Shaw, R (on the application of) v University Hospitals of Leicester NHS Trust & Ors

A judicial review of an inquest is not an appeal on the facts. The Administrative Court will not interfere with factual conclusions reasonably open to the coroner or jury. An ad hoc assistant deputy coroner may lawfully be appointed where the coroner and existing deputies are reasonably unavailable, including because the inquest requires particular expertise.

Apparent bias is assessed by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. A personal friendship does not automatically establish apparent bias; the whole factual and procedural context matters. A known objection to apparent bias must ordinarily be challenged before the substantive hearing, and may be waived by informed inaction.

William Ewan died after undergoing a transcatheter aortic valve implantation at Glenfield Hospital. Following a lengthy inquest, the jury returned a narrative verdict recording death from heart failure following cardiac tamponade complicating the procedure.

Mr Ewan’s daughter sought judicial review and an order for a fresh inquest. She challenged delay, the appointment of the assistant deputy coroner, the post-mortem examination, alleged apparent bias, the scope and adequacy of the investigation, the treatment of evidence, the directions on consent and the verdicts left to the jury.

1. The claim was dismissed. The inquest was thorough and none of the grounds justified quashing the inquisition or ordering a fresh inquest.
2. The delay of about three and a quarter years was undesirable but, in the context of a complex medical inquest involving many witnesses and substantial documentation, it was neither unlawful nor incompatible with the procedural obligation under article 2 of the European Convention on Human Rights.
3. An ad hoc assistant deputy coroner could lawfully be appointed. A coroner, deputy or assistant deputy may be reasonably unavailable through engagement in other judicial or administrative work. The power to appoint an additional assistant deputy also extends to cases where the nature of the inquest calls for particular skills or expertise.
4. The alleged friendship between the assistant deputy coroner and a former chief executive of the relevant Trust did not create apparent bias. The fair-minded and informed observer would take account of the fact that the former chief executive was not a witness, was not referred to in evidence, had left before the procedure, and that the inquest concerned medical failings rather than management failure. In any event, the claimant had the necessary facts and unequivocally waived the objection by failing to challenge the recusal decision before the inquest began.
5. A breach of the rules governing a post-mortem examination would not automatically invalidate the examination or make all resulting evidence inadmissible. The coroner should assess admissibility by reference to the nature of the non-compliance and its materiality to the quality of the evidence.
6. The jury’s findings on suitability for TAVI and consent were factual conclusions open to it. Consent was fact-sensitive, and the assistant deputy coroner was not required to place Department of Health guidance before the jury or refer to it expressly.
7. The evidence could not support verdicts of unlawful killing or neglect. A patient who knows in broad terms the nature and purpose of an operation and consents to it is not deprived of consent merely because the risks were not fully explained, absent fraud or misrepresentation. The alleged failures did not amount to gross negligence manslaughter, and the treatment of the bleeding was not a gross failure to provide basic medical care.
8. The decision not to make a report under rule 43 was challengeable only on conventional public law grounds. No such ground was established.

First instance judicial review. The court dismissed the claim and declined to quash the inquisition or order a fresh inquest.