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||Neutral Citation Number:  EWHC 386 (Admin)
||Case No: CO/3696/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||27 February 2013
B e f o r e :
THE HON MR JUSTICE BURNETT
HIS HONOUR JUDGE PETER THORNTON QC, CHIEF CORONER
|| THE QUEEN (on the application of MRS GABRIELE SHAW)
||- and -
||(1) HM CORONER AND (2) ASSISTANT DEPUTY CORONER FOR LEICESTER CITY AND SOUTH LEICESTERSHIRE
||- and -
||UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST, DRS: KOVAC, WEST, JILAIHAWI, WILLIAMS, CHIN, PROFESSOR SPYT
The Claimant in person
Andrew Sharland (instructed by Leicester City Council) for the Defendants
David Pittaway QC (instructed by Browne Jacobson LLP) for the Trust
Anthony Haycroft (instructed by Berrymans Lace Mawer) for the Interested Parties
Hearing dates: 21 – 22 January 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon Mr Justice Burnett :
- William Ewan died shortly after 12.00 on 26 September 2007 at Glenfield Hospital, Leicester. He was 86 years old. Earlier in 2007 Mr Ewan had been diagnosed with a defective heart valve. He suffered from aortic valve stenosis. That is a progressive disease which if left untreated leads to death. Treatment may be by open heart surgery but that carries risks, particularly for the elderly. An alternative treatment was undertaken in Mr Ewan's case. It was relatively new in 2007. It is known as TAVI (an acronym for trans aortic valve implantation). The procedure involves placing a working artificial valve within the defective valve. The new valve is introduced via a catheter into the femoral artery.
- Glenfield Hospital was a site at which the new procedure was subject to a trial in early 2007. Although some time was taken at pre-inquest reviews in exploring whether Mr Ewan was part of the trial, it became clear that he was not.
- Mr Ewan was a resident of Cheshire. His cardiologist, Dr Fitzpatrick, referred him to Glenfield. He was seen by Dr Kovac on 12 June 2007 and then for an angiogram on 28 June 2007. On 25 September 2007 Mr Ewan was admitted for the TAVI procedure, which took place the following morning. The procedure was performed under general anaesthetic. Shortly after the new valve had been introduced into the defective heart valve, Mr Ewan began to bleed from his aorta. The bleeding was visible on echo cardiogram. Immediate efforts to deal with the problem were unsuccessful. It was therefore decided to open Mr Ewan's chest to determine the source of bleeding and to stop it. The evidence heard at the inquest suggested that the blood flow was arrested, the chest was closed, drains were inserted and Mr Ewan was transferred to the cardiac intensive care unit. Very shortly after he arrived there, he died.
- An inquest into Mr Ewan's death was held between 4 and 21 January 2011 before Nigel Godsmark QC, sitting as an assistant deputy coroner for Leicester City and South Leicestershire, together with a jury. The assistant deputy coroner summed up on 20 January. The jury were invited to consider a series of nearly 50 questions relating to the circumstances of the death. They answered those questions thus providing a narrative verdict. Those questions included who the diseased was, when and where he died. A series of questions dealt with Mr Ewan's underlying condition and his dealings with his cardiologist in Cheshire. Further questions dealt with Mr Ewan's dealings with Dr Kovac at Glenfield Hospital, and then his dealings with Dr Jilaihawi. The questions covered detail about the nature of the information given to Mr Ewan and, in particular, the issue of consent. Further questions dealt with what occurred at the operation and the circumstances giving rise to the bleeding and attempts to stop it. The jury were unable to determine what caused the damage to the aorta which resulted in bleeding. The jury concluded that the medical cause of death was:
"I a Heart failure following cardiac tamponade complicating percutaneous aortic valve replacement.
II Coronary atherosclerosis"
The jury's overall conclusion was that Mr Ewan's death was the "unintended outcome of a therapeutic medical procedure". They concluded that he was suitable for the TAVI procedure, that he was aware of the nature of the procedure and gave his consent.
- The Claimant in these proceedings, Gabriele Shaw, is a daughter of William Ewan. She is a barrister by qualification but does not practice. She has acted in person throughout the proceedings. By her claim for judicial review, she seeks to quash the inquisition on a number of grounds and secure an order for a fresh inquest. In the course of her submissions she was at pains to explain that the court should understand the nature of her concerns whilst forgiving her if she did not pin them precisely to public law concepts. Mrs Shaw confirmed that the skeleton argument served in support of the claim articulated the substance of her concerns. The original 'grounds' contained nothing of substance. Lengthy amended grounds were served in October 2011. Mrs Shaw also responded at length to the pleadings served by the Defendants and interested parties. The nature of her complaint concerning the inquest itself and events leading to it might be summarised under the following headings:
1. Delay in the conduct of the inquest;
2. The unlawful appointment of Mr Godsmark QC;
3. The unlawful post-mortem examination;
4. Bias on the basis that the assistant deputy coroner should have recused himself because of his friendship with Peter Reading, a former Chief Executive Officer of the NHS Trust of which the Glenfield Hospital forms part;
5. The failure to adduce evidence and documents relating to the approval of the trial at Glenfield Hospital of the TAVI procedure, and in particular documents emanating from the Ethics Committee;
6. The inquest was defective because the jury should have concluded that Mr Ewan was not fit for the TAVI procedure at all; a witness called by the coroner, namely Dr Mullen, lacked independence. His evidence on this point was questionable and the jury's conclusion, namely that Mr Ewan was a suitable candidate for the TAVI procedure was flawed;
7. The coroner should have read the evidence of Dr Tapp, a pathologist instructed on behalf of the family because his evidence was different from that of Dr Bouch, the pathologist instructed by the Coroner. Dr Bouch lacked independence;
8. The coroner should have called Ms Durbridge who was responsible on behalf of the Trust for implementing recommendations arising from an independent report commissioned by the Trust ("the Niche Report") with a view to making a report under rule 43 of the Coroners Rules 1984 ["the 1984 Rules"];
9. In overall terms, there was an inadequate investigation into the death of Mr Ewan both in domestic law terms and under article 2 of the European Convention on Human Rights (although this was couched in terms that the jury/assistant deputy coroner failed to take account of relevant matters and took account of irrelevant factors);
10. The coroner failed to direct the jury correctly on the question of consent but in any event no reasonable jury could have come to the conclusions it did on consent on the basis of the evidence available.
11. Unlawful killing and "neglect" should have been left to the jury as possible verdicts.
12. Mrs Mason, the coroner for Leicester City and South Leicestershire, should have provided the Claimant with information relating to other deaths at Glenfield Hospital of patients who had undergone the TAVI procedure.
No oral submissions were developed in respect of these last two points but they appear in the written material provided by the Claimant. I note that the last point is directed to requests that long post-dated the inquest.
- There was multiple representation at the inquest. The Claimant had instructed Messrs Leigh Day to represent her in connection with the inquest. Originally, her leading counsel was Robert Francis QC, who appeared at a number of pre-inquest reviews. He was succeeded by Neil Garnham QC, who appeared at the final pre-inquest review on 17 December 2010 and throughout the inquest itself. The manufacturers of the valve used in the procedure were represented by Dr Anthony Barton. David Pittaway QC appeared on behalf of the Trust at the inquest. The doctors involved in Mr Ewan's care at Glenfield Hospital were separately represented at the inquest. In these judicial review proceedings, Mrs Mason, the coroner for Leicester City and South Leicestershire and the assistant deputy coroner who conducted the inquest are represented by Andrew Sharland. Mr Pittaway QC continues to represent the Trust. Anthony Haycroft represents a number of doctors who had given evidence at the inquest. They are Dr Kevin West, consultant anaesthetist, Dr Hassan Jilaihawi, clinical fellow and specialist registrar in cardiology, and Dr Derek Chin.
The nature of the Inquest
- The inquest into the death of Mr Ewan was conducted as an "article 2" inquest. That is a reference to the procedural obligation under article 2 of the European Convention on Human Rights. An article 2 inquest stands, to some extent, in contra-distinction to an inquest conducted in accordance with the decision of the Court of Appeal in R v HM Coroner for North Humberside and Scunthorpe ex parte Jamieson  QB 1, without an eye to the procedural obligation. It is worth repeating observations of judges at the highest level that the difference between an article 2 inquest and a Jamieson inquest centres on the nature of the verdict. In R (Middleton) v West Somerset Coroner and another  2 AC 182 the House of Lords held that for the purposes of section 11(5)(b)(ii) of the Coroners Act 1988 ("1988 Act") and rule 36(1)(b) of the 1984 Rules, the obligation of the fact finder at an inquest to specify how the deceased came by his death should be interpreted as meaning not simply "by what means" but "by what means and in what circumstances" (see paragraph 35 of the considered opinion of the committee). Thus, in R (on the application of Smith) v Oxfordshire Assistant Deputy Coroner  1 AC 1 Lord Phillips of Matravers observed at para  of his judgment that:
"the only difference that the decision of the House in Middleton's case would have made to either the Jamieson inquest or the Middleton inquest would have been to the form of the verdict. In each case the coroner appears to have permitted exploration of the relevant circumstances despite the fact that he did not permit these to be reflected in the verdict. I question whether there is, in truth, any difference in practice between a Jamieson and a Middleton inquest, other than the verdict. If there is, counsel were not in a position to explain it."
Lord Brown of Eaton-under-Heywood made the same point at para .
- The requirements of an article 2 compliant inquest were authoritatively stated in paragraphs 105-109 of the judgment of the Strasbourg Court in Jordan v United Kingdom  37 EHRR 52 and have been reaffirmed on many occasions since. Mrs Shaw cited the more recent decision of the Grand Chamber in Ramsahai and others v the Netherlands  46 EHRR 983. Rather than setting out extensive extracts from the decisions of the Strasbourg Court it is sufficient to cite the distillation of the principles found in para 64 of Lord Phillips' judgment in Smith:
"The procedural obligation requires a state, of its own motion, to carry out an investigation into a death that has the following features: (i) It must have a sufficient element of public scrutiny of the investigation or its results. (ii) It must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death. (iii) The relatives of the deceased must be able to play an appropriate part in it. (iv) It must be prompt and effective. This means that it must perform its essential purposes. These are to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility. These features are derived from the Strasbourg jurisprudence, as analysed in the Middleton case and R (L(A Patient)) v. Secretary of State for Justice  AC 588."
- A large number of the complaints made by Mrs Shaw about the way in which the inquest was conducted go to the adequacy of the inquiry conducted by the assistant deputy coroner.
