R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 1501 (Admin), [2018] All ER (D) 78 (Jun) is likely to be the leading case regarding Coroners' inquests into UK medical deaths for the foreseeable future, and clearly sets out circumstances in which Article 2 of the European Convention on Human Rights (ECHR) will apply in such cases requiring a broader scope for the inquest.
What are the practical implications of this case?
In relation to the application of Article 2 ECHR (right to life) to medical deaths, this judgment is likely to be the go-to case for the foreseeable future for its clear explanation of all of the principles within a single, easy-to-read section. In addition, the court helpfully emphasised that care should be taken to ensure that allegations of individual negligence are not 'dressed up as systemic failures', and that the best person to decide whether Article 2 is engaged is the coroner who conducts the inquest.
Counsel Stephen Brassington, instructed by Clyde & Co Healthcare, obtained an order that the claimant pay the NHS Trust's costs in full. The coroner and doctor were also awarded their costs. This may deter future applications for judicial review where there is little basis for the claims of irrationality.
This judgment should not affect the ability of families to obtain legal aid funding for representation at medical inquests. Although caseworkers have the ability to waive the financial means test where a full Article 2 ECHR inquest is required, the test remains the same, and an arguably true systemic failing (rather than individual error or negligent co-ordination) will still trigger Article 2.
What was the background to this case?
This application for judicial review concerned the conclusion of an inquest conducted by the Senior Coroner for Kent, Mr Hatch, into death of Kathleen Parkinson. Clyde & Co Healthcare represented the NHS Trust. Mrs Parkinson, who was 91 years old, collapsed at home after suffering with a chest infection. She was taken to the hospital by ambulance to Darent Valley Hospital on 9 January 2011. When Mrs Parkinson reached the A&E department, Dr Hijazi came to examine her. Her son (the claimant) did not accept that she was dying and attempted to resuscitate her. The Senior Coroner concluded that Mrs Parkinson had died of natural causes, and that the treatment provided by the hospital was appropriate. He found that the claimant had been obstructive and made threats towards the doctor while in A&E, which prevented a full examination taking place.
The claimant challenged the Senior Coroner's decisions on five grounds, including that the Senior Coroner had erred in deciding that the enhanced investigative duty under Article 2 ECHR did not apply, and that the medical cause of death was irrational.
In relation to Article 2, the claimant asserted that there was arguably a 'systemic failure' on the part of the NHS Trust, because it was not clear whether the patient at risk (PAR) scoring system which was used to identify deteriorating patients applied to the A&E department (a high score results in a medical emergency team being called to attend). In addition, it was not clear how the PAR score interacted with the Manchester triage system (MTS), which was used to prioritise the order in which patients were examined. The claimant alleged that the high PAR score meant that the medical emergency team should have been called to attend in A&E. The NHS Trust refuted this on the basis that A&E is fully able to deal with medical emergencies.
What did the court decide?
On 15 June 2018 in the Royal Courts of Justice, the judicial review was heard by Lord Justice Singh, Mr Justice Foskett J and His Honour Judge Lucraft QC (the Chief Coroner) sitting as a judge of the High Court.
The court held that the coroner was perfectly entitled to decide that that no systemic issue arose and Article 2 ECHR did not apply. In considering the evidence given by NHS staff at the inquest, the court held that 'it was perfectly clear from the evidence given before the Senior Coroner that the relevant staff did understand how the MTS should work', that the PAR system was separate and that staff had received appropriate training.
However, the court went further by clearly summarising the relevant principles on Article 2 as they apply to medical cases. The decision of the Grand Chamber of the European Court of Human Rights in Lopes de Sousa Fernandes v Portugal App 56080/13, (2017) 66 EHRR 1011, was followed, where the state has made adequate provision for securing high professional standards among health professional and protection of the lives of patients, matters such as errors of judgment, or negligent co-ordination in the treatment of a patient are not sufficient to call the state to account under Article 2.
There may be exceptional cases which go beyond mere medical negligence, in which medical staff fail to provide emergency medical treatment despite being fully aware that a person's life would be put at risk if that treatment is not given. In such a case, the failure results from a dysfunction of the hospital's services, a structural issue linked to the deficiencies in the regulatory framework. The European case law for this exception stems from a refusal to treat patients in hospital, or inadequate resources and equipment. The domestic court confirmed that 'the crucial distinction is a "systemic failure" in contrast to an "ordinary" case of medical negligence.'
The claimant had alleged that the coroner was irrational in not issuing a prevention of future death (PFD) report. The court dismissed this after hearing from Samantha Leek QC on behalf of the coroner.
The court also held that the coroner's conclusions as to the cause of death were not perverse. There was conflicting expert evidence from a number of pathologists, and it was reasonable for the coroner to prefer that of Professor Sheppard. The coroner had recorded that the 'death was probably the result of bronchopneumonia combined possibly with thrombi', and the claimant objected to the 'possible' cause being included.
The court concluded that the requirement to record the likely cause of death had been met, and there was nothing objectionable in also recording the potential cause which had been explored in evidence (although noted that it may be surplus to requirements).
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