Is it an inquest or a claim?

When preparing a statement for the Coroner, Mr A raised a concern that, although the cause of death of Mrs X was clostridium difficile, a review of her notes demonstrated that there may have been a missed opportunity to diagnose cancer.  This was many months previously, but it was arguable that the delay in diagnosis had led to more extensive surgery with increased chances of infection (which had materialised), leading to antibiotics and ultimately c.diff.

This is the sort of extended line of causative argument that clinical negligence lawyers are used to evaluating, but arguably in circumstances where the Coroner is restricted to a narrow interpretation of the word “how” the deceased came by her death ie “by what means” (as opposed to “by what means and in what circumstances” (R v Her Majesty’s Coroner for the Western District of Somerset and another ex parte Middleton [2004] UKHL 10)), this is stretching the Coroner’s inquiry beyond its appropriate remit. Whilst the facts of an inquest should be fully, fairly and fearlessly investigated, a Coroner should decide at what point the chain of causation becomes too remote to form a proper part of the investigation (R (on the application of Helen Takoushis) v Her Majesty’s Coroner for Inner North London and Another [2005] EWCA Civ 1440, at para 47 per Sir Anthony Clarke MR, approving Sir Thomas Bingham in R v Inner West London Coroner ex parte Dallaglio [1994] 34 All ER 139).

Junior Counsel instructed on behalf of an NHS Hospital Trust may, in these circumstances, feel they are doing their NHS client a service arguing that caselaw precludes the Coroner inquiring into the causative significance of the delayed diagnosis.  However, experience has demonstrated that in appropriate cases the NHSLA, even where there had been no Letter of Claim, may welcome a dialogue with the NHS Trust so a decision can be made pre-inquest where admissions need to be made.  At the heart of this dialogue will remain the NHSLA’s long-standing commitment to get the right money to the right patient at the right time, but the NHSLA also have an obligation to ensure that the public purse does not incur unnecessary cost.

An admission of liability gives the NHSLA a stronger base for contending that costs of legal representation of the family at an inquest following an admission, cannot be said to be recoverable as part of the costs in any subsequent civil proceedings.  They are not “incidental to” those proceedings.  On the basis of the judgment of Davies J in Roach (Roach v Home Office [2009] EWHC 312 (QB)), it is open for a Defendant to “seek to avoid or minimise any potential liability for such costs” by admitting liability prior to an inquest.  The limitation on this protection stems from the decision in Bowbelle (Ross v Bowbelle (Owners) [1997] 2 Lloyd's Rep 196) where Clark J endorsed Master Hurst’s decision that it was reasonable for the Steering Committee to attend the inquest through Counsel (notwithstanding a previous concession of negligence), in order to establish what “pre-death pain and suffering had been endured by those who lost their lives”.

Whether or not solicitors for the family choose to inform the Coroner of a previous admission of liability does not impact the prohibition in Rule 42 of the Coroner’s Rules.  This precludes a Coroner returning a verdict which is suggestive of civil liability or criminal liability on the part of a named individual.  However, in these circumstances, a narrative verdict can be anticipated and it may well be that the family’s advocate will do all he or she can to persuade the Coroner within the terms of the verdict to reflect on whether or not the treatment received by the deceased was “appropriate”.  Here the words of Lord Bingham in the House of Lords in Middleton (see above) do not assist, since they give as a model narrative verdict the following, “the deceased took his own life, in part because the risk of doing so was not recognised and appropriate precautions were not taken to prevent him from doing so.”  Here the NHS advocate is best armed with the words of Maurice Kay LJ in  R (P) v HMC Avon [2009] EWCA Civ 1367 (an appeal from the decision of Beatson J) “Summing up to a jury in an Article 2 inquest is inherently difficult.  For example, how can the jury be provided with an intelligible explanation of the relationship between "how [viz in what circumstances] the deceased came by his death", the prohibition on the expression of "any opinion on any other matters" and the avoidance of language which "appears to determine any question of civil liability.”" Referring to Lord Bingham’s model wording, Maurice Kay LJ continued, “with great respect, it seems to me that the fact that appropriate (a word often pregnant with ambiguity) precautions were not taken and this was causative of the death may well seem to be addressing issues of civil liability.  It depends what is meant by "appropriate".  It is impossible not to sympathise with coroners and juries who have to navigate these confusing waters.  It would not be surprising if a jury opted for the simplest solution."

An overview is needed early on where there are shortcomings in treatment that may have had fatal consequences.  Separating out the inquest and claims processes may not always be the right approach.