- Section 8(1) of the 1988 Act requires a coroner to hold an inquest as soon a practicable. We have seen that the procedural obligation under article 2 ECHR includes the requirement for a prompt investigation. Of course, the investigation for the purposes of article 2 includes the process of securing and collecting evidence as well as the formal part of an investigation reflected in a hearing. It is unclear to me what relief Mrs Shaw seeks were this ground to be established because her aim is to quash the inquisition and secure a fresh inquest. The bare chronology of events is this –
26 September 2007 Death of William Ewan
7 July 2008 1st pre-inquest review
15 June 2009 2nd pre-inquest review
20 October 2010 3rd pre-inquest review
November 2010 Inquest listed for hearing, but adjourned because of independent review being conducted on behalf of the Trust
17 December 2010 4th pre-inquest review
4 January 2011 Inquest commences
- It is apparent that there was a period of three and a quarter years between Mr Ewan's death and the inquest. In the experience of both members of this court a delay of this sort, whilst far from desirable, is not uncommon in connection with inquests which raise complex medical issues and involve a large number of witnesses and substantial documentation. The evidence of Mrs Mason explains that on her appointment as coroner in March 2009, there was a substantial backlog of cases needing her attention, the oldest stretching back to 2004. She read the file in Mr Ewan's case and arranged a pre-inquest review for June 2009. The coroner instigated further inquiries, disclosed the evidence and then fixed the inquest for November 2010. The coroner herself would not be available to hear it at that time. She arranged for Ms Casey to sit as assistant deputy coroner for the purpose of conducting the inquest. Ms Casey was a barrister who also sat as assistant deputy coroner for Nottingham. She is now a full time coroner. The timetable was interrupted by the Trust's decision to commission external investigators to investigate the death. That resulted in the Niche report. The coroner took the view that the report should be available before the inquest. It was hoped that the November 2010 listing would not be affected but delays in the production of the Niche report confounded that expectation. The report was produced in October 2010. It generated the need for additional witnesses to be called. Ms Casey conducted the third pre-inquest review on 20 October 2010. At that review Ms Casey fixed the inquest for 4 January – 21 January. The expectation was that she would conduct it. However, shortly after that review Ms Casey had to withdraw from the proceedings as a result of unforeseen circumstances. It was then that Mr Godsmark QC was asked, and agreed, to stand in as assistant deputy coroner. He was a silk with substantial medical law experience.
- In the context of a complex medical inquest which, in due course, occupied a jury for 13 working days, I am unable to accept that the delay which occurred was inappropriate, still less unlawful either in domestic law terms or in the context of article 2. It is apparent from the material placed before us that a substantial investigation was undertaken before the inquest was ready for hearing. As with any legal proceedings, hearings must be accommodated within the framework of available resources, including judicial resources.
- Furthermore, there is no effective relief which could be granted even if the contrary view were reached. Mr Sharland is right to observe the irony in a claim for delay being advanced in these judicial review proceedings, which was not mentioned in the claim form, itself lodged at the end of the three month period, and which first formally saw the light of day in amended grounds nine months after the conclusion of the inquest.
Unlawful appointment of Mr Godsmark QC/unlawful conduct of the Inquest because of availability of other coroners
- Mrs Shaw points to rule 4 of the 1984 Rules, which requires a coroner to be available at all times to perform his functions either himself or by his deputy or his assistant deputy. She submits that prior to the appointment of Mr Godsmark QC, not only was the coroner available to conduct the inquest into her father's death, but she had a deputy and an assistant deputy (maybe two) who could have done so. She does not accept Mrs Mason's explanation that she was part heard in a jury inquest and could not take over the scheduled inquest when Ms Casey dropped out of the picture. Mrs Shaw submits that Mrs Mason could have arranged for someone else to take that part heard inquest. Alternatively, the deputy or existing assistant deputy should have conducted her father's inquest. Therefore, Mrs Shaw submits that there was no warrant to appoint Mr Godsmark QC; and to do so breached rule 4.
- Mrs Mason makes clear in her witness statement that she, her deputy and assistant deputy were not available to conduct the inquest in January 2011. There is no reason to doubt that evidence. There is no lawful impediment to appointing an additional assistant deputy coroner in such circumstances. It is now relatively commonplace for ad hoc assistant deputy coroners to be appointed for the purposes of conducting long or difficult inquests. The inquests into the deaths of Diana, Princess of Wales and Dodi Al Fayed and into the deaths arising from the bombings in London of 7 July 2005 provide two striking examples. But there have been many more. Such a practice has been given repeated judicial approval: eg R (Collins) v. Inner South London Coroner  EWHC 2421 Admin; R (Sharman) v. Inner London North Coroner  EWCA 967 Civ.
- A deputy coroner may only act for a coroner (and an assistant deputy for a deputy) where the more senior is unavailable in the limited circumstances set out in section 7(1) and 7(3) of the 1988 Act which include during the [other's] absence for any reasonable cause. Deputy and assistant deputy coroners are invariably part time judicial office holders. They are reasonably absent when engaged on other matters. Furthermore, the word "absence" is to be given a wide meaning not to be restricted to physical absence: Commissioner of Police for the Metropolis v. Inner London South Coroner  2 All ER 585. If the coroner is occupied on other matters which reasonably detain her, including administrative matters connected with the general management of the jurisdiction, the deputy or an assistant deputy may stand in. Running a coronial jurisdiction involves a great deal more than conducting inquests. In my judgment, even if the coroner were not already tied up on other matters, the power to appoint an ad hoc assistant deputy coroner extends to a coroner absenting himself from a particular inquest because he reasonably concludes that it would be convenient for an assistant deputy to conduct it if its nature calls for particular skills or expertise.
- Mrs Shaw also points out that section 5 of the 1988 Act allows a coroner for another district within the same administrative area to hold inquests in all districts within the administrative area, albeit in strictly limited circumstances, including the unavoidable absence of the other coroner. That is as may be; but even if Mrs Mason might have asked for assistance from another coroner within the same administrative area, that hypothetical power does not bear upon the legality of appointing an assistant deputy coroner.
- There was nothing unlawful about the appointment of Mr Godsmark QC as an assistant deputy coroner for the purpose of conducting the inquest into the death of Mr Ewan. The evidence is that his appointment was made for the simple reason that the coroner and her existing part-time assistants were not available to preside at the inquest listed for hearing on 4 January 2011. In the absence of a sound argument relating to bias, there was nothing unlawful in Mr Godsmark QC conducting the inquest on the supposed basis that the coroner or another of her part time subordinates (or another coroner) could have done so.
The post-mortem examination
- The coroner in post at the time of Mr Ewan's death instructed Dr D C Bouch, a Consultant and Home Office Pathologist to perform the post-mortem examination. He did so on 1 October 2007. His report notes that the other people present at the examination were Dr Edmund Tapp, an independent consultant forensic pathologist instructed on behalf of Mr Ewan's family, and Professor Spyt, the consultant thoracic surgeon who had performed the emergency thoracotomy upon Mr Ewan. Dr Bouch noted that Professor Spyt "was able to advise on the procedure and technique used for percutaneous aortic valve replacement. Dr Tapp was in full agreement with Mr Spyt being in attendance". This last observation reflects the reality that neither Dr Bouch nor Dr Tapp had any experience of the TAVI procedure.
- Mrs Shaw submits that the post-mortem examination was unlawful, both in domestic law and for the purposes of the procedural obligation under article 2 ECHR, because Dr Bouch was not independent of the Trust and its doctors, as required by rule 6 of the 1984 Rules. That submission is based upon a mistaken view that Dr Bouch worked for the Trust. He did not, having retired from the NHS in 2004, and thus I say no more about it.
- Mrs Shaw further submits that the post-mortem examination was rendered unlawful because of the improper presence of Professor Spyt and because he 'interfered' in the examination contrary to the provisions of the 1984 Rules. Rules 7, 8 and 9 provide:
"7.- (1) Where a coroner directs or requests a legally qualified medical practitioner to make a post-mortem examination, the coroner shall notify the persons and bodies set out in paragraph (2) of the date, hour and place at which the examination will be made, unless it is impracticable to notify any such persons or bodies or to do so would cause the examination to be unduly delayed.
(2) The persons and bodies to be notified by the coroner are as follows –
(a) any relative of the deceased who has notified the coroner of his desire to attend, or be represented at, the post-mortem examination;
(b) the deceased's regular medical attendant;
(c) if the deceased died in a hospital, the hospital;
(d) if the death of the deceased may have been caused by any of the diseases or injuries within Rule 6(2) (other than occupational asthma), the pneumoconiosis medical panel for the are;
(e) if the death of the deceased may have been caused by any accident or disease notice of which is required by or under any enactment to be given –
(i) to an enforcing authority, the appropriate inspector appointed by, or representative of, that authority; or
(ii) to an inspector appointed by an enforcing authority, that inspector;
(f) any government department which has notified the coroner of its desire to be represented at the examination;
(g) if the chief officer of police has notified the coroner of his desire to be represented at the examination the chief officer of police.
(3) Any person or body mentioned in paragraph (2) shall be entitled to be represented at a post-mortem examination by a legally qualified medical practitioner, or if any such person is a legally qualified medical practitioner he shall be entitled to attend the examination in person; but the chief officer of police may be represented by a member of the police force of which he is chief officer.
(4) Nothing in the foregoing provisions of this Rule shall be deemed to limit the discretion of the coroner to notify any person of the date, hour and place at which a post-mortem examination will be made and to permit him to attend the examination.
8. A person attending a post-mortem examination by virtue of paragraph (3) or (4) of Rule 7 shall not interfere with the performance of the examination.
9. –(1) A pathologist shall make provision, so far as possible, for the preservation of material which in his opinion bears upon the cause of death or the identification of the deceased.
- Dr Tapp attended the post-mortem examination as the representative of the relatives of the deceased pursuant to rules 7(2)(a) and 7(3) . Rule 7(2)(c) required Glenfield Hospital to be notified of the time and place of the post-mortem examination and rule 7(3) allowed a representative to attend on their behalf. Rule 7(4) gave the coroner a broad discretion to allow anyone to attend the examination. This complaint about the presence of Professor Spyt was not raised by Mrs Shaw until she amended her grounds in October 2011. In those grounds she suggests that she met the then coroner on 26 September 2007 and that he did not tell her that any representative of the hospital wished to attend the inquest, and that had she known she would have objected. She might have objected, I infer, by making a statement on oath that she believed the death of her father was due to the negligence of one or more of the medical practitioners attending upon her father. In those circumstances, section 20(3) of the 1988 Act would preclude the personal presence of the impugned medical practitioner, but allows a representative to attend the examination. Mrs Shaw indicates that she and her father believed 'in their minds that the procedure undertaken … was risk free' (see Amended Grounds para 15). No such statement on oath was made in respect of those who performed the TAVI procedure, or Professor Spyt who was present during the procedure and intervened once the emergency had developed. There was no legal impediment to Professor Spyt's presence at the inquest. There is no evidence to suggest that he attended other than with the leave of the coroner, either as the representative of the hospital or under the general discretion afforded by rule 7(4). The hospital had asked for a representative to be present, and it was Professor Spyt who attended on their behalf.
