system would completely just break apart. We have one registrar who is on call, you don't expect the registrar to leave the ward where there are also very ill patient come to A&E, when we are trained to deliver that sort of care. So that does not apply.
Mr Payne: Is it fair to say that the sort of situation referred to in the resuscitation policy in the box we have just looked at, is that more applicable to wards?
Mr Kika: It is absolutely more applicable to wards and not A&E."
" the medical emergency team, otherwise known as MET is basically for use in the wards. In A&E we have the ability and the capacity and the experience to treat our patients, so I have never called, I cannot recall any time when we had to call the MET team in the emergency department because we can shift our patients are [sic] their conditions are changing, it is a dynamic condition, we can shift them from A to B, as their condition worsens we can take them to resuscitation bay, we can call the crash team, we do not use the MET in Accident and Emergency".
"Mr Payne: And can you very, very briefly just summarise what the key things are that you were taught as a triage nurse?
Ms Relox: We need to prioritise patient, we have this they call it Manchester triage, we have the coding, the colour coding, if it's red it's like resuscitation already, orange can be seen within, what do you call, minutes. And then we have the yellow that can wait but we give the treatment, and green can wait.
Mr Payne: Is that, are you describing the PAR score, the priority?
Ms Relox: Prioritising the patient. How you prioritise the patient.
Mr Payne: And is that by reference to the Manchester score or the PAR score?
Ms Relox: Manchester."
"Mr Rawlinson: [as] an agency nurse who is not an employee, a direct employee of the Trust, how do you become acquainted with Trust policies, for instance, in respect of resuscitation?
Ms McKay: Because we have to read the policies.
Mr Rawlinson: I see, and just tell me a little bit about those arrangements. Who requires you to read the policies, how are you required to do it?
Ms McKay: It's the actual emergency department, and whoever is in charge of that department. Whenever you go there to work the shift, in the beginning you have to sign a form to say that you have read through operational policies, that's policies and procedures within that department."
"Just one thing I do want to say as I have been questioned on it is, we have a policy but a massive part of my job, which is what I should be doing today, is training people. So in relation to this, any grey areas which clearly we have highlighted are not grey with our staff because they are trained. You have clearly said you had a mixture of opinions, well we have a mixture of people, you had agency nurses who are not employed on a permanent basis so they perhaps wouldn't have got all of the training, but the vast majority of our staff are highly trained by me, by my service and if there are grey areas, they are very clearly rectified, but we will also clarify the policy."
"Mr Ramsay: So can I just ask you about this because if in the, well let me ask you this. Did the PAR scoring apply to A&E at the time?
Mr Morrison: The PAR scoring is there as a tool to support staff, but the algorithm would need to be adapted for the Emergency Department due to the skills and resources already in that department, because it is called an Emergency Department, or the old term was Accident and Emergency, so the resources already in that department are huge in comparison to your average ward in Darent Valley Hospital. So the PAR scoring, and you are quite right to highlight this, it is an area of clarification that we need to go and update and clarify our policy, so you have highlighted something that we didn't pick up on. But it is a clarification point. We haven't had any individual incidents because the staff in the Emergency Department and the intensive care unit are very clear that due to the resources, human and equipment, that the actions would need to be adapted. Now, if and we still need to keep a fairly open mind so if the Emergency Department had a bad day and they were severely under-resourced with human resources, they could fall back onto this system and the outreach and call the medical emergency team. But if they did that routinely every day without fail our hospital would fall apart and we would not have emergency cover for sick patients on the wards, so there is an element of common sense and I appreciate for anyone reading our policy it isn't clear and I apologise for the amount of time this has taken and I will go straight back to the Trust and update our policy, but the staff are clear and we have never had any issues in relation to that." (Emphasis added)
Ground 5: breach of para. 7 of Sch. 5 to the CJA
Grounds 2 and 3: finding regarding the medical cause of death was irrational and conclusion of "natural causes" insufficient
(1) That the medical cause of death was "bronchopneumonia combined possibly with right lung pulmonary thrombi" (see para. 9 above).
(2) That no action that the hospital might reasonably have taken could have changed the outcome.
(3) That Dr Hijazi was prevented from examining Mrs Parkinson at 06:50 by the Claimant's behaviour.
That the medical cause of death was "bronchopneumonia combined possibly with right lung pulmonary thrombi"
"In my opinion bronchopneumonia combined possibly with right lung pulmonary thrombi were her cause of death based upon the post mortem reports and histological evidence I have examined."
"I accept the evidence of Professor Mary Shepperd (sic), a highly experienced cardiac pathologist who carried out an examination of the slides, considered the reports of the pathologists who had carried out post-mortem examinations. She gives as her opinion as to the cause of death as bronchopneumonia combined possibly with right lung pulmonary thrombi and I accept this as the cause of death."
