Case No: C1 / 2010 / 2469 
Neutral Citation Number: [2011] EWCA Civ 712
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE INGLIS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 10th May 2011

Before:

THE MASTER OF THE ROLLS
LORD JUSTICE TOULSON
and
LORD JUSTICE ETHERTON
- - - - - - - - - - - - - - - - - - - - -

Between:

	The Queen on the Application of Mack	
Appellant	
	- and -		
	
HM Coroner for Birmingham and Solihull and Ors	

Respondents	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr Stephen Simblet (instructed by Freeth Cartwright LLP) appeared on behalf of the Appellant.

Mr Jonathan Hough (instructed by Withers LLP) appeared on behalf of the Respondents.
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Toulson:

1.	This is an appeal from the dismissal by HHJ Inglis, sitting as a deputy High Court judge, of a claim to quash an inquest held into the death of the claimant's husband, Stanley George Mack.  Mr Mack died at the age of 77 at Selly Oak Hospital on 25 June 2008.  He had been generally in good health for a man of his age, although the postmortem showed that he had some coronary heart disease.

2.	On 30 May 2008 at the Priory Hospital in Birmingham he underwent elective surgery for a hip replacement.  The surgery was successful and he was discharged home on 4 June.  On the following day he became seriously unwell and was admitted to Selly Oak Hospital.  He went from Accident and Emergency to a medical assessment unit and then to a general local ward.  He had a chest infection and diarrhoea.  On 9 June he was tested for Clostridium difficile and a positive result was received on the next day.  His condition deteriorated to a point where he went into intensive care on 11 June.  At that point he was under the care of Dr Ayuk, a consultant endocrinologist.  Mr Mack had dehydration from his diarrhoea and acute renal failure, but he responded well to antibiotics and intravenous fluids.  He was considerably better when Dr Ayuk saw him on 13 June.  That was the last occasion on which Dr Ayuk saw him.

3.	On 16 June Mr Mack was moved to a Clostridium difficile Cohort Ward, known as ward B4.  The consultant in charge of his treatment on that ward was Dr Pathmakanthan, a consultant gastro-enterologist.  
4.	Events over the period from 16 June to his death on 25 June gave rise to considerable concerns.  There were five gaps in the record of administration of the drug which had been prescribed for the Clostridium difficile.  Those gaps were between the 20th and 25th June.  According to the records, the reason was put down as unavailability of the drugs.  That gives rise to a number of questions.  It is not easy to see how a particular drug was available on certain days but not others, or at certain times of the day but not others, and there has been no explanation of these matters.  One would also expect that if there was a problem with availability of this drug for patients on a Clostridium difficile Cohort Ward, the consultant in charge would have been involved and taken decisions as to how the patients should in those circumstances be managed.

5.	There were numerous defects in the recording of Mr Mack's fluids.  On 18 -20 June figures were put on the chart, but not in either the negative or positive balance, and therefore they would have been meaningless to anyone trying to rely on them to manage his hydration.  On 21 June the chart was inaccurate and on 22 and 23 June it was blank.  He had been catheterized until 19 June but it appears that the catheter was withdrawn on that day and that after that there were no measurements of his urine output.

6.	Mr Mack was seen on 23 June by Dr Pathmakanthan; there was then evidence of dehydration.  Dr Pathmakanthan requested further blood test and cultures, an ECG and close monitoring.  Further blood tests showed that his creatinine had risen again.  This was a sign of dehydration but it did not appear from any records that the results were shown to any doctor.  There was no evidence that the ECG was done, and the close observations requested by Dr Pathmakanthan appear not to have been carried out.

7.	On 25 June Mr Mack had a cardiac arrest and died.  A post mortem was conducted.  The pathologist recorded the cause of death as coronary heart disease exacerbated by Clostridium difficile.  