- Mrs Shaw is correct to submit that a person attending pursuant to the provisions of rule 7 must not 'interfere' in the examination. So much is provided by rule 8. She founds her submission that Professor Spyt interfered in the examination by asserting that it was he, and not Dr Bouch, who removed the valve from her father's body. That submission is based upon an answer by Professor Spyt to a question from the assistant deputy coroner, and another from Mr Garnham QC. To understand the context of the questions it is important to note that an issue which was explored at some length in the evidence of both Dr Bouch and Professor Spyt (whose first language was not English) was what happened to the valve, after it was removed from Mr Ewan's body. It is unclear what happened to it. In short, Dr Bouch thought that he had given it to Professor Spyt, but Professor Spyt said that he had not retained it.
- Dr Bouch gave evidence on the first day of the inquest and was recalled on the tenth day. Professor Spyt gave evidence on the seventh day of the inquest and was also recalled on the tenth. On both days on which Dr Bouch gave evidence he was asked about who removed the valve. In various parts of this judgment I shall set out extracts from the transcripts 'warts and all', reproducing them as written. On the first day, in answer to a leading question from Mr Garnham QC, Dr Bouch confirmed he had removed the valve (Transcript B 64). He was then asked what happened to it and said:
"I would think it went to Professor Spyt, but I just don't remember."
When he was recalled on the tenth day Dr Bouch's evidence on the point is contained in these exchanges (Transcript K 119):
"It's more likely that I removed it, but I would ask for Professor Spyt's information as to whether or not it was in the right place, because I had never seen one before so I couldn't be sure.
Because you would be the person conducting the Post Mortem and you wouldn't want somebody else interfering with the way in which you conducted it?
Well I wouldn't have allowed that, but I needed their help, yes.
But the help you had was advice as to whether it was in the right place?
Yes, that's what I wanted to do."
- An exchange followed about what had happened to the valve. Dr Bouch said he did not know what had happened to it. He said his recollection was that Professor Spyt took it away, but that he may be wrong. He had no record of what happened to it.
- The material exchange between the assistant deputy coroner and Professor Spyt on the seventh day was this (Transcript H 34):
The CoreValve that was implanted into Mr Ewan, what happened to it? Where is it?
Professor Tomasz Jerzy Spyt
It should be …well, I certainly haven't … what Doctor Bouch alluded to that I have taken it out means I have taken it out of the place where it was. It is inconceivable that I could keep a piece of device in a patient who died and during a forensic post mortem. So, I have never been in a position, I would not be given it in the fist place.
So was it ever in your possession?
Professor Tomasz Jerzy Spyt
No, I wouldn't want it. I wouldn't want it. I have got the model of the valve, I have got the real valve which is used nowadays for educational purposes. I wouldn't want to take anything from Mr Ewan's body."
It is clear, in my view, that the context of these exchanges is the observation made by Dr Bouch on the first day that he thought that the valve had been taken away by Professor Spyt. He had not suggested that Professor Spyt had removed the valve from the body. Professor Spyt was cross-examined at length by Mr Garnham QC. He finished his questioning. At the completion of the questioning by another legal representative, Mr Garnham QC rose and said:
"I am very sorry, I missed one question and I will quickly put it. The Coroner asked you, doctor, about the post mortem. Can I just ask you whether you know what happened to the prosthetic valve?
Professor Tomasz Jerzy Spyt
I don't. I don't know. I have taken it out of where it was mounted, but I did not take it with me."
- Mrs Shaw contends that the reference to 'taken the valve out of where it was mounted' must be a reference to removing the valve from her late father's body. So there is at first blush evidence from Professor Spyt that he removed the valve which is inconsistent with that of Dr Bouch. The issue was not explored further by any party or the coroner. It is in the nature of legal proceedings that evidence is sometimes contradictory, incomplete or leaves some loose ends.
- It was never suggested to Professor Spyt, even when he was recalled, that he had 'interfered' with the examination. Interference would suggest something done without the authority of the pathologist. Reading the transcript certainly gives rise to some ambiguity on the question of who removed the valve from Mr Ewan's body. However, it is likely that those hearing the exchanges believed that they were directed towards the question of what happened to the valve, rather than who removed it from the body. Otherwise, one would have expected somebody to have pursued the point further. But there is, on any view, no evidence of interference within the meaning of rule 8. There is no evidence that Professor Spyt did anything other than at the request of Dr Bouch.
- Mrs Shaw's submission is that if there was behaviour at the post mortem examination which was proscribed by rule 8, the procedure became (in legal terms) invalid so that no reliance could be placed at the inquest on the evidence which came from it. The answer on that issue depends upon an intention to be imputed to Parliament of what the consequences of a breach of rule 8 should be: see R v. Soneji  1 AC 340. The statutory provisions governing the conduct of a post-mortem examination on behalf of a coroner are designed to ensure that proper evidence relating to the cause of death is obtained by a suitably qualified expert who is independent of those who may be culpable in connection with the death. Moreover, the post-mortem examination may deliver evidence which goes far beyond the narrow cause of death. The rules allow others with a proper interest to be present or represented but ensure that the conduct of the inquest rests with the coroner's pathologist. The results of the post-mortem examination will almost invariably be given in evidence at an inquest. I do not consider that non-compliance with the rules relating to the post-mortem examination leads to the result that the examination is in any way invalid or that the evidence from it is necessarily inadmissible at a subsequent inquest. That could not be the imputed parliamentary intention, not least because such a result may frustrate the process altogether. If Mrs Shaw were right that there had been non-compliance in this case, and the stark consequences just mentioned were applied, there would be no evidence available from a post-mortem examination. None could now be obtained. Parliament could not have intended such an outcome.
- The better view in circumstances where non-compliance with the statutory provisions governing the conduct of a post-mortem examination is shown, is that the coroner must determine whether the evidence that flows from it should be admitted. The decision on that question will depend on the nature of the non-compliance and its materiality to the quality of the evidence in the light of the issues in the inquest.
- The Claimant suggests that important facts in this case relating to a connection between the assistant deputy coroner and the Trust, to which I shall turn in a moment, give rise to presumed bias or at least apparent bias on the part of the assistant deputy coroner. I do not understand the Claimant to be suggesting that the assistant deputy coroner was actually biased against her or her late father's family. Nothing in the material before the court could support such a contention. Presumed bias, which results in the automatic disqualification of a judge, arises in relatively narrow circumstances of which those in Dimes v Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759 are an example. Orders and decrees made by and on behalf of the Lord Chancellor were set aside on the ground that he had at the relevant times a substantial shareholding in the respondent company. The principle was there stated by Lord Campbell at page 793:
"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this High Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
- The development of that rule is discussed in the judgment of the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd  EWCA Civ 3004; (2000) QB 451. At paragraph 11-15 the court said this:
"11. Until recently the automatic disqualification rule had been widely (if wrongly) thought to apply only in cases where the judge had a pecuniary or proprietary interest in the outcome of the litigation. That is what the Dimes case, 2 H.L.Cas. 759 concerned, although the statement of principle quoted above is not in terms so limited. In Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No.2)  I A.C. 119, the House of Lords made plain that the rule extended to a limited class of non-financial interests. Lord Browne-Wilkinson said, at p. 135:
"My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have a economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties."
Lord Browne-Wilkinson added, at p.136
"It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest."
12. The other members of the House agreed that the rule should be extended to the extent indicated, and Lord Hutton observed, at p.145 that
"there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation."
13. In Reg. v Gough  AC 646 Lord Woolf suggested, at p.673, that the courts should hesitate long before creating any other special category of automatic disqualification "since this will immediately create uncertainly as to what are the parameters of that category and what is the test to be applied in the case of that category."
14. With that expression of view Lord Goff, it would seem, agreed, at p.664, and it has earned support in the High Court of Australia: see Webb v The Queen (1994) 181 C.L.R. 41, 75, per Deane J. In Ex parte Pinochet (No 2)  1 AC 119, 139, Lord Goff did not envisage any wider extension. Since any extension of the automatic disqualification rule would also, inevitably, limit the power of the judge and any reviewing court to take account of the facts and circumstances of a particular case, and would have the potential to cause delay and greatly increased cost in the final disposal of the proceedings, we would regard as undesirable any application of the present rule on automatic disqualification beyond the bounds set by existing authority, unless such extension were plainly required to give effect to the important underlying principles upon which the rule is based.
15. Although disqualification under the rule in the Dimes case, 3 H.L.Cas. 759 and Ex parte Pinochet (No.2) is properly described as automatic, a party with an irresistible right to object to a judge hearing or continuing to hear a case may, as in other cases to which we refer below, waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not."
- The facts in this case do not, in my judgment, give rise to any question of presumed bias in the sense discussed in the authorities. The circumstance which arose in this case, namely friendship with someone connected to individuals whose actions were under scrutiny at the inquest, must be viewed through the prism of apparent bias. Before turning to the principles which govern such questions it is convenient to set out the facts more fully.
- As I have noted, Mr Godsmark QC, as the newly appointed assistant deputy coroner for the purpose of conducting this inquest, held a pre-inquest review on 17 December 2010. The hearing of the inquest (fixed to commence on 4 January 2011) was expected to last between two and three weeks. A very large number of witnesses, including numerous professional witnesses, had been scheduled to attend. Immediately after the various legal representatives had identified themselves at the beginning of the hearing, the assistant deputy coroner said this:
"The first thing that I would like to say about that is to effectively declare, I suppose what might be considered an interest. I think that the former chief executive of the trust is a gentleman by the name of Mr Peter Reading who is a personal friend of mine. He is no longer the Chief Executive of the Trust and hasn't been I think for a number of years. I don't know whether this happened during his tenure or not. It is certainly a matter that I have never discussed with Mr Reading. I was unaware of this before my involvement. I have to also say that in my professional capacity, I have accepted instructions to consider proceedings against the Trust. I don't remember what the case was about. The only thing I do remember is teasing Mr Reading about it. As far as I'm concerned, I don't feel at all embarrassed in dealing with this matter, but I let you all know so that you do all know. Does anybody have any representations to make?"
