Christopher Geering
Editor
Foreword
Welcome to the 2 Hare Court Summer Newsletter.
The new Medical Examiner and death certification system came into effect this week. I produce a summary of the key reforms.
As for recent appellate decisions, Chris Gillespie considers to what extent a tribunal may ignore prejudicial material it has seen in GMC v Dutta. Vivienne Tanchel analyses when a costs order may be obtained against a regulator in SRA v Tsang. I look at the limited need for reasons to support factual findings, as discussed in GMC v Higgins. Sarah Przybylska and Rebecca Malczewski set out the limited bases upon which regulator appeals may succeed in GMC v Roach. In respect of coronial proceedings Ben Rich looks at the interesting Article 2 case of Parkin, whilst Alexandra Tampakopoulos summarises the Chief Coroner’s annual report.
Until 9 September 2024, a medical certificate of cause of death (MCCD) could be issued on the word of the attending doctor alone. That is perhaps surprising when you consider the findings of the Third Shipman Report in 2003. Dame Janet Smith noted then:
“the present system depends almost entirely on the good faith and judgement of the doctor who signs the MCCD or decides that the case should be reported to the coroner. It also depends on the courage and independence of doctors, for the system places upon them some responsibility to police their colleagues, for example by refusing to certify a death which may have been contributed to by some misconduct, lack of care or medical error on the part of a professional colleague. It may not be easy for a junior member of the clinical team responsible for the care of the deceased to withstand the expectation that s/he will certify the cause of death, rather than report the case to the coroner for investigation.”
It has, it would seem, taken until 2024 for Parliament to address this weakness. The Medical Certificate of Cause of Death Regulations 2024, The Medical Examiners (England) Regulations 2024, The Medical Examiners (Wales) Regulations 2024 finally came into force 9 September 2024, putting in place a new statutory Medical Examiner system.
Since 2019 it is right to say that NHS England and NHS Wales Shared Services has operated a Medical Examiner system on non-statutory basis. As of June 2024, this had looked into around 900,000 deaths. However, the new death certification reforms not only put this regime on a statutory basis but – most importantly – impose a new requirement that all deaths are now reviewed independently either by a Medical Examiner or by a coroner.
A Medical Examiner is a medical practitioner who undertakes to provide independent scrutiny of causes of death. The regulations do not specify as much, but the National Medical Examiner envisages such practitioners should be consultant grade. They are trained in the legal and clinical elements of death certification processes….
Dutta is a well-known name in professional discipline. In this more recent Dutta the High Court upheld certain grounds of appeal in relation to facts found by the MPT and remitted the matter back. However, the High Court rejected grounds which related to delay and the admissibility of evidence.
There were two complainants and there had been a delay of four years in relation to one complaint and four and half years in relation to the other. After it was conceded that COVID must have played some part in the delay and that no application to stay the proceedings as an abuse of process had been made, it was argued that the LQC had not given a sufficiently robust direction on the impact of delay. In fact, the LQC had specifically directed that the MPT should bear in mind the effect of the passage of time on witnesses’ memories in that recollections can fade or become confused. It was submitted that the LQC should have gone further and directed the MPT to look at each individual allegation and the extent to which it was or was not supported by contemporaneous records and/or other evidence.
The High Court held that Dr Dutta had not identified any particular evidence or witness lost as a consequence of the delay. There was no specific prejudice over and above the potential degradation of witnesses’ memories, with which the LQC had dealt. The effect of delay applied to witnesses called by both sides. No application had been made to stay the proceedings and both parties had addressed the issue in written submissions.
At first glance, this part of the ruling appears to downplay the significance of Dutta v GMC [2020] EWHC 1974, in particular the emphasis given in that case to contemporaneous documentary evidence. However, it is apparent that what influenced the High Court in this case was the inability of Dr Dutta to point to specific examples of where the documentary and oral evidence were significantly at variance. What this case demonstrates is that directions on delay (and other issues) should not be given mechanistically but rather should be tailored to the particular facts….
The courts has consistently maintained that in order to ensure that Regulators maintain their statutory obligation to protect the public, costs should not simply be awarded against them unless specific circumstances apply. In the recent judgment of Solicitors’ Regulatory Authority v Tsang Eyre J reviewed the relevant authorities and once again confirmed the position.
In 2017 the SRA served production notices on Ms Tsang in relation to concerns they were looking into in respect of advice she had given to property clients between 2015 and 2016. After significant delay the SRA did not commence its formal investigation until 2019 and it was not until April 2021 that Ms Tsang was advised that the SRA was recommending that the matter should be referred to a Tribunal. The case was finally referred to the Tribunal in July 2022, some 5 years after the SRA’s request for documents and almost 7 years after Ms Tsang was instructed in the work which formed the subject of the allegations.
The hearing lasted two days and involved legal argument only. Neither the SRA nor Ms Tsang called any evidence. The allegations were dismissed, and the Tribunal awarded costs in excess of £75,000 in favour of Ms Tsang. In making this decision the Tribunal set out that it had considered the relevant Sanctions Guidance which referred to the well-known judgment in Baxendale-Walker v The Law Society [2007] EWCA Civ 233. This confirmed that Regulators are in a different position to parties to commercial litigation and
“Unless a complaint was improperly brought or, for example, had proceeded as a “shambles from start to finish”, when the Law Society was discharging its responsibilities as a regulator of the profession, an order for costs should not ordinarily be made against it on the basis that costs followed the event”.
