Those familiar with the Coroner's Court will be aware that one of the defining attributes of an inquest is which of two categories it falls into, depending on whether or not the death can be said to be imputable to the state and whether the enhanced investigative obligations under Article 2 European Convention on Human Rights is engaged. Where a death occurs without engagement of Article 2 the Coroner (or jury) will look at who died, when and where, and how they came by their death. If Article 2 is engaged, the investigation will need to include the wider circumstances of the death, namely not only how but also in what circumstances the person came by their death. Therefore, Article 2 inquests are more complex, requiring greater resources of both the Coronial system and the public bodies involved.
The breadth of an Article 2 inquest is the subject of an interesting new case. The judgment in this case (R (on the application of Teresa Tainton) v HM Senior Coroner for Preston and West Lancashire  EWHC 1396 (Admin)) is an interesting variation on the established law in this area, previously settled since Lewis (R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire (2009) EWHC 661 (Admin)). It leaves room for interpretation and will be cited by advocates representing families, public bodies and any other Party.
In summary, the facts of the Tainton case were that a prisoner died of oesophageal cancer after healthcare staff missed a number of opportunities to identify his condition, thereby delaying diagnosis to a point when no effective treatment options were viable. The healthcare provider admitted failings in relation to the deceased's care. However, medical evidence was not conclusive that earlier identification would have extended his life, particularly as the deceased's ability to tolerate chemotherapy was unknown.
The Coroner did not ask the jury to make findings as to whether the failings in medical care could be said to have caused or hastened the death due to the lacuna of evidence. He left to the jury only the choice between two short-form conclusions: natural causes or open. The jury returned a conclusion of natural causes.
The material relevance of the admissions which had been made in Tainton were that the healthcare provider had been able to identify, accept and address failings such that no finding of fact was required of the jury to assist the Coroner in making a Regulation 28 Report to Prevent Future Deaths (PFD).
In this case, the Court:
- Upheld the Coroner's decision that it would not be safe (on a Galbraith plus basis) for a jury to find that the diagnosis of cancer earlier would have led to a measurably longer life.
- Held that the Coroner had discretion but not a duty to leave to the jury the question whether the admitted failings had possibly made any contribution to the death. It upheld the Coroner's discretion in this case not to leave this question to the jury.
Despite this, it was ultimately found that a short-form conclusion of natural causes in the context of the admitted failings was "materially incomplete and verging on misleading by omission" and therefore insufficient to satisfy Article 2. The Coroner should have directed the jury to include in the Record of Inquest (Box 3) a brief narrative of the admitted shortcomings supplemented by an explanation that it could not be concluded that these shortcomings significantly shortened the deceased's life since the Coroner had rightly concluded that the jury could not safely find that the admitted failings had probably contributed to the death.
The implications of this decision are significant, and not without difficulty.
HH Judge Peter Thornton QC has produced Guidance to Coroners dated 18 June 2016 in connection with this case, and suggests that "by way of a checklist, a Coroner sitting with a jury in an Article 2 case such as this (ie involving admitted failings by a state body) should consider asking himself/herself the following questions
- Is there evidence that the admitted failings probably made any contribution to the death? If so, would it be safe (on a Galbraith plus basis) for a jury so to find?
- If not, is there evidence that the admitted failings possibly made any contribution to the death? The Coroner has a discretion, not a duty whether to leave this question to the jury. The discretion must be exercised reasonably and fairly.
- If the above are not left to the jury, should the admitted failings be entered into Box 3 of the Record of Inquest in order to complete the account of the circumstances in which the deceased came by his death? Would the account be incomplete without them? If so, the jury should be directed to do so and add an explanation that the failings did not make any contribution to the death".
It will be interesting to see how this case is applied in practice. As a Record of Inquest is a public document, greater recording of admitted failings could deter public bodies from making early admissions. However, fairly reflecting the content of the inquest hearing in the conclusion may allow for positive comment on the work of public bodies. It is worth noting that the facts of Tainton were unusual, as the potential of a short-form conclusion being "misleading" was heightened by the conclusion in question being natural causes, which could be seen to mask the admitted failings of the public body in question.
Despite finding that non-causative failings should be recorded in this case, Sir Robert Leveson and Mr Justice Kerr also state: "We are not suggesting that any admitted failings have to be included in every case" (para.79) so Coroners will need to carefully decide on the facts of each case how best to apply this ruling.
For further information or to discuss any aspect of this article, please contact Clementine Robertshaw, Solicitor.