Was it unfair or irrational for a coroner to rely upon evidence in an inquest and reach a conclusion, without properly exploring the evidence herself or allowing the family a meaningful opportunity to challenge it?
No, held Lord Justice Burnett in Wilson -v- HM Senior Coroner for Birmingham and Solihull.
The coroner presided over an inquest into the deaths of three patients in September 2014. A consultant cardiothoracic surgeon took exception to a single sentence included by the coroner in her short narrative conclusion in respect of each deceased:
‘A historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in [the deceased's] operation being dealt with by a different surgeon.’
This aspect of the coroner's conclusion was premised on the evidence of the Trust's medical director in respect of the identification of significant and consistent inaccuracies in the surgeon’s post-operative recording, following an investigation triggered by higher than expected mortality rates in the patients he treated.
The surgeon contended that this sentence should be removed from each of the narrative conclusions as:
- It was unfair to rely upon the medical director’s evidence because the surgeon had not been given a meaningful opportunity to challenge it; in particular, in exploring the underlying data which had been said to support it;
- The coroner had failed to properly explore the evidence relating to the conclusion; and
- The coroner's conclusion had been irrational.
Lord Justice Burnett and Justice Holroyde dismissed the application for judicial review. With regard to the surgeon’s grounds of challenge:
- He had been aware of the conclusions reached within the Trust’s internal investigation report, confirmed in evidence by the Trust’s medical director – the report having been disclosed to the GMC and the surgeon prior to the inquest. As such, the submission that the surgeon was not afforded adequate notice was dismissed.
- The surgeon had not taken an opportunity to engage with this evidence as offered by the coroner during the inquest. Further, Lord Justice Burnett rejected the submission that the only way the matter could be dealt with fairly or adequately was to explore the individual medical records of the 81 or more patients reviewed within the report including the prescription records. The coroner’s view was that the purpose of exploring this aspect of the evidence was beyond the scope of the inquest. Lord Justice Burnett noted that as per R -v- North Humberside Coroner, ex parte Jamieson  QB 1, the scope of an inquest is a matter for the coroner to determine. The surgeon was aware of the issue and could have engaged with it, but chose not to. Therefore, the coroner had not erred in her approach.
- Lord Justice Burnett concluded that on the evidence before her, the coroner was entitled to come to the conclusion she did in the narratives of each patient and consequently her decision was not irrational.
The High Court’s decision confirms that the scope of an inquest is a matter for the coroner to determine and where the coroner has reached a logical and fair decision, the court will not interfere to change or remove parts of the coroner’s conclusion.
In respect of what makes a ‘fair’ decision, it is notable that Lord Justice Burnett drew attention to the fact that the surgeon could have used material at the inquest which he had obtained via GMC proceedings, but chose not to do so. In respect of what is ‘fair’ in an inquest, it is important to bear in mind that the coroner’s court is inquisitorial not adversarial. As such there are different rules in terms of evidence and liability to those which are ordinarily applied in criminal and civil proceedings. Equally, parties are expected to be far more flexible, procedurally, when it comes to evidence.
In this context, the surgeon in this case had had a fair opportunity to engage with the purported evidence about his skills, but he chose not to. It followed that he could not claim a disadvantage when the same material was then used in the inquest proceedings and he was not given a chance to question its validity.
The decision also emphasises the importance of engaging with evidence admitted during the course of the inquest and using all endeavours to counter potential adverse conclusions being drawn in respect of individuals and organisations’ respective conduct.
Our annual inquest event is taking place on 4 November at Haydock Park Racecourse, Haydock. Watch out for further details.