" you have provided me with a report that does not fulfil the remit for which is was commissioned."
" the report is not only a departure from the explicit instructions I gave you, I believe it is also seriously flawed."
"The consideration of the pathological findings in this case is hindered by the apparent differing opinions given by the Consultant Pathologists. I would strongly question whether Dr JERREAT, a highly experienced Forensic Pathologist and Member of the Home Secretary's Register of Forensic Pathologists, would have missed a massive pulmonary thromboembolism at original post-mortem examination. The subsequent finding of multiple small thromboemboli would not necessarily constitute a life-threatening event . It is my experience, and that of many others, that small pulmonary thromboemboli are frequently identified at post-mortem that bear no relevance to the cause of death. One could argue that the finding of small volume thromboemboli in only one lung at post-mortem does not necessarily represent a cause of death therefore."
"Although Dr JERREAT suggested that the cause of death included pneumonia, this has been shown to not be the case. It should be noted, however, that it may be difficult to diagnose bronchopneumonia at post-mortem based solely upon macroscopic findings. Given the histology that has since been produced, it would be fair to consider this as not relating to Mrs PARKINSON's death."
"I cannot comment on the extent of the bronchopneumonia based upon examination of 8 sections of lung and I do not know where these samples were taken from within the lungs. I also cannot comment on the number, extent and location of the pulmonary thrombi."
"I would also agree with Dr Swift that Dr Jerreat missing a massive pulmonary embolism in the main pulmonary vessels of both lobes of lung would be unlikely and there is lack of detail in the post mortem report about the pulmonary emboli described by Dr Clelland.
The point that he makes that the "cause of death included pneumonia, this has been shown not to be the case," [see  above] I would disagree with that as the sampling on the lungs is limited to only 8 blocks and the sampling location we are unaware of. Although there is only bronchopneumonia in one block of lung tissue it is present so we cannot deny that there was bronchopneumonia within the lung. We cannot establish the extent of this bronchopneumonia due to the disagreement between both pathologists' macroscopic description and the lack of detail concerning the sampling that was done to the lung.
Dr Swift thinks that her cause of death is acute heart failure resulting from coronary artery disease as there is pulmonary oedema and hepatic congestion. I disagree with this as pulmonary oedema and hepatic congestion can occur in any sudden death when the heart stops and does not specifically indicate coronary artery disease. Both Dr Jerreat and Dr Clelland disagree about the presence of coronary artery disease so it remains open as to its role in the cause of death. Unfortunately there is no histological evidence to agree or disagree with either pathologist."
"Given the fact that no other cause of death was found at autopsy, in other words no other organs like the brain or abdomen, showed the cause of death, you then come to the lungs and the heart in this case. The heart by description only I have to say does not confirm a cause of death. The coronary arteries by the second pathologist did not show significant narrowing and there was no damage, but that was by naked eye, and the heart weight was normal. So that, based on that evidence you have to say the heart, there is no evidence of the heart causing the death." (Our emphasis.)
"Then you are left by a process of elimination with the lung, and you take the description of the initial pathologist, who was there for the first autopsy when the body was fresh, that is when you get the best findings than a frozen body two months later."
(1) That the multiple small pulmonary emboli referred to by Dr Clelland (which he described in his oral evidence as 'thromboemboli') were "only in the right lung" and the left lung was not affected by thrombi. She observed that someone "can happily survive with one lung cut off".
(2) The size, number and distribution of the emboli observed were not such as to have been likely to cause death. The emboli described by Dr Clelland of 10 mm in length were "lying free unattached but the main blood flow comes through the big vessel and the hilar vessel and the lobar vessel but there is no mention of" those vessels being blocked. Usually in fatal cases of pulmonary emboli, she said, the emboli occupy the large, the main vessel. In addition, she said that terminally ill elderly patients may get thrombi forming inside them because of poor blood flow rather than by reason of the development of DVT in the legs. She said that if Dr Clelland observed only in the region of a dozen pulmonary emboli (which is what he said in his evidence) then that is a "very small number compared to the number of branches throughout the whole right lung" and that the size (3-10 mm, which is also what he said in his evidence, although he sought to say 6-11 mm in his Addendum report submitted after the evidence had been closed and which the Senior Coroner declined to receive) was not such as would have blocked any of the main vessels. She averred that "the lung has a dual blood supply there is the pulmonary artery [and] the bronchial arteries coming from the aorta [so] a dozen thrombi would not significantly compromise the blood supply."
"[In] Box 2 of the Record of Inquest [the Senior Coroner] recorded Professor Sheppard's conclusion "that death was probably the result of bronchopneumonia" combined possibly with thrombi. This raises two issues. First, if he found the presence of [pulmonary embolism] was a mere possibility then why refer to it all in Box 2 (which exists to record the probable causes of death. Second, ALL the evidence before the Court was that any blood clots in the lung would be emboli not thrombi."
