R (on the application of LEWIS) v SENIOR CORONER FOR NORTH WEST KENT [2020]


What Happened

Below, highlights of proceedings by way of judicial review of a coroner’s decision.

Ms L suffered from mental and physical health issues which were exacerbated by a 2010 operation. After the operation Ms L suffered significant weight loss and led to her being sectioned, briefly.

Between 2010 and 2016 her weight was mostly stable, but Ms L still had visits to psychiatric units, and generally struggled to co-operate with hospital staff (eg refusing medication or giving blood samples).

In February 2017 her health deteriorated to the point where she was readmitted to the psychiatric unit. In July she was found partially conscious; she was undernourished, had poor oral hygiene and bed sores. She had lost a significant amount of weight, her medical records were not properly maintained, and clearly her hydration and nutrition policy/plan was not being sufficiently followed.

Just under two weeks later, she died. There was an inquest into her death.

A doctor questioned the aftercare she received at the unit, and Ms L’s family also criticised the unit – stating that they failed to keep proper records of Ms L’s decline, failed to seek proper advice and failed to follow their own policy on nutrition. However, the psychiatric unit stated Ms L was unco-operative and they had trouble feeding her as she had malabsorption anyway.

It was concluded by the jury that Ms L’s cause of death was malnutrition. The coroner highlighted concerns surrounding the communication between psychiatrists and doctors, and the inadequate care they provided at the unit.

During the coroner’s summing up, the claimant queried the coroner’s decision not to allow the jury to rule on the issue of neglect. The coroner stated that it would not be appropriate in this case citing another earlier case as informing that view (R. v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson [1995] Q.B. 1).

What was found

The Jury’s decision was quashed, and a new inquest would take place.

The claimant only realised that the issue of neglect would not be discussed by the jury when the coroner was summing up. The Administrative Court said that it would have been better practice if the coroner had made his intentions clear at the beginning of proceeding.

Given the surrounding circumstances Ms L passed away under – malnutrition, bad record keeping etc, it was not possible for the Court to understand why neglect was not an issue properly to be left to the jury, or how it could have been detrimental for them to consider the issue.

Therefore the coroner’s closing off the option of a finding neglect from the jury when it should have been properly open to them, was unreasonable, and therefore the inquest was flawed. The Jury’s decision was quashed, and a new inquest would take place.

Points for the public, service users, families and safeguarding

When someone dies in the care of the State an inquest is not always held, but in this situation one was.

Section 1 of the Coroners & Justice Act 2009 requires a Coroner’s investigation to be held if the Coroner has reason to suspect that a person has died:

A violent or unnatural death;

A death, the cause of which is unknown; or

The deceased died while in the custody or otherwise in state detention – this also includes those subject to Deprivation of Liberty Safeguards and the Mental Health Act 1983. The Coroner is under a duty to carry out preliminary investigations to determine whether there then needs to be an inquest hearing.

The main thrust of an inquest is how the person died? And sometimes, by what means and in what circumstances did they die?

The Coroner here had seemingly focused on whether any aspect of the care had been negligent, but neglect is the concept that is the essence of an inquest that might involve system failure, not negligence.

In this context “neglect” means a gross failure to provide adequate nourishment or liquid; or provide or procure basic care or medical attention or shelter or warmth for someone in a dependent position who cannot provide it for himself.

Failure to provide basic care for a dependent person whose physical condition is such as to show that he obviously needs it, may amount to neglect. The required treatment can be for a person’s mental condition if that is the area which obviously calls for medical attention, and a failure to provide mental health treatment can result in a neglect finding. However there cannot be a finding of neglect unless there is a clear, causal connection between neglect and the death. Most cases of neglect will be cases where there has been a failure to provide care rather than cases of providing the wrong type of care. “Neglect” in the coronial sense has nothing to do with “negligence” as in civil negligence.

The reason bereaved people sometimes want a finding of neglect is that changing a culture within an organisation or getting a ‘lessons learned’ approach embedded is very hard if nothing has been found to have happened that was less than adequate.

There is no appeal from an Inquest, but there is judicial review, on the normal grounds of irrationality, error of law, etc.