PRACTICE, PROCEDURE AND FAIR PROCEEDINGS IN THE CORONER’S COURT: WILSON -v- HM SENIOR CORONER FOR BIRMINGHAM AND SOLIHULL

In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] ewhc 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner’s narrative verdict.

Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.”

THE CASE

The claimant was a consultant cardiothoracic surgeon. In the narrative verdict following the deaths of three patients the coroner stated:-

“An 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.”

THE APPLICATION FOR JUDICIAL REVIEW

    1. That part of the coroner’s conclusion flowed from evidence which had been admitted at the inquest in the teeth of opposition from the claimant. Mr Garnham QC, who appears before the court in these proceedings, but did not appear before the coroner, advanced three grounds in support of the contention that the sentence should be removed by quashing it from each of the narrative conclusions.

i) It was unfair to rely upon the evidence and reach the conclusion because the claimant was not given a meaningful opportunity to challenge it, in particular by exploring the underlying data which were said to support it;

ii) The coroner failed properly to explore the evidence relating to the conclusion;

iii) The conclusion of the coroner in this regard was irrational.

THE COURT’S CONCLUSION

Submissions

    1. Mr Garnham submits that the essential unfairness to Mr Wilson was that he was not given a proper opportunity to deal with the evidence of Dr Rosser which has resulted in a serious adverse finding against him. That finding has two components namely (a) a conclusion that data were mis-recorded; and (b) that had they been accurately recorded the consequence may have been that Mr Wilson would not have performed the operations on the three deceased. Mr Garnham submits that although not named in the sentence, the reference to a different surgeon is a clear contrast with him. He also submits that the use of the passive “an historic failure to record data” carries the implication that it was Mr Wilson himself who entered inaccurate data, rather than others. He relies upon dicta in Vogon International Limited v the Serious Fraud Office [2004] EWCA Civ 104and MRH Solicitors Ltd. v The County Court Sitting at Manchester [2015] EWHC 1795 (Admin) concerning findings of dishonesty made by judges against a party (Vogon) and solicitors for a party (MRH) when it had not been suggested, pleaded or put. Mr Garnham also submits that in the absence of a proper exploration at the inquest of the underlying data supporting the conclusions advanced by Dr Rosser in his evidence the coroner failed in her duty of investigation and, furthermore, could not rationally conclude as she did.

Discussion and Conclusions

    1. An inquest is the culmination of an investigation which must determine how, when and where the deceased came by his death: section 5 of the 2009 Act. As Sir Thomas Bingham noted in R v North Humberside Coroner, ex parte Jamieson [1995] QB 1, it is for the coroner fully, fairly and fearlessly to investigate deaths and it is for the coroner to set the bounds of the inquiry: see general conclusion 14. An inquest is an inquisitorial process and not comparable to a criminal trial or civil proceedings. Lord Lane CJ memorably stated in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625, DC:

“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”

    1. Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.

    2. Vogon is authority for the proposition that in civil proceedings a judge should not find that a claimant had pursued a dishonest claim when such a suggestion had not be made in the course of those proceedings or put to any witness. At paragraph 29 May LJ said:

“It is elementary common fairness that neither parties to litigation, their counsel, nor judges, should make serious imputations or findings in any litigation when the persons against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves.”

  1. MRH concerned allegations of dishonesty made against the claimant’s solicitors and others involved following a road traffic accident which the judge concluded was “staged”. The defendant, whilst pleading that the accident was staged and the claims were fraudulent, had pleaded expressly that it was not his case that the solicitors, or claims management or hire companies, were participants in the fraud. The judge encouraged the defendant’s counsel in the course of the hearing to allege dishonesty against the solicitors and others. That invitation was declined. Dishonesty was thus never suggested in the course of evidence or argument. The judge nonetheless made findings of dishonesty against the solicitors and companies, which this court decided were impermissible.

  2. Both these cases are far removed from the circumstances surrounding the evidence foreshadowed in paragraphs 33 and 34 of Dr Rosser’s statement. I shall endeavour to explain why.

  3. The starting point is that Mr Wilson was aware of the suggestion by the Trust that his data relating to angina and pulmonary hypertension had been inaccurately recorded, although we are told that he received evidential material relating to it only very shortly before the inquests began. The evidence relating to it had been provided to the GMC by Dr Rosser and served upon Mr Wilson, with detail of the underlying analysis albeit without the medical records of the 80 or more patients whose records had been examined. Overshadowing all of the consideration of the issue at the inquest was the fact that the GMC was seized of a complaint relating to that very issue. Indeed, it is clear that the aim of Mr Wilson and his advisers, as the written submissions from which I have quoted make plain, was to keep this issue out of the inquest and reserve it to the GMC. Mr Wilson was not entirely taken by surprise when the matter emerged in Dr Rosser’s statement for the inquest.