That no action that the hospital might reasonably have taken could have changed the outcome.
"On the evidence I have read and heard, I have come to the conclusion that the death of Kathleen Parkinson was due to natural causes, and I am satisfied that any additional treatment that could have been provided to her in the short time she was at Darent Valley Hospital, would have been ineffective given the advanced stage of dying which she was at the time of her arrival at the hospital on the 9 January 2011."
"Dealing with the diagnosis and treatment of Mrs Parkinson I consider that the treatment provided by Dr Hijazi was appropriate given the limited time between Mrs Parkinson's arrival at the hospital and her subsequent unfortunate death. While tests and scans could have been conducted, from a practical point of view there would not have been sufficient time for this to have been carried out and concluded and treatment provided prior to her death to realistically have affected the outcome."
Ground 4: The Senior Coroner was wrong to find that Dr Hijazi was prevented from examining Mrs Parkinson at 06:50 by the Claimant's behaviour.
"It was apparent to Dr Hijazi the doctor who saw Mrs Parkinson that she was in agonal breathing and given the other recorded findings he formed the view that she was sadly dying. It is clear that Gerard Parkinson did not accept this and he wanted his mother treated, and when that had been declined by Dr Hijazi I confirm that Mr Parkinson had become extremely angry and I am satisfied that he did make threats towards the doctor and was obstructive. I also accept from the evidence of Dr Hijazi that he was extremely concerned and considered security to deal with the situation. I find that as a result of the way the doctor was treated by Mr Parkinson this did result in him not being able to carry out a full examination of Mrs Parkinson, which given the evidence I have considered, I consider to be understandable."
"He tried to engage with her son and his partner and found them extremely difficult. Mr Parkinson was very, very angry, distressed and aggressive and he was urging him to do something and he could not understand that his mother was dying. He explained to Mr Parkinson that his mother was dying and there was not much he could do. He did mention 91 but this was not a main factor in the decision not to do anything. He considered that she was in the last moments of life and doing anything at that stage would not have been beneficial to her. He considered the agonal breathing was a terminable event and further investigation was not necessary. He felt threatened by Mr Parkinson who was abrupt and aggressive towards him. DNR was discussed and the doctor informed Sister Taylor of the position. The doctor had left at about 6:55am and when he came back it was 7:08am and checked Mrs Parkinson's pulse. He found that there was none. He spoke to his consultant Dr Kika and he suggested the medical registrar on call should be involved with the certifying of the death. Dr Hijazi said that Mr Parkinson was extremely hostile and was very, very angry and aggressive and saying that the doctor should do something and Mr Parkinson had pushed him and accused him of killing his mother. The doctor asked Sister Taylor to speak with Mr Parkinson. The doctor had considered calling security but as this was the last moments of Mrs Parkinson's life he thought that it was better for Mr Parkinson to remain with her. The doctor had never ever felt threatened by relatives to this extreme before. The doctor was unable to certify Mrs Parkinson's death because he was concerned and worried about his own personal safety. Mr Parkinson told him that he hoped my head would be crushed in a road accident. He found Mr Parkinson difficult to communicate with and so he had left."
Mr Parkinson asked what was wrong with his mother and the doctor replied "I don't know." He did not carry out an examination of his mother, he considered the doctor's attitude as he expressed it as being venomous. His mother called out for help, she was agitated and restless, breathing fast and moving around vigorously. Mr Parkinson asked the doctor when he was walking away "is she dying?" and he said the doctor had responded "I don't know if she is but if she is we don't do anything she is 91." In the view of Mr Parkinson his mother was not in agonal breathing, Mr Parkinson was totally shocked at the attitude of the doctor, he spoke to Jennifer and said to her "he is murdering her, what are we going to do?" Mr Parkinson did not consider his behaviour was obstructive he just wanted his mother examined, diagnosed and treated. He did accept that by the end of the encounter he may have sworn, he said the doctor went away and returned after ten minutes and he had suggested to the doctor that adrenaline should be administered. He said the doctor was aggressive and hostile and shouted "she is 91 let her die in peace." It was accepted by Mr Parkinson that he did say that the doctor was murdering his mother. He had spoken over the telephone to his sister Ruth and when his mother had stopped breathing Mr Parkinson gave mouth to mouth resuscitation to his mother. He said the first time that Dr Hijazi had used a stethoscope was when his mother was certified dead".