- In answer to that, Mr Garnham QC indicated that Mrs Shaw would like some time to consider the matter and discuss it with him. A few minutes later the assistant deputy coroner adjourned the hearing for a short time for that to occur. When the inquest resumed the following exchange took place:
Sir, my clients have considerable concerns I am afraid about your connection with the Chief Executive of the Trust. You will appreciate how important this matter is for them the death of Mrs Shaw's Father is a matter which has affected her greatly and continues to do so. This has been a very prolonged and protracted period. This is, as you know, the fourth Pre-Inquest Hearing, you are the fourth person to hold the post of Coroner for the purposes of this Inquest and we have also done our best to cling to the date in January which we still want to keep. But my clients are very concerned that you have, and are entirely correct in revealing, a close personal connection with the Chief Executive of the Trust concerned. That affects us particularly because in the light of the Niche Report there are serious questions directly related to the circumstances of the death which affect the management of that Trust. For example, the procedure in place for obtaining the consent of patients undergoing this procedure, for which ultimately the Chief Executive would be responsible and, as a result, we have great concerns about the appearance, as much as the reality, of independence of you in directing the Jury and managing the Inquest with those matter in light
He is no longer the Chief Executive
He was at the time this happened
I wasn't even sure of that. Did this happen during his tenure?
You said I think, sir, earlier that he left the post 2 years go, which would be presumably in late 2008
I don't know the precise date on which he left. I know that he was and that he did leave, but as I say, this is not a matter that I ever discussed with him and I am not even certain that this happened during his tenure. Mr Pittaway, I don't know whether those behind you could assist?
The best information I have at the moment is that he had certainly left before January 2008. I think if perhaps a telephone call could be made, it might settle it
It may not even have happened on his watch, but we will still find out
Yes and I should say that the family are very grateful that you revealed this. The fact that has only emerged this morning has obviously put further pressure on them in deciding how to handle this, but, nonetheless, the concern remains
And the concern is what?
The concern is the appearance of independence (inaudible) and the fact, sir, that you are a close friend of the man who was responsible for the systems which are under investigation, and I am not here keeping case, we are investigating not arguing the case, will give the concern that however hard you try to maintain independence from that person, it might be difficult
I will not be the fact finder of the Inquest
You won't, and it's a point I have made to my clients, but you are, first of all, the Manager of the process
Indeed, and I will direct within the scope of the enquiry
I understand that
That's the source of concern. But, sir, this may all be academic if it turns out he is not there at the time. So I will sit down for the moment
I did seek to make the point that, in another capacity, Mr Garnham, of course, I have acted I am pretty certain against the Trust and the Trust don't seem to be troubled by that
No. That, of course, is a matter for them
Mr Garnham, I think I can deal with this quite shortly. Whether or not this happened during the tenure of Mr Reading as Chief Executive, I do not feel that this is a matter which causes me to recuse myself. This is something which I have revealed to Mrs Mason, it doesn't trouble her. Quite often, those undertaking some judicial function have some connection professionally, personally with those who appear before them and it causes no difficulty. I sit, as I know others do, in a judicial capacity in other respects and have to deal with case involving solicitors who instruct me and this happens regularly and without difficulty. I don't feel embarrassed by the matter and I don't consider whether or not Mr Reading was actually Chief Executive at the time to be determinative. We will find out because it may give Mr and Mrs Shaw some comfort but whatever the answer is, I am staying with this case
Very well, sir, then I will perhaps ask you to indicate that you are not offended by the fact we have raised the matter because you will understand …
Not at all. If I didn't think it was relevant, I wouldn't have raised it. The last thing that I want to happen is for that to come out subsequently and for there to be some bad feelings and some suggestion that I have hidden something
Well, sir, the reason I began these submissions by indicating our gratitude for you raising it was for that very reason and you are quite right, sir, that there are few of us who sit have not on occasions had such difficulties
The point is taken quite properly, Mr Garnham, and I can understand the concerns, of those who instruct you and your lay clients. I certainly don't hold any submissions against them but we will find out the date upon which Mr Reading left so that at least your clients are informed
Thank you sir"
- It is clear from these exchanges that the concern being expressed on behalf of Mrs Shaw was that the friendship between the assistant deputy coroner and Mr Reading might give rise to an appearance of bias, particularly in the event that the circumstances giving rise to her father's death occurred "on his watch" as it was put. A number of uncontroversial factors were identified in the course of the exchange. First, unlike a judge in civil proceedings the assistant deputy coroner would not be making any findings of fact. That was a matter for the jury. But secondly, and importantly, as judge he would have control over the evidence adduced before the jury and the scope of the enquiry.
- This matter having arisen at short notice, the facts had not been fully investigated at this stage. Further enquiries were to be made. In the course of the morning, those who instructed Mr Pittaway QC made enquiries. Towards the end of the transcript for that day there were further exchanges on the matter.
Can I also say whilst I am on my feet that the best information that I have been able to obtain about Mr Readings departure from the Trust was that he had gone by the end of August the beginning of September of 2007
I am terribly sorry?
He is still on the footer of the documentation coming out from the hospital
Well, can I say that it doesn't affect the decision that I made about my own position. I suppose the only point of it is that if Mr Reading had left before this procedure, that was going to be of potential solace to you and to Mr and Mrs Shaw and Mr and Mrs Ewan, but even if he hadn't left, you have still got me I am afraid
I can just clarify that if it be of assistance. All I have been able to obtain is that by the time there was the Board Meeting on the 6th of September, he had already left.
Very well, thank you, sir.
I think the letter that Mrs Ewan may have been referring to is a letter to the Coroner dated the 26th of September 2007 which has at its footer, "Chief Executive Doctor Peter Reading." Of course, it's perfectly possible people use out of date notepaper, but that's what it says on its footer, sir"
- These exchanges, when read in conjunction with the earlier exchanges, make it plain that the assistant deputy coroner understood himself to be dealing with what amounted to an application to recuse. It is also clear that he determined to carry on. The substance of the information made available during this hearing was to the effect that the erstwhile Chief Executive, Mr Reading, was a friend of the assistant deputy coroner but that he had left the Trust sometime before the board meeting on 6 September 2007.
- The inquest was fixed to start just short of three weeks after the pre-inquest review. No steps were taken to question the assistant deputy coroner's ruling that he would not recuse himself, either informally in correspondence with the coroner herself, or by way of judicial review. The application was not reviewed on 4 January. Privilege has not been waived in respect of any advice given to Mrs Shaw and other members of the family in this regard by Messrs Leigh Day or Mr Garnham QC. In her oral reply in these proceedings, Mrs Shaw adverted to an email communication from the partner at Leigh Day acting for her (which was not itself before the court). It at least shows that the matter was considered by the Claimant's legal advisers.
- For reasons already referred to, there had been some delay in the fixing of the inquest into Mr Ewan's death. It would have been inevitable were Mr Godsmark QC to have recused himself or a stay been ordered in judicial review proceedings, that this lengthy and complex inquest would have been put off for a period of at least some months.
- There is further information before the court concerning Mr Reading. First, the evidence of Mrs Mason is that Mr Reading ceased to be Chief Executive of the Trust on 21 September 2007. That is not inconsistent with the indications given by Mr Pittaway QC at the pre-inquest review. In the ordinary course, the date upon which an employee formally ceases to be employed will often postdate by some time the date upon which he actually ceases to undertake any work. That may be accounted for by such prosaic matters as an entitlement to take accumulated leave or an agreement not to work out any contractual notice period. The evidence suggests that Mr Reading had ceased to have any practical involvement in the work of the Trust at least some weeks before Mr Ewan underwent the TAVI procedure. His formal involvement with the Trust had ceased some days before.
- The assistant deputy coroner has provided a witness statement in these proceedings. The general indication he gave at the pre-inquest review, namely that Mr Reading was at the time a personal friend, has been amplified. He explains that he met Mr Reading in August 2004 when they were on holiday with their respective families, bumped into each other and discovered that they lived a few miles apart. They remained in intermittent contact in the ensuing year and ran into each other again at the same resort the following summer, where they overlapped for one of the weeks that Mr Godsmark and his family were there. They had not gone on holiday together. Their presence was coincidental. They had each visited the other's houses in England a couple of times. Mr Godsmark and his wife attended two parties in addition. They did not in fact see each other during 2010 or probably during 2009.
- The test for apparent bias is most conveniently set out in the speech of Lord Hope in Porter v. Magill  2AC 357 at para 103 and following. The relevant test is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker was biased. The test is identical to that articulated by the Strasbourg Court. The fair minded observer is expected to take an objective view, and therefore not look at the question from the point of view of any of the parties in the proceedings. The fair minded observer is expected to take a balanced approach (see Lord Steyn at para 14 in Lawal v. Northern Spirit Ltd  ICR 856), and reserve judgment until he or she has seen and fully understood both sides of the argument (see para 2 of Lord Hope's speech in Helow v. Secretary of State for the Home Department  1WLR 2416). The fair minded observer is not unduly sensitive or suspicious (Helow supra at para 2 per Lord Hope, para 14 per Lord Rodger and para 39 per Lord Mance). The informed observer is presumed to be in possession of the facts. Mrs Shaw particularly relies upon para 25 of the judgment of the Court of Appeal in Locabail:-
"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (KFTCIC v Icori Estero SpA (Court of Appeal of Paris, 28 June 1991, International Arbitration Report Vol 6#8 8/91)). By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly it the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application much be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
- Mrs Shaw submits that Mr Reading was, or at least should be considered as having been, involved in the case albeit that he was not a witness and none of his own actions were under scrutiny at the inquest. She submits that the general conduct of the Glenfield Hospital, and therefore the Trust, was under scrutiny at the inquest. In those circumstances a friendship with the Chief Executive who was still in post when her father first had dealings with medical staff at the hospital gives rise to apparent bias.
- I do not consider that the notional fully informed independent observer would have been troubled by Mr Godsmark's friendship with Mr Reading in the context of this inquest. In the first place, the observer would understand the nature of the inquest and the issues which arose. Mr Ewan's involvement with the Glenfield Hospital started in June 2007. His dealings were with the specialist medical team. The central issues at the inquest were whether Mr Ewan was in fact suitable for the TAVI procedure; whether he gave informed consent for the procedure; the detail of the information provided to him about risk; the nature of the anaesthesia he would receive; the conduct of the procedure itself (including which size valve was used) and the reaction to the emergency which developed in the course of the procedure. None of those matters, or indeed any of the subsidiary issues explored at the inquest, concerned Mr Reading (or his successor). Mr Reading was not called to give evidence at the inquest nor had he made a statement in connection with Mr Ewan's death. There was no mention of Mr Reading in the evidence. There was no mention of his successor. The focus of the inquest was not upon the way in which the hospital or Trust were managed. There was no investigation, for example, concerning the deployment of resources or staff because that was not in issue. This was not a case about management failure, as opposed to medical failings. The concern expressed on behalf of Mrs Shaw was that the Chief Executive would bear ultimate responsibility for the procedure in place for obtaining consent and other matters that were the subject of adverse comment in the Niche Report.
