Jenkins, R (on the application of) v HM Coroner for Portsmouth & South & Ors

A coroner’s verdict may be challenged as perverse only where the decision was one that no reasonable coroner could reach on the evidence. A competent adult has an absolute right to refuse medical treatment, even where refusal may result in death. A carer may nevertheless owe a duty to obtain medical assistance if the patient lacks capacity to make an informed decision. Where capacity and causation remain reasonably contestable, a coroner is entitled to reject an unlawful-killing verdict unless satisfied to the criminal standard that the relevant duty, breach and causation are established.

The claimant challenged the narrative verdict returned by HM Coroner for Portsmouth and South East Hampshire following the death of Russell Anthony Neal Jenkins. The claimant contended that the only rational verdict was unlawful killing by gross-negligence manslaughter, based on Ms Cameron’s failure to obtain medical assistance for an infected and gangrenous foot.

The coroner concluded that Mr Jenkins had repeatedly refused conventional medical treatment and that it was not proved that he lacked capacity during the final hours of his life. Alternatively, the coroner was not sure that obtaining assistance during the final two hours would have made a significant contribution to his death. The issue was whether those conclusions were perverse.

1. The claim was dismissed. The claimant bore the burden of showing that the coroner could not reasonably have reached his conclusions. The court would not replace the coroner’s assessment of witnesses, particularly where the coroner had observed and questioned them, unless the verdict was perverse.
2. The proposed unlawful-killing verdict required proof beyond reasonable doubt that Ms Cameron owed a duty of care, breached it, caused the death, and acted with gross negligence of a criminal character.
3. The authorities concerning carers who failed to obtain assistance, including Stone and Dobinson [1977] 1 QB 354, In re Land, decd [2007] 1 WLR 1009 and R v Hood [2004] 1 Cr App R (s) 73, did not determine the present issue. In those cases the deceased had become incapable of caring for themselves or making decisions. A competent patient’s refusal of treatment therefore remained legally significant.
4. The court accepted the principle stated in HE v A Hospital NHS Trust, AE by her litigation Friend the Official Solicitor [2003] EWHC 1017 (Fam): a competent adult may refuse medical treatment for any reason, including where refusal will lead to death. If Mr Jenkins retained capacity, Ms Cameron was not required to act against his expressed wishes.
5. If Mr Jenkins had lost capacity during the final two hours, Ms Cameron would no longer have been bound by his earlier refusals and would have owed a duty to seek help. However, the evidence permitted the coroner to accept that Mr Jenkins remained capable of expressing his wishes. Alternatively, the coroner was entitled to conclude that the evidence of a possible 10–30 per cent chance of survival did not establish beyond reasonable doubt that the omission made a significant contribution to death.

The claim for judicial review challenged the narrative verdict returned by HM Coroner for Portsmouth and South East Hampshire on 13 November 2008. The High Court dismissed the claim.