"He was cross examined at length by Mr Hurst on behalf of Dr Hijazi but maintained that his evidence was accurate. He accepted that his mother had a degree of dementia, he did not accept that his mother used a zimmer frame. He said that she may have been prescribed one but that she would only have used it when leaving hospital. He maintained that Dr Hijazi had been criminally responsible and he denied making racist remarks. He did not accept that there was no clinical justification to carry out CPR. He denied having any contact with security he maintained that his mother was alive until 7:40am and that his mother had been neglected by Dr Hijazi and that he was solely responsible for her death. He did not accept that his mother had agonal breathing at any point. He said that no one else examined his mother before she was declared to have died."
"Mr Payne: Now, did you see, well was Mr Parkinson in any way aggressive or did he shout at you or in any way abusive you?
Sister Taylor: To me personally, no.
Mr Payne: What about to Dr Hijazi?
Sister Taylor: Yes he did.
Mr Payne: At that stage or afterwards?
Sister Taylor: It is difficult to put that into the context of exactly when. But as I have put in my notes, he was very agitated, he was clearly very unhappy, he was upset and I was trying to explain to him why we'd made the decisions we had and he just accused Dr Hijazi of murdering her."
When Senior Staff Nurse Mackay attended on day 9 of the Inquest, the following exchange took place:
"Mr Payne: Did he seem distraught, angry, calm?
Ms McKay: No, angry.
Coroner: Sorry I didn't hear that?
Ms McKay: Angry.
Coroner: He was angry?
Ms McKay: Mmm.
Mr Payne: And did he seem angry from the outset or did, is it something that developed during the half hour that you spent with Mrs Parkinson?
Ms McKay: No, it was something that developed.
Mr Payne: And what did you put that anger down to? Why do you think he became angry? Well let me ask you, sorry, did he ever say to you why he became angry?
Ms McKay: No, not to me, no he didn't speak to me.
Mr Payne: And are you able to say why you thought he became angry.
Ms McKay Well, that would be me making assumptions, I, I don't know because I didn't have a conversation with him.
Mr Payne: Fair enough. And how did you know that he was becoming angry, if you didn't speak to him?
Ms McKay: Because I heard him being verbally aggressive to Dr Hijazi.
Mr Payne: You have just said that you remember hearing Mr Parkinson being aggressive to Dr Hijazi, how close to Dr Hijazi and Mr Parkinson were you when the conversation you describe was taking place.
Ms McKay: How close was I?
Mr Payne: Yes.
Ms McKay: Not that far away, a few feet maybe.
Mr Payne: And were there raised voices, or was it at a conversational level?
Ms McKay: No, raised voices.
Mr Payne: And where there raised voices, was, how was Dr Hijazi responding to Mr Parkinson.
Ms McKay: In a normal fashion, in a polite fashion.
Mr Payne: And do you remember what Dr Hijazi was saying to Mr Parkinson?
Ms McKay: I don't remember the exact words, but whatever he said it wasn't raised, he hadn't raised his voice.
Mr Payne: And do you remember the, do you remember what Mr Parkinson was saying to Dr Hijazi?
Ms McKay: I don't remember the actual words, but it was the tone.
Mr Payne: Do you remember the thrust of the conversation they were having?
Ms McKay: No, no.
Mr Payne: And how would you describe the atmosphere at that time?
Mrs McKay: It was very tense, it wasn't nice, it was hostile it just didn't feel right and that's why I think I remember the majority of us, well not majority, but that time."
"Mr Payne: Now when Dr Hijazi came you've explained, and I don't want to upset you again, did he, how would you describe Mr Parkinson, Gerard's behaviour?
Ms Higgins: He was pleading, he was pleading with Dr Hijazi to help his mother. He was asking him not in an aggressive, there was only one person aggressive in that hospital that day and it was Dr Hijazi, trust me. He was begging him to help his mum and it was heart breaking to watch."
"Dr Hijazi: Again, I tried, I explained to him that it wouldn't help, he's I, you know do something, he kept asking me, begging me to do something. I said whatever I'm going to do is not going to help, OK. I don't think Mr Parkinson was in a state of mind that I could rationalise any sensible discussion with him at all.
Mr Rawlinson: And there we have it. Dr Hijazi, you have just said he was begging you for help. This isn't a man who was obstructing you from doing your job, this is a man begging you for help. Now would you like to withdraw the allegation that he obstructed you from carrying out any observations of Mrs Parkinson now?
Dr Hijazi: No, I would not because he pushed me, he swore at me, he was angry, he was not accepting.
Mr Rawlinson: When did he push you?
Dr Hijazi: I couldn't remember whether it was first or second time, but I remember him pushing me, I remember him swearing at me, I remember him shouting very loudly.
Mr Rawlinson: He was shouting that you weren't helping his mum and you were murdering his mum. It may have been most unpleasant, most unpleasant, but he didn't lay hands on you did he?
Dr Hijazi: Sorry?
Mr Rawlinson: He did not lay hands on you.
Dr Hijazi: He did."