- Would a fair-minded and independent observer conclude that the conduct of the inquest by the assistant deputy coroner might be biased on the basis that he might unconsciously seek to protect those who worked in a hospital for which his friend was once responsible? I think not. But even if there were some lingering doubt about the matter, the fact that Mr Reading had left his post before Mr Ewan's procedure and death, to my mind, resolves it. As Mr Garnham QC realistically observed in the passages set out above the whole question might well be academic if it turned out that Mr Reading was not in post at the time.
- In paragraph 25 of Locabail, the Court of Appeal set out a series of circumstances which would not give rise to questions of apparent bias. In the context of the coronial jurisdiction, it will be inevitable that coroners have dealings with local authorities, health trusts, hospitals and police forces. Coroners are likely to know individuals in senior positions in all such organisations. The fact of such connection could not, without more, give rise to any soundly based objection. There would be no obligation upon a coroner to raise such matters for discussion at an inquest, any more than the other matters identified by the Court of Appeal in Locabail need to be raised by a judge in advance of a hearing. That said, in this case the connection between the assistant deputy coroner and Mr Reading was an entirely social one; and it went well beyond mere acquaintanceship. In those circumstances, it is entirely understandable why the assistant deputy coroner thought it right to mention the matter.
- In case I am wrong in concluding that the circumstances of the friendship between the assistant deputy coroner and Mr Reading do not give rise to any question of apparent bias, I turn to the issue whether (as Mr Sharland submits) by her conduct Mrs Shaw has waived the right to take the point in these proceedings. His short submission is that Mrs Shaw and her legal advisers were fully apprised of the information necessary to decide whether to challenge the ruling of the assistant deputy coroner that he should continue with the inquest, but did not do so before the inquest commenced. He submits that this is a case of a claimant having her cake and eating it. Had the inquest delivered the outcome desired by Mrs Shaw there would be no complaint. Because she is dissatisfied with the outcome, she now wishes to resurrect the bias point in the hope of securing a fresh inquest. He submits that the circumstances suggest that there was a clear and unequivocal waiver in this case, made with full knowledge of all the facts relevant to the decision whether to waive or not (see paragraph 15 of Locabail).
- Mrs Shaw submits that the information provided by the assistant deputy coroner at the pre-inquest review in December 2010 was incomplete. The additional detail provided in the witness statement of the assistant deputy coroner suggests a deeper friendship than he disclosed. She submits that she and her advisers were placed under considerable pressure of time because the matter only arose at the pre-inquest review. Furthermore, she submits that there was pressure to acquiesce in the assistant deputy coroner's decision because the inquest had been long in coming, was fixed to start in less than three weeks time and it was inevitable that the inquest date would be lost were the question of recusal to be pressed in any further way. Mrs Shaw relies upon the judgment of the Court of Appeal in Peter Smith v Kvaerner Cementation Foundations Ltd  EWCA Civ 242, and in particular upon the extensive citation from Jones v DAS Legal Expenses Insurance Co Ltd  EWCA Civ 1071;  IRLR 218 in the judgment of the Court given by Lord Phillips of Matravers CJ. The facts of the Smith case were unusual. A personal injury action came on for trial in Chesterfield County Court before a Recorder who was Head of Chambers of both counsel who appeared before him. Furthermore he had acted for companies in the same group as Kvaerner Cementation Foundations Ltd, and continued to be instructed by them at the time of the hearing. The continuing involvement in litigation on behalf of the group of which the defendant formed part was such as to give rise to apparent bias. The question arose at the trial itself whether the claimant, Peter Smith, would press any objection. By the time the matter got to the Court of Appeal, Mr Smith had waived legal professional privilege in the advice he had been given on the matter. There was a detailed explanation before the court from his then counsel about that advice. There was no real doubt that the Recorder's continuing connection with the Kvaerner group gave rise to apparent bias. It was in that connection that Lord Denning's observations in Metropolitan Properties v. Lannion  QB 577 at p. 600 were relevant:
"No man can be an advocate for or against a party in one proceedings, and at the same time sit as a judge of that party in another proceeding. Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he was biased."
- It was suggested on behalf of Mr Smith before the Court of Appeal that incomplete information had been given concerning the position of the Recorder; that Mr Smith had not been provided with information about the options available to him in the light of the circumstances that had arisen; that he had no time to reflect because the trial continued immediately and finally that inappropriate pressure was placed upon him by counsel exacerbated by the chambers connection. The court concluded that Mr Smith had been provided with an adequate explanation of the facts giving rise to the appearance of bias. However, there was no information sought or given about how quickly the case could be tried if he insisted that it be transferred to another judge. The court also considered that the strong advice given to Mr Smith by his counsel was, in the circumstances, inappropriate and amounted to the exertion of inappropriate pressure. It was in the context of waiver that Lord Phillips cited the earlier decision of the Court of Appeal in Jones.
- Jones was an employment tribunal case in which Mr Jones alleged sex discrimination and victimisation. The case was listed for four days. Mr Jones appeared in person at the hearing. He was a qualified solicitor but had no advocacy experience. At the start of the tribunal hearing the chairman announced that her husband had some involvement with DAS Legal Insurance Co Ltd as a barrister who accepted instructions from them. After a disjointed four day hearing had been completed (it was adjourned for 10 weeks on the second day), and a decision dismissing his claims had been announced, Mr Jones investigated the matter further. He discovered that the Chairman's husband had indeed accepted instructions as a barrister from DAS Legal Insurance Co Ltd and received fees of about £3,000. He therefore applied to set aside the decision. That application was rejected on the basis that he had not taken an objection earlier. Mr Jones appealed to the Employment Appeal Tribunal which also concluded that the issue had been adequately raised by the Chairman. Mr Jones had unequivocally waived his right to object to her continuing to hear the case. He appealed unsuccessfully to the Court of Appeal. The Court of Appeal concluded that it was sufficient for Mr Jones to have been told that the Chairman's husband was a barrister in chambers which did work for the employers and that he himself had done such work. The court did not consider it necessary for Mr Jones to know on how many occasions he had been instructed or how much he had been paid. The Court doubted whether Mr Jones had sufficient time to consider the matter and reflect upon whether to object when the name was raised. However, the disjointed nature of the proceedings (with the ten week adjournment in the middle) provided ample opportunity for reflection.
- I shall set out in full the passages from the judgment of Hale LJ relied upon by Mrs Shaw, together with the part that immediately follows the numbered sub-paragraphs.
"35. When confronted with an embarrassment of this kind, some judges may find it helpful to have some guidance as to the steps that may need to be taken to deal with the problem. In setting out these factors we do not pretend that the list is comprehensive or conclusive: each case will, of course, have its own special features which will shape the procedure to be followed.
(i) If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
(ii) Some time should be taken to prepare whatever explanation is to be given to the parties and, if one is really troubled, perhaps even to make a note of what one will say.
(iii) Because thoughts that the court may have been biased can become festering sores for the disappointed litigants, it is vital that the judge's explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid the kind of controversy about what was or was not said which has bedevilled this case.
(iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.
(v) The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.
(vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizens Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it.
We repeat that this guidance is no more than that: this is not a checklist, still less a definitive checklist for all cases. Sometimes some of these suggestions may be adopted, sometimes none of them may apply. We wish strongly to disabuse any disgruntled litigant of the idea that he may seize upon this judgment and use it as the mantra for complaint about ill-treatment. Any attempt to do so will receive short shrift.
36. As to the second question whether or not he had full knowledge of all the facts relevant to the decision, we have also found this difficult. Waiver would never operate if 'full facts' meant each and every detail of factual information which diligent digging can produce. Full facts relevant to the decision to be taken must be confined to the essential facts. What is important is that the litigant should understand the nature of the case rather than the detail. It is sufficient if there is disclosed to him all he needs to know which is invariable different from all he wants to know. "
- In the course of her submissions Mrs Shaw sought confirmation that this court is bound by the Court of Appeal, perhaps believing that the guidance found in the judgment of Hale LJ was to be treated as the equivalent of a statutory code. The passages I have set out, subject to the strong caveats at the end of para  and beginning of para , represent valuable guidance, not forming part of the ratio of the case. It provides a framework that might usefully be followed when questions of this sort arise, particularly at the substantive hearing of a claim (or indeed at an inquest).
- Mr Sharland submits that Mr Garnham QC did no more than float a concern on behalf of Mrs Shaw, rather than apply for the assistant deputy coroner to recuse himself. Therefore, he submits that the right to object was waived at the time, quite apart from being waived by inaction in the weeks between the pre-inquest review and the hearing of the inquest itself. I am unable to accept the first part of that submission. As one would expect, the issue was raised delicately and moderately by Mr Garnham QC, but the transcript shows that the assistant deputy coroner understood that he was being asked to recuse himself. He ruled firmly on the matter. In my judgment, it is on the inaction between the assistant deputy coroner's ruling and the start of the inquest nearly three weeks later that attention should be focussed.
- No question of waiver can arise unless the party who is being invited to waive an objection based upon apparent bias (or is said by his conduct to have waived an objection) is in possession of the full facts relevant to the decision whether to waive. The essence of Mrs Shaw's submission on this aspect of the case is that the details provided in the witness statement by the assistant deputy coroner should have been provided at the pre-inquest review. Her submission can be understood as suggesting that the additional evidence shows a closer relationship between the assistant deputy coroner and the former Chief Executive than the anodyne description he gave at the pre-inquest review that Mr Reading was "a personal friend of mine". In dealing with the matter, Mr Garnham QC understood that to mean a "close personal connection". It is true that in his witness statement the assistant deputy coroner has put flesh on the bones of that explanation. But as Hale LJ observed, waiver would never operate if 'full facts' meant each and every detail of factual information which diligent digging can produce. The need is to distil what the essential facts were which Mrs Shaw needed to know to consider whether, in the first place, to ask for recusal and in the second (if necessary) to challenge an adverse ruling. It is the nature of the case that matters, not the detail. What did Mrs Shaw need to know?
- In my judgment a statement that an individual is a 'personal friend' provides the information necessary to decide, in the light of the circumstances of the proceedings in question, whether to ask a judge to recuse himself. Just as it was unnecessary for Mr Jones to know on how many occasions the chairman's husband had been instructed by the respondents in his proceedings, or how much his fees were, it was unnecessary for Mrs Shaw to know the detail of the circumstances in which the assistant deputy coroner met Mr Reading or the number of social encounters. Indeed, the frequency with which people meet may not be a true indicator of the depth of friendship at all. The important distinction is between someone who is considered a friend, as opposed to an acquaintance or someone one merely knows through having met or perhaps with whom one has purely a professional relationship.
