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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 2343 (Admin)
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KING'S BENCH DIVISION
In the matter of an application under section 13 of Coroners Act 1988
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GARNHAM
| LESLEY ANN DAVISON
|- and -
|HM SENIOR CORONER FOR HERTFORDSHIRE
|- and -
|HERTFORDSHIRE PARTNERSHIP UNIVERSITY NHS FOUNDATION TRUST
Bridget Dolan KC (instructed by Hertfordshire Local Authority) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 17 May 2022
Crown Copyright ©
Lord Justice Holroyde and Mr Justice Garnham:
Summary of key facts:
" had suffered for many years from type 1 diabetes and an eating disorder with bulimic patterns known as diabulimia."
" it seems from the information that I provided that despite this being a rare condition, and one that is only starting to be understood, I do note and it's from a BBC report that a spokesman for NHS England, in fact the National Clinical Director for the Mental Health Team, told the BBC as recently towards September of last year that people are waking up to this condition [inaudible] involved in producing guidelines on eating disorders and debated a whole section on how you manage people who have got diabetes and an eating disorder. We are now disseminating that around the country. We have been asleep no doubt but we are waking up."
The new evidence:
i) About 400,000 persons in the UK have Type 1 diabetes, and the incidence of the condition is increasing. Management of the condition includes the daily injection of insulin. Omission of insulin, whatever the reason, causes weight loss. It also activates ketosis, which can lead to ketoacidosis, with risk of death.
ii) Diabulimia is a psychiatric condition which causes sufferers to omit some or all of their insulin because of a fear that taking the insulin will cause an increase in weight. The condition is also referred to as T1DE: Type 1 diabetes with disordered eating.
iii) An estimated one-third of those with Type 1 diabetes omit some insulin for fear of weight gain. Diabulimia is therefore not a rare condition. Around 5-10% of those who omit some insulin are severe cases who would likely meet the criteria for diagnosis of an eating disorder. The more severe cases present most commonly with recurrent diabetic ketoacidosis. Those with severe diabulimia "are at very high risk of acute and chronic diabetes complications and premature mortality".
iv) Healthcare professionals do not routinely screen for diabulimia or directly question patients as to whether they are omitting insulin.
v) Diabulimia and clinical depression often co-occur. It is therefore appropriate to integrate medical and psychiatric treatment. However, there is still a lack of awareness that those with Type 1 diabetes who also have mental health problems find it more difficult to manage their diabetes; and the differing health systems involved in caring for someone with multiple morbidities can lack knowledge of, and confidence in, one another. There is no pathway of care for diabulimia.
vi) The mortality rate for diabulimia is unacceptably high.
The legal framework:
"13 Order to hold investigation.
(1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner ("the coroner concerned") either
(a) that he refuses or neglects to hold an inquest or an investigation which ought to be held; or
(b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may be, another investigation) should be held.
(2) The High Court may
(a) order an investigation under Part 1 of the Coroners and Justice Act 2009 to be held into the death either
(i) by the coroner concerned; or
(ii) by a senior coroner, area coroner or assistant coroner in the same coroner area;
(b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and
(c) where an inquest has been held, quash any investigation on, or determination or finding made at that inquest."
"Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest ."
"The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed."
"5 Matters to be ascertained
(1) The purpose of an investigation under this Part into a person's death is to ascertain
(a) who the deceased was;
(b) how when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than
(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable;
(b) the particulars mentioned in subsection (1)(c).
This is subject to paragraph 7 of Schedule 5."
(a) a senior coroner has been conducting an investigation under this Part into a person's death,
(b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner must report the matter to a person who the coroner believes may have power to take such action.
(2) A person to whom a senior coroner makes a report under this paragraph must give the senior coroner a written response to it.
(3) A copy of a report under this paragraph, and of the response to it, must be sent to the Chief Coroner."
"23. Written evidence
(1) Written evidence as to who the deceased was and how, when and where the deceased came by his or her death is not admissible unless the coroner is satisfied that
(a) it is not possible for the maker of the written evidence to give evidence at the inquest hearing at all, or within a reasonable time;
(b) there is a good and sufficient reason why the maker of the written evidence should not attend the inquest hearing;
(c) there is a good and sufficient reason to believe that the maker of the written evidence will not attend the inquest hearing; or
(d) the written evidence (including evidence in admission form) is unlikely to be disputed.
