R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin)

June 15, 2020

By Sara Sutherland

On the 28th March 2017 Leah Smith was admitted to hospital after collapsing following the sudden onset of delusions. There was no medical cause identified and she was discharged into the care of the Interested party’s home treatment team. Leah was seen and assessed by a social worker and she was attended by members of the home treatment team daily or less as agreed with family members.  Although Leah’s care was discussed with psychiatrists over the forthcoming weeks, there was no face to face appointment until the 25th April 2017 when she underwent an in depth face to face assessment, a working diagnosis was established and a treatment plan was put in place.  Sadly, on the 28th April 2017 Leah hung herself and she died on the 2nd May 2017.

Following Leah’s death the Health Board carried out a Serious incident review, in which care and service delivery problems were identified, including an absence of medical review, over cautious use of anti-psychotic medication and non-prescription of anti-depressants until the 25th April.  It was concluded that at that time there had been inadequate medical cover for home treatment patients in West Wales.  Following the SIR, the interested party removed the risk of these care and service delivery problems occurring again with the recruitment of appropriate medical cover.

At a pre inquest review, it was determined that Article 2 was engaged, a jury was not required and the Coroner instructed an independent Psychiatrist to prepare a report addressing the care provided to Leah.  Dr Maganty, the Psychiatrist instructed by the Coroner, prepared a report in which he criticised the medical care provided to Leah in the period before her death. He criticised the lack of a face to face consultation, he noted that Leah had not received a formal diagnosis for the cause(s) of her psychosis and he proposed that “a diagnosis of a psychotic depression” should have been made. He concluded that had Leah received the appropriate treatment, she would have fallen into the 99% of patients who would recover.

Dr Maganty gave evidence during the inquest and made a series of concessions:-

  • There was an inevitable degree of ‘hindsight bias’ in the preparation of his report.
  • While face to face examination was a big advantage, there was nothing to suggest that a face-to-face consultation at the outset should or probably would have resulted in different diagnosis or prescription of medication from that which was actually provided on the basis of the observations of the Home Treatment Team (who were seeing Leah every day).
  • He was unable to say what the diagnosis was, because he had not seen Leah.
  • When asked by the Coroner how he had been able to conclude in his Report “The death of Miss Leah Smith was not only predictable but entirely preventable”. His answer was “it’s entirely a treatable condition that she had, whatever the condition may be… So if you can treat that illness and illness is causing the death, then you can prevent the death”.
  • He suggested that that 99% of patients do not go on to kill themselves but when asked where he had got those statistics from, he failed to identify his source Crucially, he did not identify how it was that Leah came to fall within that statistic.

The Court heard evidence from the Psychiatrist who had seen and treated Leah 3 days before her final suicide attempt. He recognised that there was always a risk of suicide but he explained that he had carried out a detailed assessment with Leah, he had taken many pages of notes and he had concluded that the risk could be managed by the home treatment team.

At the close of the evidence the Coroner gave detailed reasons and completed and delivered her Record of Inquest (“the Record”) which was in the standard, brief, form required by sections 5 and 10 of the Coroners and Justice Act 2009 and Form 2 of the Schedule to the Coroners (Inquests) Rules 2013/1616.  It was said in Part 3 that:-

“On 28/4/17 the deceased was found hanging by the neck from a bannister at her home address. She was taken to hospital where she was placed on life support. Tests revealed no brain activity was evident and she sadly died on 2/5/17. The deceased had a short history of mental health issues with an attempted overdose a week prior to her death. She was receiving antipsychotic medication and was under the care of the Mental Health Services at the time of her death.”

In part 4 she concluded that:-

“The deceased hung herself with a ligature on 28//17. This act caused her death. At the time she took this action it is likely that she was suffering from an episode of psychosis of unknown origin.”

This decision was appealed on the following grounds:-

  1. That the decision erred in law as to the threshold for causation of death.
  2. That the decision erred in law as to the standard of proof for causation of death.
  3. That the decision was irrational in its failure to accept the evidence of an expert, Dr Maganty, about causation of death.
  4. That the decision and Record of Inquest were not compliant with the requirements of an investigation under Article 2 of the European Convention on Human Rights.
  5. That the decision was irrational in failing to make a finding of neglect

Grounds 1 and 2 were considered together by the appeal court.  The Court referred to the case of in R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] 4 WLR 157 per Sir Brian Leveson P and Kerr J at para 41:-

“…the threshold for causation of death is not the same thing as the standard of proof required to prove causation of death. In cases such as this, the latter is proof on the balance of probabilities. It is agreed that the threshold that must be reached for causation of death to be established, is that the event or conduct said to have caused the death must have “more than minimally, negligibly or trivially contributed to the death” (see e.g. R. (Dawson) v. HM Coroner for East Riding and Kingston upon Hull Coroners District [2001] Inquest LR 233, [2001] EWHC Admin 352 , per Jackson J at paragraphs 65-67). Putting these two concepts together, the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.”