8.	Numerous criticisms are made of the coroner's conduct of the inquest.  The two primary complaints are about the witnesses whom the coroner decided to call or, more particularly, not to call, and his decision not to summon a jury.  Before the inquest began there was a good deal of correspondence between the family or their legal representatives and the coroner.  There was also a pre-inquest directions hearing.  The family set out at different times lists of witnesses whom they wanted called.  The list was extensive.  In his able submissions on behalf of the coroner, Mr Hough has rightly observed that although now the focus in this case has been on events between the 16 and 25 June, there were many other respects which required investigation and many other matters about which the family were asking questions.  These concerned his treatment at the Priory hospital and his treatment up to the time when he was admitted to ward B4.  The point was validly made that the coroner could not reasonably be expected to call every witness who might be able to give relevant evidence; that would have taken many medical witnesses away from their responsibilities for the treatment of patients.  In any event, the matter is governed by law.  Section 11 of the Coroners Act 1988 provides certain material: 

"The Coroner shall, at the first sitting of the inquest, examine on oath touching the death all persons who tender their evidence respecting the facts and all persons having knowledge of the facts whom he thinks it expedient to examine."

9.	There is clear authority and it is not in dispute that this gives to the coroner a wide discretion – or perhaps more appropriately a wide area of judgment -- whom it is expedient to call.  The court will only intervene if satisfied that the decision made was one which was not properly open to him on Wednesbury principles.  

10.	Prior to the commencement of the inquest the family sent a letter to the coroner dated 23 June 2009 in which they set out, among other things, the following matters.  They noted that Mr Mack was under the care of Dr Pathmakanthan from 16 June to his death on 25 June.  The letter set out what appeared to be a number of shortcomings during that period.  The letter contended that these shortcomings were: 

"demonstrably more than one of misjudgements by individual doctors or nurses: it is one where several systems of care at Selly Oak hospital were either sub-standard or not in place, or, if they were in place, hospital staff were permitted routinely not observe them."

11.	The letter then listed what they suggested were systematic failings.  Finally, the letter contained submissions as to how the inquest should be conducted and who should be called.  It was submitted that the inquest should adopt the wider definition of the question "how" the deceased died, to mean by what means and in what circumstances, and that the list of witnesses should be expanded to meet that requirement.  The letter said in particular that: 

"…we would wish Dr Pathmakanthan and nurse Jackie Robson, both of Ward B4, to be called regardless of the scope of the ‘how’ question."

It was also submitted that the inquest should be heard with a jury because the failures committed by the hospital were systemic ones and fell within the meaning of subsection 8(3)(d)  of the 1988 Act.  That Section requires the coroner to summon a jury if it appears to him that there is reason to suspect that: 

"The death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public."

12.	The inquest commenced on 21 July 2009.  The coroner ruled at the outset on the submissions that he should call more witnesses and that the evidence from Selly Oak should not be confined to that of Dr Ayuk, who was at that stage was the only witness he proposed to call from Selly Oak Hospital, and on the application for a jury.  He rejected both submissions.

13.	There is no doubt that the coroner's conduct at the inquest was conscientious and he probed with Dr Ayuk the matters which he could on the basis of the medical records available.  It is, however, very difficult to extract from what he said at the start of the inquest what were his reasons for rejecting the application that he should call Dr Pathmakanthan and for rejecting the application that he should summon a jury.  His comments were quite lengthy and somewhat discursive.

14.	He observed that usually the matters for investigation at an inquest -- matters about the identity of the deceased and by what means did the deceased come by his death – did not involve the wider questions raised by the family.  However, it is accepted on both sides that in practice he proceeded on the basis that it was proper to explore the full clinical history of what happened to Mr Mack during his stay in Selly Oak Hospital.  For that reason there is no need to consider in this case any questions of law about the proper scope of an inquest.  The real question is a much narrower one of fact, given, as Mr Hough has accepted, that while it is not for the coroner to seek to determine questions of fault, it was for him proper to investigate the full clinical story and in particular to investigate any shortcomings and failings which are also disclosed.  Could that be adequately done without calling any doctor who had actual responsibility for Mr Mack's treatment during the time that he was on ward B4?  I have no difficulty in accepting the general submission that the coroner could not be expected to call every witness who might be able to give material evidence on the subject and that, in deciding what was expedient within the meaning of the Act, it was proper for him to take account of the undesirability of having a large numbers of members of medical staff away from duties in order to attend at the inquest if the central matters could be adequately dealt with by only one doctor.  The real question is whether it was reasonably open to the coroner to conclude that these matters could be adequately investigated through the evidence of Dr Ayuk alone.
15.	On that subject, the only reason that the coroner gave at the outset of the inquest for his decision to call Dr Ayuk alone was:  

“I have to try and decide in advance which is the most appropriate witness to call and to a large extent I rely upon the hospital to choose which of the doctors is the most appropriate and what they normally do, and what I approve of, and I have approved of in this case, is that they choose a senior person, not a newly qualified man but someone who carries responsibility and has the experience, and we try and choose the period.”

