Shaw v HM Coroner for Leicester City & South Leicester

An Article 2-compliant inquest must provide a full and fair inquiry into the circumstances of death. The coroner retains that duty in inquisitorial proceedings even if the parties and their lawyers have narrowed the issues, but may look to them for assistance. A coroner need not pursue a line of inquiry based on speculation or unsupported assertions, particularly where the relevant material was available and carefully considered. A challenge based on omitted material must show a realistic prospect that it could have affected the verdict. Clear findings on informed consent, the risks and options explained, and the device used may defeat such a challenge. The inquest here met the demands of Article 2.

Mr Ewan died after undergoing transaortic valve implantation at Glenfield Hospital. His daughter, Mrs Shaw, challenged the resulting inquest, alleging that the investigation had failed to examine documentation concerning the medical-device trial and material relevant to informed consent and suitability for the procedure.

The Divisional Court of the Queen’s Bench Division dismissed her application for judicial review. On a renewed application for permission to appeal, the Court of Appeal considered whether the alleged omissions disclosed an arguable failure to conduct a full and effective inquiry under domestic law and Article 2 of the European Convention on Human Rights.

Lady Justice Hallett gave the reasons for the court. Lord Justice Davis and Lord Justice Floyd agreed with her conclusion and reasoning. The renewed application for permission to appeal was refused.

1. The court considered the requirements of an Article 2-compliant inquest. In R (Middleton) v West Somerset Coroner & Another [2004] 2 AC 182, the obligations of the fact-finder were identified for the purposes of section 11 .5(b)(ii) of the Coroner's Act 1988 and rule 36.1(b) of the 1984 Coroner's Rules. The inquiry into how, when and where a person died includes consideration of the means and circumstances of death. The procedural requirements of Article 2, summarised in R (Smith) v Oxford Assistant Deputy Coroner [2011] 1 AC 1, include sufficient public scrutiny, independence, an appropriate role for the deceased’s relatives, and a prompt and effective investigation.

2. Although an inquest is inquisitorial, the coroner remains responsible for ensuring a full and fair inquiry, whatever position the parties or their lawyers adopt. The coroner is nevertheless entitled to look to the parties for assistance in identifying legitimate issues and relevant evidence.

3. The Ethics Committee documentation and other material relied on by Mrs Shaw had been available to the coroner and the parties and had been considered during the preparation for the inquest. The parties had treated the efficacy of the device as outside the legitimate scope of inquiry because there was no sound evidential basis for challenging it. The coroner was entitled to reach that conclusion. The documentation did not establish a causal connection between the procedure and the other deaths relied on, or show that the procedure was unproven or too risky for Mr Ewan.

4. Even if evidence of poor trial management or another procedure-related death had been established, its effect on the verdict remained speculative. The jury made clear findings that Mr Ewan had been informed of the risks and options, had given informed consent, and had undergone the procedure with the particular valve identified by the evidence. The inquest therefore left no legitimate line of inquiry unexplored and amply met the demands of Article 2. The renewed application was refused as unarguable.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused. Hallett LJ gave the reasons, with Davis LJ and Floyd LJ agreeing.
• Divisional Court of the Queen’s Bench Division: application for judicial review of the inquest was dismissed by Burnett J, with the Chief Coroner agreeing with his reasoning.