- Mrs Shaw was aware at the time of the pre-inquest review that Mr Reading had left the Trust before the board meeting in early September. It is true that the additional information provided in these proceedings suggests that he remained in formal employment until 21 September, but in my view that does not affect the question. The point being urged upon the assistant deputy coroner by leading counsel was that Mr Reading might bear ultimate responsibility for the procedures, in particular, for gaining consent which were in place in the hospital at the time that Mr Ewan was admitted for the TAVI procedure. He had no responsibility at all for what was happening at the hospital on 25 September and had ceased to have practical involvement some weeks before.
- In all these circumstances, Mrs Shaw was in possession of all she needed to know to decide whether to make an application for the assistant deputy coroner to recuse himself and, his having refused to do so, to challenge his decision.
- One of the underlying complaints made by Mrs Shaw, associated with the delay in the Inquest coming on for hearing, was that its conduct had passed through the hands of a number of different coroners. Mr Garnham QC explained that the family was keen not to lose the hearing dates fixed for January 2011. That was entirely understandable. The question is whether Mrs Shaw is to be taken to have waived her objection to the assistant deputy coroner conducting the inquest because she took no steps before the inquest started to challenge his ruling that he would not recuse himself. There can have been no question of an alternative coroner being identified and reading into the case before 4 January. The coroner herself could not conduct the inquest at that time; neither could her deputy, regular assistant deputy or the assistant deputy who had earlier been identified (Ms Casey). That is Mrs Mason's evidence. It would be unrealistic to suppose that the date could have been held if Mr Godsmark QC stepped down. That is likely to have been an important factor in any thinking of Mrs Shaw about whether to seek judicial review of his decision to conduct the inquest. As she observes in her amended grounds, "the family were told that the inquest would go back months further to an unspecified date, at which their counsel/solicitor may not be free to attend" (para 24). Mrs Shaw was faced with a difficult decision, given that the inquest was due to start in early January. She could acquiesce in the decision of the assistant deputy coroner, or threaten judicial review proceedings and, if necessary, seek a stay by way of interim relief.
- It has often been observed in judicial review proceedings concerning inquests that interested persons should be slow to run to the Administrative Court to challenge interlocutory rulings without waiting to see whether the ruling makes any difference to the outcome. But the nature of this complaint goes to the jurisdiction of the assistant deputy coroner to conduct the inquest. Furthermore, the inquest in prospect was an exceptionally long one, involving a large number of professional witnesses and multiple represented interested persons. Substantial amounts of money were being spent in connection with the inquest (Mrs Shaw's evidence explains what she spent). The consequences of an inquest having to be run a second time in the event of a jurisdictional problem would be very severe indeed. In those circumstances the decision of the assistant deputy coroner on the question of recusal was one which could and should properly have been challenged immediately.
- The timetable to draft and lodge proceedings would have been tight. Nonetheless, the intervention of Christmas and the New Year would not have interfered with the availability of a judge to deal with any urgent application.
- In my judgment it was incumbent upon Mrs Shaw to challenge the decision of the assistant deputy coroner before the inquest started, just as a litigant would ordinarily be expected to appeal against an interlocutory decision of a judge rejecting an application for recusal, rather than waiting for the trial and saving the point for a later appeal. Mrs Shaw had the necessary information to mount the challenge. Her decision not to do so amounts to an unequivocal waiver made with full knowledge of the necessary facts.
The Ethics Committee Documents
- Trials of new surgical procedures are carefully planned and thoroughly monitored. They involve an Ethics Committee to review progress. One matter of obvious and considerable importance is to monitor the impact of the trial on the patients. Such trials are undertaken in the hope that they will improve outcomes for patients. Should evidence emerge that the outcomes are worse the trial would very likely be stopped or modified.
- A file of documents known as the Ethics Committee Documents was obtained by the coroner. By letter dated 12 February 2010 she copied 'the full file' to Messrs Leigh Day. They in turn analysed the documents. They produced their own index of the documents which they sent to Mrs Shaw under cover of a letter dated 16 February 2010. That index noted that a small number of documents identified in the bundle was missing. In due course Leigh Day sent Mrs Shaw a copy of the documents. She tells us that her copy is incomplete in the sense that some documents which appear in the Leigh Day index were not sent on to her.
- On 26 April 2012 Mrs Shaw was given permission by Eder J to argue an additional ground that the assistant deputy coroner failed to take account of the Ethics Committee Documents. To make good that ground Mrs Shaw would have to demonstrate that the assistant deputy coroner was wrong in law in failing to adduce evidence from these documents or that the failure to do so resulted in an inadequate inquiry for the purposes of domestic law or for article 2 ECHR. The Defendants and interested parties point out that all those involved in the inquest had the documents and were able to use them for the purposes of formulating questions. They submit that in circumstances where the person now complaining had every opportunity through her lawyers to raise arguments relating to these documents, it is too late to do so now. Mrs Shaw responds by submitting that the duty to investigate rests upon the coroner concerned and not on the interested persons at the inquest either directly or through their lawyers. In that she is, of course, correct. However, any argument that a line of inquiry was not property pursued, or that evidence available to all was not adduced will as a matter of reality start from an unpromising position when the argument is being advanced by someone who was fully represented and when the point was not taken at the inquest. Mrs Shaw's first complaint is that the Ethics Committee Documents were incomplete in the two different respects I have identified. As to the first, namely that the content of the file itself shows that other documents must exist, it is of relevance to note two points. First, an inquest and the wider inquiry that precedes it is not a dry paper chase. The coroner will search for and inquire after material germane to the statutory function being performed. Secondly, I am entirely unpersuaded that any of the documents Messrs Leigh Day themselves found to be missing from the 'full file' sent to them by the coroner were of such relevance to the issues explored at the inquest that their absence could have any impact on the sufficiency off the inquiry. As to the second, those not forwarded by them to Mrs Shaw, that is not something that touches the conduct of the inquest at all.
- It should not be forgotten that Mr Ewan was not part of the trial. That, no doubt, is why the detail of the trial was not considered of importance at the inquest.
- The significance of the Ethics Committee Documents was considered at the pre-inquest review conducted by Ms Casey on 19 October 2010. In advance of the review she had sent out an agenda which contained her provisional view that the documents were unlikely to be relevant. That view was not challenged then or at the inquest, although Mr Garnham QC indicated that Mrs Shaw's advisers would consider them further. In the result a small number of pages were extracted and placed in the jury bundle at the request of Mrs Shaw's legal advisers.
The substance of Mrs Shaw's argument relating to these documents is:-
a) that the records relating to the patients who took part in the trial suggest that a number of them died following the TAVI procedure, contrary to the evidence of Dr Kovac; and
b) that they show that the valve used in her father's procedure was, contrary to the jury's conclusion, the larger version rather than the smaller version; and
c) The jury were misled on this latter point, as on so many others, and so arrived at the wrong answer on this just as they did on other crucial aspects of the case.
- Mrs Shaw produced a schedule which purported to summarise the material part of the Ethics Committee Documents recording adverse events suffered by the trial patients including, as she submits, the death of a number of them. I regret to say that the schedule was misleading. It was correct in noting that a number of those who took part in the trial subsequently died. It was misleading in suggesting that the deaths were connected with the TAVI procedure itself. A considerable amount of time was spent in the course of the hearing, both by Mrs Shaw and Mr Pittaway QC, in taking us to the serious adverse incident reports. That exercise demonstrated that the founding premise of this argument, namely that Dr Kovac misled the jury, was wrong. A number of the elderly and vulnerable patients who took part in the trial subsequently died. But their deaths were not connected with the TAVI procedure.
- Similarly, much time was taken in the hearing chasing through the documents to determine whether they provided any support for Mrs Shaw's assertion that the jury was wrong to conclude that the valve used in her late father's procedure was the smaller one available, rather than the larger one. This issue was linked to the dimension of Mr Ewan's ascending aorta. Mrs Shaw's analysis of the documents led her to conclude that there were four sizes of valve available, not two. That is a misreading of the documents, although an understandable one. The issue of the size of valve used was explored at length during the inquest with those present at the procedure, particularly as the valve had been mislaid after the post-mortem examination in circumstances that were unclear. There were contemporary documents including a label with a bar code upon it. On analysis, the documents Mrs Shaw showed us do nothing to undermine the oral evidence from those present that it was the smaller of the available valves that was used. On the contrary, when one looks at those documents alongside the label that came from the valve it is consistent.
Consent/ Suitable Candidate for TAVI
- The issue of consent occupied much time at the inquest. I have already noted that it was Mrs Shaw's belief that the procedure was explained by the doctors as 'risk free'. It is also her contention that she and her father believed that the procedure would be carried out under local, and not general, anaesthetic. The issue was allied with that of whether Mr Ewan was a suitable candidate for the TAVI procedure at all.
- The starting point for consideration of this issue is that the jury heard evidence from those, including Mrs Shaw, involved in initial discussions including Dr Kovac and Dr Jilaihawi. Mrs Shaw submits that her father did not give proper or informed consent, in particular because the risks were not explained. Thus the jury's answers to the questions relating to consent are simply wrong. She submits that seeking consent to the procedure through Dr Jilaihawi on the previous evening when Mr Ewan was in bed was wrong. The evidence of Dr Fitzpatrick (the Cheshire Consultant) was wrong regarding whether a general anaesthetic was mentioned. Dr Jilaihawi was not properly qualified to obtain consent, misrepresented the statistical risks associated with the procedure and his evidence was 'erroneous'. Mrs Shaw also submits that the assistant deputy coroner misdirected the jury on the meaning of consent and, in particular, did not refer to guidelines on consent published by the Department of Health, which were not placed before the jury in evidence. In paragraph  of the Amended Grounds Mrs Shaw put it in this way:
"The issue of consent was given too much weight by the coroner and was dealt with in an oppressive manner (whereas what caused the injury to the deceased leading to his death was not). 19 pages of the coroner's summing up (pages 27-38 and 41-47) are devoted to issues of knowledge, risk and consent. The evidence given by the doctors was that the deceased had not been warned of the risks of the procedure culminating in the coroner's own observation to Dr Kovac that by the time of his admission on the eve of 26.9.2007 someone had yet to explain to the deceased what the procedure was and what were the risks involved. The only evidence that the deceased might have given his consent thereafter during the night of 25.9.2001 was based itself on a tenuous account by Dr Jilaihawi with no apparent communication by the deceased having been recorded, the patient copy consent form having gone missing and based upon data which was inaccurate and upon which he coroner had failed to make sufficient inquiry."