16.	After judicial review proceedings had been brought, the coroner explained his reasons more fully in a witness statement.  There was argument about the admissibility of that evidence.  Leaving that to one side, the reason given by the coroner was: 

"Mr John Ayuk 
I intended that Mr Ayuk would deal with the whole period of Mr Mack's stay at Selly Oak Hospital. I knew that the Family had raised several concerns in this regard. I needed a consultant who would be able to speak with authority and experience. I was aware that the hospital trust had acknowledged deficiencies in the care which had been provided.  In choosing which consultant to call I wanted one who had personally been involved with Mr Mack's care prior to his admission to the intensive care unit. "

17.	The coroner also made it clear in his ruling at the start of the inquest wthat an inquest was a dynamic process and that he would be prepared to reconsider this matter as the inquest progressed.  

18.	HHJ Inglis, when considering the appeal in relation to this matter, said: 

"There are some features of what happened are very unfortunate: The effect of the course that the Coroner took was that nobody personally involved in Mr Mack's care in the last fortnight of his life gave evidence. The effect of that on the confidence of the family in the process may have been further undermined by the Coroner's express explanation at the inquest that it was his habit, as happened in this case, for him to ask the hospital where the  death occurred to suggest to him who should be put up as a witness. Moreover, it is impossible to over emphasise the importance of other means of finding out what happened and of redress. […] …the course that he took, of expert examination of the history by reference to the notes was not, in my view, inadequate to answer the limited questions that failed to be answered at the inquest. What the failings were and the cause and effect of those failings were matters into which the coroner inquired with Dr Ayuk and with the pathologist. An important part of Mr Simblet's submission seems to be that the evidence at the inquest did not reveal why the failures happened and who was responsible for them. If the enquiry had necessarily included answers to those questions, or an examination of them was required, then Dr Ayuk’s evidence and an analysis of the notes would plainly have been inadequate, and a much more general enquiry into the circumstances would be necessary.  But in my judgment the why and who questions did not fall to be answered or addressed as is suggested."

19.	We have been taken to various parts of the evidence of Dr Ayuk to see to what extent he was able to deal with the full clinical history.  I have come to a different view from that of HHJ Inglis.  I have noted that the coroner did not himself directly explain why he considered that Dr Ayuk would be able to deal with all the important matters and questions which were raised in relation to Mr Mack's time on ward 4B.  

20.	We are not here concerned with a case where there was one individual failing.  There appear to have been a whole series of failings, and the natural person to be asked to try to help explain them would have been somebody who had some knowledge and responsibility in relation to the ward where Mr Mack was being treated.  I am not suggesting that in every case of a hospital death there needs to be a doctor from every ward where the patient may have been; it is a fact-specific question; but the facts of the case were such as to cause very considerable concern.  Let me take a few examples.  Dr Ayuk could agree that the completion of the fluid charts was unsatisfactory, but he could not of course assist as to whether this was a one-off lapse on that ward at that time or whether there was a systemic problem and what it was.  I have already made comments about the unsatisfactory history of administration of drugs.  The only person who one might expect to be able to say whether there was a systemic problem that was affecting the treatment of that cohort, and what was done about it, was the consultant, or possibly a registrar, who was working on the ward at the time.  There is then the problem of Mr Mack's condition two days before his death on 23 June when Dr Pathmakanthan formed a plan which involved taking further blood tests, an ECG and close monitoring, none of which was properly followed up.  