(2) Before admitting such written evidence the coroner must announce at the inquest hearing
(a) what the nature of the written evidence to be admitted is;
(b) the full name of the maker of the written evidence to be admitted in evidence;
(c) that any interested person may object to the admission of any such written evidence; and
(d) that any interested person is entitled to see a copy of any written evidence if he or she so wishes.
(4) a coroner may direct that all or parts only of any written evidence submitted under this rule may be read aloud at the inquest hearing."
"Where, as in this case, a coroner sets out with the intention of dealing with the inquest by reading the statements, it is equally important to explain to all concerned, in advance, exactly what that will mean. The coroner should indicate which statements and documents are likely to be read or summarised at the public hearing, and which parts (if any) of the statements or documents are not to be read."
The grounds of the application:
i) Prof. Ismail's report is important new evidence, enabling the circumstances of Megan's death to be explored more fully than it was at the inquest. At a fresh inquest, the coroner would be invited also to call oral evidence from Ms Harris and other members of the CEDS team, so that both the care given to Megan, and the systemic issues raised by Prof. Ismail, could be explored.
ii) It is at least possible that a fresh inquest would lead to a PFD report, in particular because of the systemic issues raised by Prof. Ismail. That may be of public importance, because diabulimia is a highly dangerous but poorly understood disorder, with a high mortality rate and many preventable deaths.
iii) In the light of Prof. Ismail's report, it is at least possible that a fresh inquest may lead to the medical cause(s) of Megan's death being recorded in different terms.
iv) Prof. Ismail refers in her report to the substantial public interest in more being known about the dangers of diabulimia.
v) Mrs Davison and her family want a fresh investigation so that they can fully understand how Megan met her death, and so that lessons can be learned with a view to preventing others dying in similar circumstances.
vi) The Coroner failed to comply with r.23(2)(c). Had he done so, Mrs Davison and her family would have asked for Ms Harris to give oral evidence so that important questions could be raised with her. This was a significant error by the Coroner, and an "irregularity of proceedings" within s.13(1)(b).
vii) The Coroner concluded that nothing in the evidence made it likely that any act or omission by the mental health services had caused or contributed to Megan's death. That was not a conclusion which was open to him without having at least questioned Ms Harris and other members of the CEDS team. Nor should he have declined to make a PFD report on the basis of a BBC news website item, without having called evidence from an appropriate person within the NHS. In these respects, there was an "insufficiency of inquiry" within s13(1)(b).
viii) In the light of Prof. Ismail's report, it is at least possible that a fresh inquest may lead to a different and fuller narrative conclusion than was stated by the Coroner.
ix) A fresh investigation is necessary to comply with the duty under article 2 of the Convention to conduct an effective investigation into Megan's death.
i) The Coroner proceeded under s.5 of the 2009 Act, and was not under the duty to consider wider matters which would have arisen if he had conducted an article 2 inquiry. At the time of the inquest, there was no suggestion by anybody that article 2 was engaged.
ii) The Coroner accepts he was in error in failing to comply with r.23(2)(c), but it is for the court to determine whether it was a material error: it is submitted that an objection by an interested person would be a factor for the Coroner to consider, but would not necessarily compel him to receive oral evidence.
iii) It is submitted that the Coroner was not under a duty to take proactive steps to seek out additional evidence which might give rise to a duty to make a PFD report.
iv) It is for the court to decide whether a fresh inquest is necessary or desirable in the interests of justice, in circumstances where after the initial inquest an expert witness suggests there should have been a wider inquiry than was carried out.
v) It is submitted that nothing in Prof. Ismail's report gives rise to any realistic prospect of a finding that Megan's death was caused by neglect. Megan had capacity, and could not be detained under the Mental Health Act. She was therefore able to discharge herself from medical care.
Submissions as to costs:
"Where, however, there is no link between the control and the type of harm, to impose an operational duty to protect against that risk would be to divorce the duty from its underlying justification as one linked to state responsibility. It would also undermine the requirement identified in Osman 29 EHRR 245 that the positive obligations inherent in article 2 should not be interpreted so as to impose a disproportionate burden on a state's authorities."
" (1) the established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings; (2) the established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event; (3) if, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application; (4) there are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (3) above, so that a successful applicant who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner, or other inferior tribunal, has gone wrong in law, and where there is no other very obvious candidate available to pay his costs."