- The reason that much of the time at the inquest was occupied in exploring the question of consent (and Mr Ewan's suitability for the TAVI procedure) was because they were issues of particular concern to Mrs Shaw and her family. Dr Fitzpatrick and Dr Kovac gave evidence about the dangers associated with open heart surgery for someone of Mr Ewan's age and vulnerability. They gave evidence that he was suitable for TAVI. Open heart surgery had associated with it a risk of death, stroke or kidney failure of 50%, according to Dr Fitzpatrick, and generally of death for patients over 85 of 30%, according to Professor Spyt.
- Mrs Shaw's contention that her father was not suitable for TAVI is based upon her belief that he was not properly screened for it. In addition to the evidence from the doctors who considered the question there was evidence before the jury from Dr Mullen, who had chaired the Committee that produced the Niche report. Mrs Shaw objects that he was not 'independent' in particular because he had previously worked with Dr Kovac.
- The world of cardiology is a relatively small one. It is inevitable that those prominent in the field will know each other and likely that they will have worked together. There is nothing surprising about this. The jury had before them a large body of evidence relating to Mr Ewan's suitability for the TAVI procedure. Their conclusion that he was suitable is unassailable.
- On the question of consent, there was a conflict of evidence between Dr Fitzpatrick and Mrs Shaw herself relating to early discussions with her father. The answers given by the jury as they touched Dr Fitzpatrick's involvement show that they preferred his evidence when considering what information had been given to Mr Ewan before he was referred to Dr Kovac at Glenfield Hospital. The consent sought from, and on the jury's findings given by, Mr Ewan depended crucially on the evidence of Dr Jilaihawi. The jury plainly accepted his evidence. Consent is a fact sensitive question. There is no doubt that the issue was exhaustively explored.
- The assistant deputy coroner was not obliged to refer to the Department of Health Guidance on consent, and neither was it necessary to adduce it in evidence. We are told that all parties had the document. It was discussed in the Niche report. All the legal representatives at the inquest were experienced in medical law, as was the assistant deputy coroner himself. The ingredients of consent would have been at their fingertips. Indeed, the law was considered by the assistant deputy coroner in connection with submissions advanced on behalf of Mrs Shaw and her family that a verdict of unlawful killing should be left to the jury, a topic to which it will be necessary to return.
- It is abundantly clear that all of the doctors concerned were questioned fully and appropriately about the question of consent. The information given to Mr Ewan was explored. The assistant deputy coroner rehearsed the evidence to the jury at some length. He gave them clear and appropriate directions on how they should approach the question.
- In reality, this aspect of the claim provides a clear example of a factual disagreement being clothed in legal garb in an attempt to sustain a challenge in judicial review proceedings. At the end of the hearing Mrs Shaw provided us with an annotated version of the jury questions and answers. The annotations refer us to many transcript references which might support a different conclusion or a particular point. They list arguments why, in Mrs Shaw's view, the jury was wrong.
- I do not for one moment doubt the sincerity and depth of Mrs Shaw's belief that many of the factual conclusions reached by the jury were wrong. Nonetheless, judicial review proceedings do not provide a forum to challenge factual findings which were open to the fact finder on the evidence available.
- In my judgment, none of Mrs Shaw's complaints relating to consent has any foundation.
- The questions which were given to the jury were the result of a collaborative effort between the assistant deputy coroner and the lawyers involved in the inquest. There were submissions made by the parties on the verdicts which should be left to the jury. The assistant deputy coroner rejected a submission made by Mr Pittaway QC that the jury should consider a verdict of natural causes. He also rejected a submission made by Mr Garnham QC that the jury should be free to return a verdict of unlawful killing and a verdict of "neglect" in the narrow sense understood in coronial law: see, for example Jamieson (supra); R (Scott) v HM Coroner for Inner West London  EWHC 105 Admin; R (Khan) v HM Coroner for West Hertfordshire  EWHC 302 Admin; R (Touche) v Inner London North Coroner  QB 1206. The standard of proof required to support a verdict of unlawful killing is the criminal standard; to support neglect the civil standard. The assistant deputy coroner considered these submissions in a written ruling. The argument relating to unlawful killing was advanced on the basis of gross negligence manslaughter and unlawful act manslaughter. The unlawful act manslaughter was founded on the premise that Mr Ewan did not consent to the TAVI procedure with the result that all that followed was an assault. The assistant deputy coroner identified the law in paragraph 21 of his ruling
"The law in this area is clear. If a patient knows in broad terms the nature of the operation he is to have and consents to it, then the fact that he is not fully informed as to the risks associated with the operation does not vitiate his consent (absent fraud or misrepresentation which are not argued here). This much emerges from the decisions identified in the Skeleton arguments:-
Chatterton v Gerson  QB 432
Sidaway v BethlemRoyal Hospital  QB 493 and  1 AC 871
Hills v Potter  1 WLR 641
Mr Garnham QC did not seek to argue to the contrary."
He then summarised the evidence and continued:
"26. In argument I asked Mr Garnham QC what more Mr Ewan needed to know before he knew "in broad terms the nature of the procedure he was to undergo". His response was that in addition Mr Ewan needed to know that the procedure
a) was to be done under general anaesthetic;
b) was novel;
c) carried with it substantial risk.
On examining those Mr Garnham QC quickly and realistically conceded that he could not argue that by the time Mr Ewan went to have TAVI on 26th September he did not know that he was to have a general anaesthetic and had consented to it.
27. So far as the other two matters are concerned, the evidence from Mr and Mrs Shaw is that they did know this was a new procedure. It can hardly be imagined that Mr Ewan was in any different position. In relation to risk this, in my judgment, seeks to introduce into the test for consent precisely what the case law removes. The fact that the patient may not have been informed of the risks involved does not mean that his consent to the actual procedure vitiates such consent. Mr Garnham QC is seeking to re-introduce knowledge of risk into the test of whether a patient understands in broad terms the nature of the operation he is to have.
28. Mr Garnham QC also said that there must in fact be consent to the procedure. However all of the evidence is to the effect that before the operation Mr Ewan had consented to having his TAVI. In my judgment no jury could safely conclude that he had not consented.
29. I conclude that the evidence is that, at the very least, Mr Ewan knew in broad terms the nature and purpose of the TAVI procedure he was to undergo and further that he consented to have the procedure and that his consent encompassed a general anaesthetic. I cannot see that any jury could safely decide otherwise. Accordingly I am not going to leave to the jury the option of a verdict of unlawful killing on the basis of unlawful act."
I agree. The assistant deputy coroner could not have invited the jury to consider a verdict of unlawful killing on the basis of unlawful act manslaughter, because the evidence could not support it.
- He dealt separately with gross negligence manslaughter, correctly directing himself to the law and in particular R v Adomako  1 AC 171. In my judgment he was correct to reject the submission of gross negligence manslaughter. The breaches of duty said to be 'gross' for these purposes were:-
"a) Failure to warn Mr Ewan of the risks of TAVI in good time. It was the timing of the giving of information which was central to this point.
b) Failure to provide Mr Ewan with comparative information as to the risks and benefits for him of the three options available (doing nothing, open heart surgery and TAVI).
c) Failure to provide information as to the nature of the TAVI procedure."
The person in breach was said to be Dr Kovac. Whilst no verdict of unlawful killing can name the culprit, it is still necessary to be able to identify him. The assistant deputy coroner's reasoning was this:
"R v Adomako (loc. cit) gives guidance in what is required before a breach of duty should be categorised as gross. It should involve "such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment". In R v Misra  1 Cr App R 21 at para. 25 in a medical context the Court of Appeal approved the following, "Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed".
40. As part of this exercise I need also consider the position of the individual who is alleged to be responsible for the breaches alleged. There must be at least one individual who is identifiable as responsible for the act or omission amounting to gross negligence rather than there being an aggregation of conduct by a number of people. However it is possible to look at the combined effect of a number of acts by one person. (see Dorries – Coroners Courts 2nd Ed at para. 9.36.2). In this case the individual identified is Dr Kovac as lead clinician whose responsibility (it is said) extended to ensuring that his patient was properly informed.
41. I reject the submission of Mr Garnham QC that unlawful killing on the basis of gross negligence should be left to the jury.
42. Firstly I do not see how a jury could safely conclude, so that they are sure, that the breaches identified should be categorised as "gross". So far as the timing of the giving of information is concerned it could never be said that it was anyone's intention to hide from Mr Ewan the risks of TAVI. Indeed the evidence is that Dr Kovac believed that Mr Ewan had been provided with the TAVI information sheet from the clinical trial. Furthermore he expected that a full consent procedure would be undertaken prior to the procedure by his Registrar Dr Jilaihawi. Given that the lapse alleged is when the patient is told rather than whether they are told at all I cannot see that a jury could safely conclude that this was a breach meriting criminal sanction.
43. As to the failure to provide Mr Ewan with comparative information as to the risks and benefits for him of the three options available (doing nothing, open heart surgery and TAVI) this is a failure to inform rather than a negligent act during the procedure itself. Again I cannot see that a jury could safely categorise such a failure as gross and meriting criminal sanction.
44. It must also be remembered that Mr Ewan was referred to Dr Kovac specifically to assess suitability for TAVI. The referral came for a senior consultant cardiologist Dr Fitzpatrick. It is Dr Fitzpatrick's evidence (albeit disputed) that he did inform Mr Ewan and Mr Shaw of the risks and benefits of the three options. Mr Shaw said that open heart surgery was never on the agenda for Mr Ewan because it was too risky. Dr Kovac was lead clinician in the Glenfield TAVI team. Patients were referred to him from all around the country specifically for TAVI. As he said, he expected the referring cardiologist to have discussed options before sending the patient to him for TAVI assessment.
45. There is thus an element of shared responsibility for informing Mr Ewan of his options and the attendant risks. This makes it even more difficult to categorise any breach by Dr Kovac as "gross".
46. I do not see how a jury could safely conclude that the breaches of duty identified here could amount to a disregard for the life and safety of others as stated in R v Adomako. They could not be described as "gross". They cannot form the basis of a verdict of unlawful killing."
The assistant deputy coroner was also doubtful that there was evidence of causation. It is clear that the view taken by the assistant deputy coroner was correct.
- The argument that 'neglect' should be left to the jury was said to arise from the way in which Mr Ewan's aortic bleed was treated. In particular it was submitted by Mr Garnham QC that the failure to appreciate that the bleed had not been brought fully under control before Mr Ewan was transferred to intensive care could amount to neglect. The context of the submission was the difficulty in identifying what caused the aorta to bleed. It sustained a small tear. Two possible causes were identified in evidence. Either a small hole caused by the wire used during the valve replacement procedure or by some natural calcification. Neglect, a concept entirely separate from negligence, requires a gross failure to provide basic medical care. It was abundantly clear from the evidence that once the bleeding was discovered all those concerned did what they could to control the bleeding. The assistant deputy coroner was correct to conclude that 'by no stretch of the imagination' was this a neglect case.