The Claimant relied on parts of the Coroner’s reasoning where she had used the word ‘certainty’, for example, during the course of one discussion, she had said that ‘there is no certainty in this case’.  The Claimant averred that use of the word ‘certain’ suggested that the threshold the Coroner was using was too high, rather she should have asked herself if the failings in Leah’s care; ‘more than minimally, negligibly or trivially contributed to her death.’  The appeal court found that these words should not be considered in isolation when assessing the Coroner’s reasoning and in particular she had said; “I am not satisfied on the balance of probabilities that if all of these things had happened, when they should have happened, that it could be said it was more likely than not that Leah’s death on 2 May could have been prevented.’

The Divisional Court said that; ‘it is not in our view fair or correct to pick out isolated phrases in this way. Taken as a whole, the Reasons show that, after these initial phrases, which formed part of a relatively general and reflective discussion of the evidence, the Coroner quickly settled on correct formulations of the question she had to answer as a matter of law, before she answered it.

The next issue was the use of statistics and in particular Dr Maganty’s contention that Leah would have fallen in the 99% of those who do not kill themselves.  The Divisional Court referred to R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin). The review in Chidlow includes the observation of Croom-Johnson LJ in Hotson v East Berkshire Area Health Authority [1987] 1 AC 750 at 769B “To be a figure in a statistic does not by itself give him a cause of action.” It also quotes Clerk & Lindsell on Torts (22nd edition, 2017) at paragraph 2-30, saying: “Care has to be exercised when relying on statistics as a means of establishing causation. The court must look at the claimant’s individual circumstances rather than at the general statistics.”  The Divisional Court considered that Dr Maganty’s use of statistics was couched in very general terms, which made it particularly difficult to use them confidently in Leah’s case, when deciding the Tainton question, in her particular case, of “whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.”

As for the 3rd ground of appeal and whether a Court is bound to accept the opinion of an expert, this was dismissed with the Divisional Court confirming that; an inquest is, as the name suggests, an inquisitorial process. The Coroner was not bound to accept the evidence of Dr Maganty, even if it stood alone. In fact, it did not stand alone. It was given before the evidence of the treating psychiatrists had been given, which undermined some of Dr Maganty’s assumptions (such as that if Dr Mehr had been consulted initially, he would have prescribed olanzapine rather than risperidone, whereas Dr Mehr’s subsequent evidence was that “everybody” would have started with risperidone in a case, at Leah’s age, of first-episode psychosis).

It was then argued by the Claimant that the criticisms accepted by the Coroner in her Reasons ought to have been included in the Record of inquest.  The Claimant drew support from the case of Tainton setting out that without the inclusion of admitted failings, the Record of Inquest was “materially incomplete and verging on misleading by omission” and therefore insufficient to satisfy Article 2.  The Claimant continued that as the Guidance No. 17 Conclusions: Short-Form and Narrative recognises, the role of a coroner’s judgment is to set out the findings and reasoning and this will then culminate in the conclusions expressed on the ROI, the Coroner should have included these admitted failings.

The Divisional Court disagreed; both the Reasons and the Record were delivered in public and so both, were part of the public record.  It was said that the Claimant’s argument had the appearance of an argument of form over substance.

The principles to be adopted are therefore:-

  1. The Court is not bound by its own medico legal evidence.
  2. Where inquests are heard with a Jury any admitted non causative failings should be included within the ROI (the jury not being able to provide detailed reasons elsewhere).
  3. Where inquests are concluded by a Coroner sitting alone, there is no requirement to include any admitted failings within the ROI providing they have been dealt with in the Reasons (something juries are not required to produce).
  4. The appropriate vehicle for conveying lessons learned is not the Conclusion, narrative or otherwise, but a rule 43 report.

It is with interest that we wait to see whether the Claimant will be given permission to appeal to the Court of Appeal.

Sara Sutherland was instructed on behalf of the interested party.