Newsletters Criminal Regulatory 7th Dec 2018

Challenging the Coroner: R (Parkinson) v HM Senior Coroner for Kent, Dartford & Gravesham NHS Trust & Sameer Hijazi [2018] EWHC 1501 (Admin)

In a recent judicial review, Mr Parkinson sought to challenge the coroner’s conclusion into the death of his mother. In rejecting his claim, the Divisional Court provided a considered analysis of the principles surrounding Article 2 inquests, as well as highlighting just how difficult it will be to challenge a coroner’s factual findings. Whilst the case turned on the particulars of medical treatment, the analysis provided is likely to have wider implications.

The facts in brief were these: Mrs Parkinson experienced breathing difficulties and was admitted to A&E where her condition deteriorated and she died a short time later. At the subsequent inquest Mr Parkinson alleged that the Trust, and in particular Dr H, had failed to provide adequate care to a culpable degree. The coroner heard evidence over three weeks from the family, nursing, medical and management personnel, and a number of expert witnesses in Pathology, Emergency Medicine, and Haematology. In his conclusions the coroner absolved the Trust and Dr H from criticism in respect of either their collective or individual clinical management. In delivering a conclusion of death by natural causes the coroner accepted Dr H‘s account of Mrs Parkinson‘s admission, assessment and management, and rejected the serious allegations made against him by Mr Parkinson as to his conduct and care.

Before the Divisional Court, counsel for Mr Parkinson submitted that the case required an enhanced inquest in order to be compliant with Article 2, and inter alia, that the findings regarding cause of death and the quality of the care provided were irrational.  He further criticized the coroner for failing to make a PFD report. Rejecting these contentions, the court provided a helpful summary of the legal position in respect of Article 2:

(i) Article 2 imposes substantive positive obligations on the state and procedural obligations.

(ii) The primary substantive positive obligation is to have in place a regulatory framework compelling, in this case, hospitals to have in place appropriate measures for protecting life.

(iii) The primary procedural obligation is to have a legal system – civil or criminal – in place by which individual failures can be the subject of appropriate remedy.

(iv) The enhanced duty of investigation – where it falls to the state itself to initiate an effective and independent investigation – will only arise in medical cases where there is an arguable breach of the state’s own substantive obligations. A case where there is a systemic failing may trigger an enhanced and proactive investigation by the state whereas an “ordinary” case of medical negligence will not.

(v) Cases of individual negligence should not be “dressed up” as systemic failings. The coroner will be best placed to decide whether a case engages this enhanced obligation under Article 2.

On the facts of this case, the court declined to find Article 2 applied. Adequate systems were in place.

As to the factual findings, the court noted that the claimant had to establish they were “perverse” in order to succeed. The court added: “Merely to state the proposition in that way is sufficient to demonstrate that ordinarily this is a threshold that is extremely difficult for an applicant for judicial review to cross”. He failed to do so. The coroner was entitled to come to the view he did on the evidence. The court also made no criticism of the absence of a PFD report.

In dismissing the case, it is significant to note that ordinarily interested parties will not receive their costs. In this instance, however, the court awarded both parties their costs in full, subject to a detailed assessment. In the court’s view, both interested parties had separate interests which warranted separate representation, and both had provided substantial assistance in resolving the factual issues in this case.

Christopher Geering

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