Mack, R (on the application of) v Coroner for Birmingham and Solihull & Ors

A coroner has a wide area of judgment under section 11 of the Coroners Act 1988 when deciding which witnesses it is expedient to examine. The court may intervene where that decision is not rationally open on Wednesbury principles.

Where numerous troubling shortcomings in hospital care require investigation, evidence from a doctor without responsibility for the relevant ward may be inadequate. The coroner must have a rational basis for declining to obtain evidence from the responsible consultant or a suitable substitute. A general practice of accepting the hospital’s nominated witness does not provide such a basis.

Whether a fresh inquest requires a jury under section 8(3)(d) depends on the circumstances existing when that question is reconsidered, including the implementation of measures intended to prevent recurrence.

The claimant’s husband died in hospital after treatment for Clostridium difficile. The records disclosed numerous possible shortcomings during his final days, including gaps in prescribed medication, defective fluid records and failures to carry out investigations and monitoring requested by the consultant responsible for his ward.

The coroner called a consultant who had last seen the deceased before his transfer to that ward. He declined to call the ward consultant and refused the family’s request for a jury. HHJ Inglis, sitting as a deputy High Court judge in the Administrative Court, dismissed the claimant’s application to quash the inquest.

The claimant appealed. The central questions were whether the coroner could rationally conclude that the clinical history could be investigated adequately without evidence from a doctor responsible for the deceased’s treatment on the ward, and whether section 8(3)(d) of the Coroners Act 1988 required a jury.

1. Appeal allowed. Toulson LJ gave the judgment, with which Lord Neuberger MR and Etherton LJ agreed. The inquest and decision were quashed, and a fresh inquest was directed before a different coroner.

2. Section 11 of the Coroners Act 1988 gives a coroner a wide discretion, or area of judgment, in deciding whom it is expedient to examine. Judicial intervention is justified only where the decision was not properly open on Wednesbury principles. A coroner need not call every person capable of giving relevant evidence and may consider the burden that attendance places on medical staff.

3. The decisive question was whether the acknowledged investigation of the full clinical history could be conducted adequately through the evidence of a consultant who had not seen the deceased after his transfer to the relevant ward. The case involved a series of troubling possible failings rather than a single lapse. These included defective fluid records, unexplained omissions in administering medication, and failures to implement tests and monitoring ordered shortly before death.

   The consultant who gave evidence could assess the notes but could not explain whether the failings were isolated or systemic, the deceased’s observed condition, or what occurred on the ward. The responsible ward consultant, or possibly another doctor working there, was the natural person to address those matters. No truly rational ground had been shown for declining to explore them with that consultant or a suitable substitute. The coroner’s general practice of accepting the hospital’s nominated witness was not a satisfactory explanation.

4. The Court did not determine whether section 8(3)(d) required a jury. The relevant provision turns on whether circumstances whose continuance or possible recurrence would prejudice public health or safety appear to exist. The current stage of implementation of the hospital’s action plan was unknown. The new coroner should therefore determine the jury question after receiving submissions based on the circumstances then existing.

5. The claimant was awarded her costs from and including the hearing before the Administrative Court, together with all appeal costs. The earlier costs of the paper permission application and preparation for the first-instance hearing were excluded. The order implied no criticism of the coroner’s conduct of the litigation.

1. Court of Appeal (Civil Division): The appeal was allowed. The Court granted judicial review, quashed the inquest and decision, and directed a fresh inquest before a different coroner: [2011] EWCA Civ 712.

2. Administrative Court, Queen’s Bench Division: HHJ Inglis, sitting as a deputy High Court judge, dismissed the claim to quash the inquest. No citation is stated in the judgment.

3. Coroner’s inquest: The coroner rejected requests to call further hospital witnesses and to summon a jury. The inquest was subsequently quashed by the Court of Appeal.