High Court of Ireland Decisions

1. This is an application for judicial review brought by the Eastern Health Board in respect of an inquest currently being held by the Coroner for the City of Dublin, Dr. Brian Farrell, seeking a number of declaratory reliefs and Orders of Prohibition and Mandamus. The inquest is into the death of one Alan Duffy on 31st December, 1995 at the age of 22. The deceased had suffered from a moderate form of mental retardation. It is not in dispute that he died of aspirational pneumonia. Following on the death, the Consultant treating the deceased, Dr. MacMathuna, proposed completing the death certificate in the following manner:-

2. The family objected to this entry in that they alleged that the aspiration pneumonia which was the immediate cause of death arose due to the deceased's mental handicap which in turn was caused by an encephalopathic reaction to pertussis vaccination when he was an infant. This vaccination is more popularly known as the three-in-one vaccination. As a consequence, no death certificate was filled up and the matter was referred to the Coroner who directed an inquest.

3. The inquest was held on 4th December, 1997. The Eastern Health Board received notice of the intended inquest on the 30th October, 1997 but were not told of any intention to investigate a possible connection between a three-in-one vaccination and the death. When the hearing commenced it emerged that the Coroner had assembled a large number of expert medical witnesses who, as the Eastern Health Board points out, were there for the purpose of giving evidence not only about the facts of the death but also into any possible connection between the death and the three-in-one vaccine. That vaccine had been administered between 14th October, 1973 and 5th February, 1974. The medical evidence adduced did not establish any link but the father and the mother of the deceased gave evidence explaining why they thought there was a link. A very full hearing ensued and the experts and witnesses were cross examined by Mr. Michael McDowell, S.C. on behalf of the Health Board. He protested to the Coroner that it was not part of his remit to investigate the link with the three-in-one vaccine, that he was trespassing into the area of possible civil liability which he was not entitled to do under the Coroners Act, 1962. After the Coroner had heard the medical evidence, he stated that the jury needed to know the circumstances surrounding the administration of the vaccine in the 1970s and that he had the statutory power to request an independent medical expert to carry out a further study of all the evidence that had been given to date and also into the possible link between the three-in-one vaccine and infantile spasm. This report was commissioned from Dr. Karina Butler, a Consultant in Paediatric Infectious Diseases, at our Lady's Hospital for Children in Crumlin. The inquest has been continually adjourned since then on different dates on the grounds that the report was not ready until finally three days were set aside to hear it in April 1999. Various suggestions were made as to the resumed procedure but the Coroner was in favour of retaining the existing jury, having the evidence to date read out to them and continuing the inquest accordingly. By Order of 12th April, 1999, Mr. Justice McCracken granted leave for this judicial review. The inquest stands adjourned pending the hearing of the judicial review.

4. The complaints of the Eastern Health Board against the Coroner can be summarised as follows:-

5. The Coroner, in addition to disputing these matters in his Statement of Opposition, claims that the application for judicial review was not made promptly or in accordance with Order 84, Rule 21(1) of the Rules of the Superior Courts and that no facts have been relied upon justifying any extension. The time point raised in this case is a very serious one and I have had to consider it carefully. There is no doubt that the Applicant is out of time and without any doubt the application has not been made "promptly". Furthermore, the Applicant, through its Counsel, participated in the hearing. Nevertheless, I do have a discretion and I think that the issues are far too important in this case to permit the judicial review application to be determined on a time point only unless some serious prejudice was going to be caused. In view of the fact that there was at any rate an extremely lengthy adjournment, I do not think that any serious injury can be caused by my extending the time and of course if the Eastern Health Board is correct in its legal arguments it is wholly against the public interest that the inquest should be allowed to continue in the manner in which it has been carried out. There is power under the Coroners Act for a jury to make a recommendation and the Health Board makes no secret of the fact that it is afraid that a misguided jury could make a recommendation not warranted on the evidence but which could be extremely damaging to public confidence in the vaccine practices. In all the circumstances, therefore, I think that I should deal with the application on its merits.

6. I will take as my starting point the decision of the Supreme Court in Green -v- MacLoughlin cited above. In that case, the deceased had died from gunshot wounds and the Coroner had suggested four alternative verdicts. These were:-

7. Blayney J. considered that the Coroner, in allowing these alternative verdicts, was in clear breach of Section 30 of the 1962 Act. In the words of the judge:-

8. In a later part of the judgment at p.13, Blayney J. considered what was the meaning to be given to the phrase, "how death occurred". He pointed out that apart from ascertaining where and when it occurred the inquest had to be confined to enquiring into this. Blayney J. concludes:-

9. While admittedly this case is rather different in that of course the question of an indirect connection with a three-in-one vaccine would itself be a medical rather than a non medical question, I think that the whole tenor of Blayney J.'s judgment was to the effect that what the Coroner was concerned with was the proximate medical cause of death. This view would also be in line with the English jurisprudence. A large number of English authorities have been helpfully furnished to me. The most useful and most authoritative of the modern English cases is R. -v- H.M. Coroner for North Humberside and Scunthorpe , ex parte Jamieson, [1995] 1 QB1. Sir Thomas Bingham, M.R. (as he then was) exhaustively reviewed the law based of course on the English legislation which is not identical with the Irish legislation but for the purposes of this case there is no material difference. At the end of his judgment and under the heading "general conclusions" at p.44, he sets out fourteen principles. The first of these is the most important of all and I quote:-

10. It is true that under the English relevant statutory instrument, the Coroner has to investigate how, when and where the deceased came by his death. The Irish legislation in Section 30 of the 1962 Act requires the Coroner to investigate how, when and where the death occurred. But given the juxtaposition of "when" and "where" with the word "how", I do not think that there is any difference in the two forms of enquiry. It is merely a difference of wording. The line may be difficult to draw. For instance, if a deceased dies from lung disease caused by an exposure to asbestos many years before, is that to be investigated by the Coroner? I think that it would be unwise to set down any hard and fast rule but in each case, the Coroner should be investigating what is the real and actual cause of the death. This death, it appears to me, was caused by pneumonia. Any conceivable link with the three-in-one injection is too nebulous and indirect to make it appropriate for an investigation by the Coroner. The very fact that the Coroner ended up having to commission an independent report is somewhat indicative of the impracticality of such an inquest and I do not believe that such an inquest was intended by the wording of Section 30 of the Coroners Act, 1962.

11. Having regard to my views on the main issue, it is not strictly necessary for me to deal with the other subsidiary points but I will discuss them briefly. I find it difficult to understand where the power arises for the Coroner to commission an independent medical report. Section 26 of the 1962 Act seems to restrict his right to call on additional witnesses and subsection (2) of that Section sets out a condition precedent. Quite apart from any doubt there may be as to whether subsection (1) had intended to include expert evidence as distinct from factual evidence neither of the alternative conditions precedent set out in subsection (2) seem to have been complied with.

12. If I am right about that, then there should obviously not have been the lengthy adjournment but even if I am wrong about that it was certainly undesirable to say the least to permit an inquest before a jury to be adjourned for such a length of time for the purpose of getting fresh expert evidence.

13. In so far as the family wanted the question of the link with the three-in-one vaccination to be investigated, it would seem to me that it was for the purpose of pinning fault. But in fairness to the Coroner, I do not think that that was his approach. I think that he was genuinely investigating whether there could have been a link or not independently of any question of fault. I am therefore inclined to think that there was no breach of Section 30 on this particular account.

14. As I have formed the view that it was not within the remit of the Coroner to investigate any indirect link with the vaccination at infancy, I will make the declaration sought in No.1 of the reliefs and I will discuss with Counsel whether any other reliefs are appropriate.