  4. I readily accept that material provided to Mr Wilson in the GMC proceedings could not be used for a different purpose without authority. The status of Dr Sims’ report, which the transcript suggests had also come to Mr Wilson through the GMC, did not prevent its use in the inquests. As I have already indicated, there were mechanisms that would have enabled the additional material attached to Dr Rosser’s statement to the GMC to be deployed by Mr Wilson had he wished to do so. He did not wish to do that for reasons which are entirely understandable, but he cannot complain about any consequential disadvantage that flowed in the inquest proceedings. In the exchange quoted at paragraph 18 above, the coroner sought to understand whether Mr Wilson disputed the evidence relating to angina and pulmonary hypertension. Beyond being told Mr Wilson had a view about it, which was not explained, the opportunity to engage with the evidence was not taken up. The observation made by counsel that someone should have put Dr Rosser’s paragraphs 33 and 34 to Mr Wilson whilst he gave evidence about the individual patients suggests an approach akin to civil or criminal proceedings which was not in keeping with the inquisitorial nature of the inquests and the status of interested persons (not parties). I read the coroner’s intervention at this point as amounting to an invitation to Mr Wilson to explain his position regarding this evidence.

  5. The written submissions suggested that counsel might explain Mr Wilson’s reservations about the analysis which underpinned paragraphs 33 and 34 of Dr Rosser’s statement, but that did not happen. The same written submissions canvassed the possibility of questioning Dr Rosser further on the topic but that too was not pursued. That Mr Wilson might give evidence on the topic, being recalled for the purpose, was mentioned but effectively discounted on his behalf.

  6. The expanded answer given by Dr Rosser on the substance of the analyses suggested that only one in twenty patients noted as receiving drugs for unstable angina was confirmed by the prescription records. 78 patients were labelled as having pulmonary hypertension when the records suggested the true number was 16. Furthermore, there was the improbable fact that a large number of those so labelled had the same score, namely 65. In respect of both measures, the inaccurate data were far removed from the average expected. There is every reason to suppose that Mr Wilson could have explained, if it be the case, that the figure of only one in twenty confirmed by the computerised prescription records was wrong. So too the apparent substantial over-reporting of pulmonary hypertension and the coincidence of so many recordings at 65. For the purpose of dealing with these stark inconsistencies, the medical details of the patients were unnecessary. It was explicitly stated in the written submissions that Mr Wilson had serious reservations about the figures. The submissions indicated that an explanation would be provided but that did not happen.

  7. In these circumstances I am unable to accept the submission made on behalf of Mr Wilson that he did not have adequate notice of the point or have an opportunity to deal with it before the coroner came to her narrative verdict. In reaching that conclusion I also reject the submission that the only way which the matter could be dealt with fairly, alternatively adequately (which I use as shorthand for the second way in which Mr Garnham advances the point), was to explore the individual medical records of the 81 or more patients and the prescription records. The coroner took the view that the purpose of exploring this aspect of the evidence was to determine whether an alert would have been triggered and that it was unnecessary to delve into the detail of the individual records (even had they been available). As Jamieson confirmed, it is for the coroner to determine the scope of the inquest. This decision was taken by the coroner in a context, it should not be forgotten, where Mr Wilson was aware of the issue and could have engaged with it. In my judgment there was no public law error in her approach.

  8. Furthermore, whilst I accept that the impugned sentence clearly pointed to Mr Wilson as the surgeon who may not have operated on the three deceased patients had the “flag gone up”, the coroner was careful not to identify him as the person who recorded the inaccurate data. That was consistent with the original oral evidence of Dr Rosser, who also did not identify Mr Wilson as the source of the inaccurate data, albeit that his expanded explanation did so.

  9. On the evidence before her, the coroner was entitled to come to the conclusion she did. It cannot be described as irrational.

  10. Informing each of the three grounds advanced on behalf of Mr Wilson are two complaints about Dr Rosser. First, it is said that he was not independent because he reported the concerns about inaccurate data to the GMC and was involved in the process that led to Mr Wilson’s dismissal. Secondly, he was not expert in the matters which were the subject of analyses in question. Both propositions are correct but do not lead to the suggested conclusion that his evidence of this issue should have been discounted by the coroner. The first might go to the question whether to accept the evidence, were their any suggestion that it was unreliable because of some animus, conscious or unconscious against Mr Wilson. The transcript does not support such a suggestion. The second raises the point that this part of Dr Rosser’s evidence was hearsay. That might lead to some caution in accepting it but, as I have already indicated, no basis for questioning the underlying analyses of the raw data was ever given by or on behalf of Mr Wilson.

  11. I would dismiss this claim for judicial review.

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