Dr Tapp's Evidence
- The pathological evidence was given by Dr Bouch. Towards the end of the inquest, Mr Garnham QC asked that Dr Tapp's report should be read. It will be remembered that he attended the post-mortem examination on behalf of the family of Mr Ewan. The assistant deputy coroner declined to read it on the basis that his conclusions were the same as those of Dr Bouch. Mrs Shaw submits that the way in which Dr Tapp expressed himself was 'semantically or syntactically' different from Dr Bouch. The cause of death given by Dr Bouch was adopted by the jury: see paragraph  above. Dr Tapp expressed himself thus:
"Cause of Death
1a) Cardiac failure
1b) Cardiac tamponade
1c) Damage to aorta during an aortic valve replacement
2)Ischaemic heart disease"
For convenience, I repeat Dr Bouch's formulation:
"Ia Heart failure following cardiac tamponade complicating percutaneous aortic valve replacement
II Coronary artheroscleosis."
- The assistant deputy coroner and the pathologists understood there to be no material difference between these two formulations. Were there any issue about the cause of death one would have expected an application to call Dr Tapp to give evidence. The assistant deputy coroner did not wish to confuse the jury. He could have read Dr Tapp's report, assuming there was no objection from any interested person. It would not have taken long to read and it might, on this point at least, have satisfied the family's wishes: see R (Lepage) v HM Assistant Deputy Coroner for Inner South London  EWHC 1485 (Admin) at paragragh 63. But his decision not to do so discloses no legal error.
Rule 43 and Moira Durbridge
- Rule 43 of the 1984 Rules (as amended by the Coroners (Amendment) Rules 2008) provides:-
"Prevention of future deaths
(a) a coroner is holding an inquest into a person's death;
(b) the evidence 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 may report the circumstances to a person who the coroner believes may have power to take such action.
(2) A report under paragraph (1) may not be made until all the evidence has been heard except where a coroner, having adjourned an inquest under section 16 or 17A of the 1988 Act, does not resume it.
(3) A coroner who intends to make a report under paragraph (1) must announce this intention before the end of the inquest, but failure to do so will not prevent a report being made.
(4) The coroner making the report under paragraph (1)—
(a) must send a copy of the report to—
(i) the Lord Chancellor; and
(ii) any person who has been served with a notice under rule 19; and
(b) may send a copy of the report to any person who the coroner believes may find it useful or of interest.
(5) On receipt of a report under paragraph (4)(a)(i), the Lord Chancellor may—
(a) publish a copy of the report, or a summary of it, in such manner as the Lord Chancellor thinks fit; and
(b) send a copy of the report to any person who the Lord Chancellor believes may find it useful or of interest (other than a person who has been sent a copy of the report under paragraph (4)(b)).
- Moira Durbridge was employed by the Trust as Director of Safety and Risk. In a witness statement provided for the inquest she explained that following the receipt of the Niche Report, which made a number of broad recommendations, the Trust prepared an action plan. Her evidence went to the implementation of the plan.
- After the jury retired to consider its verdict, the assistant deputy coroner asked Ms Durbridge to give evidence about the Niche Report, its recommendations and the action plan. That was with a view to his deciding whether to make a report under rule 43. The coroner chose not to make such a report.
- Mrs Shaw reminded us that the state's article 2 obligation may involve taking positive steps to avoid the loss of life. Rule 43 of the 1984 Rules provides a mechanism which enables coroners to draw to the attention of those with responsibility for taking action failings which, if mitigated or put right, might prevent future deaths. She points to other deaths at Glenfield Hospital (see paragraph 91 below) and so submits that the assistant deputy coroner was, as a matter of law, obliged to make such a report.
- The thrust of Ms Durbridge's evidence was that everything was being done which arose from the Niche report. In those circumstances it is unsurprising that the assistant deputy coroner took the view he did. A failure to exercise the power to report conferred by rule 43 could be challenged only on conventional public law grounds. None can be raised here.
Documents/Access to Coroner's Register
- Long after the inquest Mrs Shaw sought details from the coroner of all inquests into deaths which were known to have occurred at the Trust's hospitals arising directly or indirectly out of the TAVI procedure between 1 January 2006 and 31 May 2011. Mrs Shaw has herself investigated a number of deaths which she believes resulted from complications associated with the TAVI procedure. She has produced seven death certificates relating to individuals who died between 8 May 2008 and 2 February 2011. Three record death by natural causes, three refer to aortic valve replacement and one to 'purcutaneous coronary intervention'.
- The claim form makes no mention of this part of the claim, but the Amended Grounds refer to the coroner's duty pursuant to rule 54 of the 1984 Rules to keep an indexed register of deaths reported to the coroner. Mrs Shaw has asked to inspect the record but has not been allowed to do so. No legal basis for an entitlement to inspect has been advanced. This matter was not dealt with in oral argument. Nor, of course, was this raised at the inquest.
Rule 54 provides:
"54. A coroner shall keep an indexed register of all deaths reported to him, or to his deputy or assistant deputy, which shall contain the particulars specified in Schedule 3."
Schedule 3 is in these terms:
Register of Deaths Reported to the Coroner
Particulars of deceased
Date on which death is reported to coroner
State whether case disposed of by using Pink Verdict at inquest (if any)
Form A or B or whether inquest was held
Cause of death
Full name and address
- It can be seen that the information is sketchy but might provide a springboard for investigating cases in which the cause of death sparks interest.
- I am not persuaded of any legal entitlement to inspect the Register but equally there is no obvious reason why the contents should be viewed as confidential. Mrs Shaw suggests that:
"The records would provide relevant information beyond that presently available regarding the deaths arising directly/indirectly from TAVI since early 2007"
- By this part of her claim, which has little to do with the inquest conducted into the death of her father, Mrs Shaw is seeking information relevant to a wide inquiry into the use of the TAVI procedure. The Ethics Committee Documents provided information relating to those who had taken part in the trial. In my judgment, information on a much broader canvas was not necessary for a full investigation into the death of Mr Ewan. In any event, this complaint provides no basis for a new inquest.
- Mrs Shaw makes a number of overarching complaints which may be summarised as:-
1. The investigation into her father's death was inadequate.
2. The assistant deputy coroner failed to explain the evidence properly in his summing up.
3. On many issues the jury came to impermissible conclusions on the facts.
- In my judgment none has any substance. This was an exceptionally thorough inquest at which the issues and evidence were explored by an assistant deputy coroner whose experience particularly equipped him for the task. Mr Ewan's family were represented by an expert team. Mrs Shaw has her own view of the matters which were investigated. The inquest was obviously highly charged and difficult. The observation of the foreman of the jury after the jury had completed its task was apposite then as now:-
"I think we would all like to pass on our condolences to Mrs Shaw and the family and that the only decision we could come to is what we have done."
- I have endeavoured to explore the substance of Mrs Shaw's complaints as they emerge from the very lengthy documents and voluminous material she has provided to the court. In my judgment there was only one arguable ground, namely that relating to apparent bias. The balance of Mrs Shaw's points are for the most part attacks upon the factual findings of the jury, with which she profoundly disagrees. The few points that do not fall within that rubric have no substance. None of the arguments raised impugns the inquest which was conducted into the death of William Ewan, still less calls for a fresh one.
- In these circumstances, if my Lord agrees, the claim will be dismissed. I would invite the parties to agree an order. If any matters cannot be agreed between the parties, they will be dealt with in writing. The parties are to make written submissions as they need within 14 days of these judgments being handed down.
HH Judge Peter Thornton QC, Chief Coroner:
- I agree. In particular I agree with my Lord that there was no apparent bias on the part of the assistant deputy coroner. In the particular circumstances of this case the "personal friendship" of the assistant deputy coroner with Mr Reading was limited, Mr Reading had previously been chief executive of the relevant hospital trust but was no longer employed by the trust at the time of Mr Ewan's surgical procedure, Mr Reading was not a witness, he had not made a statement, he was not referred to in evidence at the inquest nor was his post or his successor, and the trust was not impugned in the inquest in either its systems or procedures. As my Lord said, this was a case about medical failings, not management failure. This combination of factors, entirely specific to this case, leads to the firm conclusion that there was no apparent bias.
- In any event the claimant, Mrs Shaw, unequivocally waived her right to complain of bias by her failure to institute proceedings by way of judicial review or at the very least to write to Mrs Mason, the local coroner, to complain. Hers was a fully informed decision at the time not to challenge the decision of the assistant deputy coroner not to recuse himself.
- I would add this on the question of bias. Although in this case there was no bias, no actual, presumed or apparent (or perceived) bias, on the part of the assistant deputy coroner, he was right to raise the matter in the pre-inquest review. All coroners, doing their best to maintain independence and impartiality, should be alert to the risk of a real possibility of failing the objective test of the fair-minded and informed observer (Porter v Magill, supra) and to the need to disclose as early as possible a relevant interest or relationship to all interested persons for discussion.
- Although much guidance has been given (such as in Locabail, Jones and Smith, supra) no two sets of facts are likely to be the same. Chapter 7 of the Guide to Judicial Conduct (revised version August 2011), headed "Personal relationships and Perceived Bias", while recognizing there are "few hard and fast rules", sets out for judicial office holders a number of "signposts for guidance", especially in relation to "parties" to the litigation. In inquests there are no parties, but, amongst a number of possible interests, a personal friendship or close acquaintance (or animosity) or business relationship with an interested person or a witness or an organisation coming under scrutiny, particularly where credibility is in issue, should put the coroner on notice. These are only examples. Each case must be considered on its individual circumstances.
- It is inevitable that coroners, by the very nature of their work and the localness of coroner arrangements, will develop close contacts with some persons who enter the arena of the coroner investigation and inquest, for example senior members of hospitals and health trusts. If the close contact strays beyond the bounds of a working relationship into a personal one, the coroner should examine the circumstances carefully and decide whether to make disclosure, but not otherwise. So too should a part-time coroner who as a lawyer has clients (or his firm or chambers has clients) which might require open disclosure of a particular interest, for example acting for a company in the same group as an impugned company (as in Jones, supra).
- Once on notice the case law advises the coroner to disclose as much as possible of his interest. This disclosure should be put in writing or otherwise recorded in a permanent record. The coroner should then usually advise any interested person affected of the options: (i) consent to the hearing going ahead and losing the right to object later (waiver); (ii) apply to the coroner to recuse himself (which the coroner will not take amiss), and, if he recuses himself, what effect recusal would have on the timing of the inquest. Any person affected should have adequate time to reflect and, if necessary, take legal or other advice before making a free and informed decision. All of this is guidance, not a hard and fast checklist: see Hale LJ in Jones (supra).
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