The SRA appealed the issue of costs. In rejecting this appeal Eyre J made the following important observations….
Dr Higgins faced allegations of sexual misconduct in the workplace from four employees. Whilst numerous, these allegations were relatively low level. The most serious was Dr Higgins grabbing Ms A, the main complainant, and trying to kiss her against her will. After a lengthy trial, the charges were largely found proved and he was erased.
On appeal the principle challenge was to the Tribunal’s assessment of Ms A’s credibility. The Appellant alleged that the Tribunal had failed to have regard to relevant evidence, including messages Ms A sent the Appellant. Alternatively, it was said the Tribunal did not provide adequate reasons for its decision to believe her, not least in light of these messages.
None of these messages directly concerned the allegations. However, they spanned the time period of the harassment, leading up to Dr Higgins kissing her against her will on 9 October 2020. They were summarised in the judgment in this way:
“i) On 11 July 2020 a photograph of her face with love hearts added;
ii) On 19 July 2020 a photograph of her face blowing a kiss or pouting with love hearts on her face and an annotation “U cute”;
iii) On 29 July 2020 a photograph of part of her face, taken at her home and asking “You coming here tonight? Xxx”;
iv) On 6 September 2020 a photograph of her face blowing a kiss or pouting;
v) On 18 September 2020 a message containing a photograph of a bar at a party and the message “think you should come”;
vi) On 3 / 4 October 2020 images at home, one saying “Yeah, ok when you coming?? Xx”.”
In addition, the Appellant relied on messages and actions after the October 2020 incident….
Sarah Przybylska & Rebecca Malczewski
In Roach v General Medical Council [2024] EWHC 1114 (Admin), Ritchie J provided a comprehensive overview of the proper approach to appeals founded on a challenge to findings of fact made at Stage 1 by a professional tribunal.
The judgment is worth reading in full but the key points are as follows.
In addition to serious procedural or other irregularity, there are three standard gateways through which a tribunal’s decision might be “wrong”: failure to give sufficient reasons, Wednesbury unreasonableness and, perhaps controversially, wrong but not Wednesbury unreasonable
In relation to this last, Ritchie J concluded that there are three threshold principles set out in the case law which make the gateway difficult to open:
He held that in order to be satisfied on the balance of probabilities that the findings of fact were wrong, the appellate Court will need to consider first why the tribunal was wrong – a lack of evidential foundation, a failure to give weight to relevant matters, a mistake or misunderstanding of evidence – and second whether that reason is sufficiently powerful to surmount the three threshold principles set out above….
There is a sort of ritual dance done by those of us who practise in the coronial jurisdiction in health cases. The representatives of the family of the deceased frequently engage in a lonely struggle to persuade the coroner that they should hold an Article 2 inquest. Against them the ranks of lawyers for the health professionals and health organisations unite in arguing that the duty is not triggered.
The argument revolves around the two well-known duties.
The first is the “systems duty”, which imposes on the state the obligation to have in place “appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory” [R (Maguire) v Blackpool and Fylde Senior Coroners & Ors [2023] UKSC 20 at page 103].
In a healthcare case, it might be thought that most submissions that this duty had been breached would be unarguable. After all, Maguire [p104] notes that this duty:
“… operated at a high level, was relatively easily satisfied and would only be found to have been breached in rare cases; that, in particular, individual lapses in putting a proper system into effect were not to be confused with a deficiency in the system itself…”
The court went on to hold that the UK had a regulatory regime in place to ensure high standards of care that was monitored and enforced by the Care Quality Commission, and the implication appeared to be that absent some failure at the general regulatory or monitoring/enforcement level, failures in lower level systems would not trigger the duty. Nevertheless the argument is still frequently made in coroner’s courts that the absence (or poor operation) of some rather low-level system (e.g. for recalling patients, or making sure tasks were carried out) represents a state failure….
HHJ Thomas Teague KC recently came to the end of his tenure as Chief Coroner, delivering his final annual report to the Lord Chancellor in May. As ever it is requisite reading for those who practise in coronial courts.
Of particular note is the Chief Coroner’s exploration of the intellectual foundation of the coroner service with the aim of reinforcing the principle that an inquest is a summary medico-legal investigation into the immediate cause of an unnatural death rather than a more “exhaustive exploration of the wider circumstances, seeking to explain not just how each deceased person died, but why”.
The Chief Coroner reiterated that is it clear from the statutory framework that the coroner’s role is to investigate not to adjudicate, and “an inquest should remain a hearing that is narrowly focused on establishing a person’s immediate cause of a death, as opposed to in effect becoming a surrogate public inquiry”. He considered that there is “a deep truth in the idea that bereaved families owe a posthumous duty to care for their deceased relatives and that the state in turn is under an obligation to do what it reasonably can to enable them to discharge that duty”. From this “deep truth” he draws the following conclusions:
In his final analysis, the Chief Coroner draws the following practical conclusions….
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