21.	These matter were pursued as far as they could be with Dr Ayuk in his evidence but there were inevitably limitations in how far they could be taken.  Dr Ayuk agreed that severe dehydration could play a part in precipitating a cardiac death. Mr Hough said that the nature of that question is such that nobody else could have said anymore about it.  However, what Dr Pathmakanthan potentially would have been expected to say is something about the condition of Mr Mack.  The judgment he formed is a rather different matter from another doctor doing the best that he can from someone else's notes.  Dr Ayuk agreed that the creatinine level was a marker of dehydration, but he said that trying to determine his dehydration level was inevitably very subjective.  To ask a consultant, however able, to form a judgment as to the degree of dehydration of a patient whom he has not seen from a blood test is a very different proposition from asking the doctor who had actually seen him and who had formed a plan based on his clinical observations of the patient.  One cannot know for certain how far Dr Pathmakanthan would have been able to answer such questions a year after the event, but it is plain that there were limits as to how far Dr Ayuk could go, and I am not satisfied that any truly rational ground has been shown for saying that it was not appropriate to explore those matters with the responsible consultant, given the variety and troubling nature of the many shortcomings.  The explanation that the coroner's general practice was to accept the nominee put by the hospital is not, with respect, a satisfactory explanation.  

22.	For those reasons I conclude that the first and principal challenge made to the inquest succeeds and that there ought to be a fresh inquest.  I do not express the slightest concern about the conscientiousness of the coroner who conducted this inquest, although I have come to the view that his decision not to call Dr Pathmakanthan, or if necessary a substitute, in the matter was not rationally explainable or justifiable; but, while not suggesting any general lack of conscientiousness on his part, it would be plainly right that any fresh inquest be conducted by a different coroner.

23.	There remains the question whether a jury should be summoned.  The coroner gave no reason at the time for rejecting the submission that Section 8(3)(d) applied and required a jury to be summoned.  Later, in response to the judicial review proceedings, the coroner gave as a reason that the hospital had, shortly before the inquest, adopted an action plan for dealing with the various shortcomings identified by the family, and that in those circumstances it was not necessary to have a jury.  I do not think that it is necessary to reach a decision on the need for a jury in this case at this stage for this reason.  While in my judgment, there should be a fresh inquest before another coroner, we do not know what stage has been reached in the implementation of any plan which was brought into effect as a result of the circumstances attending the death of Mr Mack, and therefore we are not in a position to make a judgment whether Section 8(3)(d) requires that an inquest day should now be with a jury.  That seems to me to be a matter which should be determined by the coroner on submissions made to him.

24.	I would in these circumstances allow the appeal, grant judicial review, quash the inquest and direct the hearing of an inquest before a different coroner.

Lord Neuberger: 

25.	I agree.

Lord Justice Etherton: 

26.	I also agree. 

Order:  Appeal allowed

Lord Neuberger: 

27.	We have decided that, for the reasons given in Toulson LJ's judgment, the inquest and decision are to be quashed, and the appellant, Mrs Mack, who succeeded on the appeal, now asks for her costs.

28.	We have been taken to the guidance given by this court in R (Davies) v HM Deputy Coroner [2004] 1 WLR 2739 and we have heard submissions from the parties.  We think it is right to award Mrs Mack the bulk of her costs.  From her perspective it seems right that, having succeeded against the opposition of the coroner to her case, she should recover the bulk of her costs; on the other hand, the points made on the coroner’s behalf were not unreasonable and, as has been emphasised by Toulson LJ, although while reversing the decision of the coroner, we make no criticism of him beyond what has been said, and no criticism of him in terms of the part he has taken in these proceedings.  Nonetheless, it seems to us that the correct order to make is that that Mrs Mack should receive her costs from the coroner (which in practice means the local authority) from and including the hearing below.  In other words the costs of the paper application for permission to apply for judicial review and the costs leading up to the hearing below are not recoverable, but the costs of briefing counsel and instructing solicitors to attend the hearing below, and the whole of the costs of this appeal should be recoverable by Mrs Mack from the coroner.

29.	I repeat that in making this order, we imply no criticism at any stage of the part which the coroner has taken and his legal advisers have taken in these proceedings.

Order:  Application allowed