R (on the application of Donald Lewis Jenkins) v HM Coroner For Portsmouth & South East Hampshire & (1) Cherie Elizabeth Cameron (2) Elizabeth Finn (Interested Parties) [2009] EWHC 3229 (Admin)

This case considered the extent of liability to those caring for individuals who make unwise, but fully capacitated, decisions in respect of their health and welfare needs.
In this instance the claimant sought a judicial review of the coroner’s decision in respect of his son’s death. Russell Jenkins, [ ‘J’] a diabetic, had injured his foot resulting in an infection which became gangrenous. He was cared for by his partner, Ms Cameron, who had worked as a nurse and by Ms Finn, who was a homeopath. J had very strongly held beliefs in the power of alternative remedies and had, for a number of years, disengaged from NHS services. He repeated refused conventional medical intervention for the injury, despite being aware that a course of antibiotics would likely have treated the original infection effectively and that it was likely that the infection had become gangrenous. During the course of the infection both J and Ms Cameron had spoken with his family members and made no mention of the infection. He later developed septicaemia and died.
At the inquest the Coroner considered whether he could return a verdict of suicide, but was satisfied that the deceased had no thoughts of killing himself and of unlawful killing. In order for such a finding he concluded he would have to establish that either Ms Cameron or Ms Finn could be deemed responsible for his death because of gross negligence manslaughter.  He confirmed that whilst J was competent and refusing medical intervention no person had a duty of care to obtain this for him against his express wishes. He therefore considered whether there came a time prior to his death where he was not competent to make his own decisions and, if so, whether Ms Cameron and Ms Finn had a duty, at that point, to obtain medical treatment for him. Ms Cameron had accepted, in evidence to the Coroner, that she had assumed a duty of care to J because she had dressed his wounds and discussed with him the his course of treatment. However the Coroner found sufficient evidence that J had determined his own treatment for the infection and made his own decision not to obtain medical assistance and that the evidence suggested that he had continued until very shortly before his death to make these wishes known. He concluded that, although J had lost consciousness shortly prior to his death, neither Ms Cameron nor Ms Finn owed a duty of care to obtain medical assistance on his behalf and that, even were they to have done so, this would not have had a material effect on the outcome. Further he was mindful of the fact that Ms Cameron had suggested they seek medical assistance to J which the Coroner suggested could have been all that was needed, if a duty of care had arisen, to satisfy her obligations.
The court was asked to re-examine the Coroner’s verdict as perverse. The Claimant put forward the argument, based on the case of Stone and Dobinson [1977], that an expression of preference by someone to whom a duty of care is owed does not obviate the duty. The claimant argued that J had been prevented by Ms Cameron from exercising real choice because she had prevented any meaningful contact with anyone (including his family) who could have questioned his capacity to make such a choice. The claimant, concerned that her evidence on his capacity to make decision had been accepted in such circumstances, also questioned whether such evidence was creditable and argued that notwithstanding this, she had a clear duty to act at the point that he lost consciousness to obtain medical assistance because there was a real chance (quantified at 10-30%) that he could have recovered. It was agreed that for the Coroner to have given the verdict of unlawful killing he had to be sure beyond a reasonable doubt that:
(i) There was duty of care owed by Ms Cameron towards Mr Jenkins;
(ii) Ms Cameron was in breach of her duty of care;
(iii) The breach caused the death of the deceased;
(iv) The breach of duty was gross and therefore criminal.

The Court rejected the application for judicial review on the basis that they could not find the Coroner’s findings perverse. There was clear evidence, not only from Ms Cameron, that J had his own strongly held views about self-care. He had chosen not to accept conventional medical help for four months prior to his death, including during a period of three weeks when Ms Cameron was away. They were satisfied on the evidence, again of more than just Ms Cameron, that those were his wishes and that he knew of the likely consequences of not seeking medical help. After he had fallen into unconsciousness the advanced state of septicaemia meant there was a very small statistical chance that medical intervention would have worked. The Court was not satisfied that the Claimant had adequately demonstrated that the coroner’s findings were perverse. Rather the Coroner had reasonably concluded on the evidence before him that it was J’s own decision not to seek medical assistance that caused his death and that even if Ms Cameron was in breach of a duty of care (by not obtaining medical assistance once he had lost consciousness) it would have made little difference to the outcome so could not be said to have caused the death.

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