Tainton, R (on the application of) v HM Senior Coroner for Preston and West Lancashire & Anor

At an Article 2 inquest, conduct causes death only if it probably made an actual and more than minimal, negligible or trivial contribution. An issue must be left to the jury only where evidence permits the conclusion and it would be safe to reach it.

Where admitted failures by state agents form part of the circumstances of death, their exclusion may leave the Record of Inquest materially incomplete, even though they cannot be proved to have caused the death. In an appropriate case, Coroners and Justice Act 2009, sections 5(1)(b) and 5(2), and Article 2 require a brief narrative recording those failures and explaining the absence of proven causation.

James O’Neill died from metastatic oesophageal cancer after receiving substandard medical care while in prison. The responsible NHS trust admitted that concerning symptoms had not been followed up and that proper referral would probably have produced a diagnosis about five months earlier.

At the Article 2 inquest, the coroner concluded that the evidence could not safely establish that earlier diagnosis and treatment would probably have prolonged Mr O’Neill’s life. The jury was therefore directed to return either an open conclusion or a short-form conclusion of death by natural causes. It returned the latter without recording the admitted failures.

Mr O’Neill’s mother sought judicial review, challenging both the withdrawal of causation and neglect from the jury and the omission of the admitted failures from the Record of Inquest.

1. The claim was well founded only in relation to the contents of the Record of Inquest. The coroner lawfully withheld causation and neglect from the jury, but should have directed it to record a brief narrative of the admitted shortcomings in the deceased’s medical care. The record should also have explained that those shortcomings could not be found to have significantly shortened his life.

2. Conduct causes death for coronial purposes only where it makes an actual and material contribution, meaning more than a minimal, negligible or trivial contribution. Loss of an increased chance of life is insufficient. Causation must be proved on the balance of probabilities.

3. Under the Galbraith plus test, the coroner was obliged to leave causation to the jury only if there was evidence on which a properly directed jury could reach the proposed conclusion and it would be safe to do so. Although parts of the oncologist’s evidence gave some support for a measurable extension of life, that evidence depended upon assumptions about the spread of the cancer, the deceased’s willingness to receive chemotherapy and his ability to tolerate it. The numerous unknowns made the proposed conclusion unsafe.

4. A coroner conducting an Article 2 inquest has a discretion to leave a possible but unproved cause of death to the jury. The coroner was mistaken when he doubted that this discretion existed, but he expressly considered the alternative position and lawfully declined to exercise it. The missing evidence also justified his refusal to leave a neglect finding.

5. Under Article 2 and sections 5(1)(b) and 5(2) of the Coroners and Justice Act 2009, the conclusion must give an adequate account of the circumstances of death. Here, the admitted failures by state medical staff were central evidence and part of those circumstances. Their omission made the natural-causes conclusion materially incomplete and nearly misleading, notwithstanding the absence of proven causation and the earlier public acknowledgment of the failures.

6. The ruling did not require every admitted failure to be recorded or the scope of inquests to be enlarged. The form needed depends upon the case, and a concise narrative may suffice. The coroner also lawfully decided that no prevention-of-future-deaths report was required under regulation 28 of the Coroners (Investigations) Regulations 2013, because the trust had addressed the criticisms.

7. A fresh inquest would serve no useful purpose. The proceedings and this judgment cured the deficiency. The Record of Inquest was not quashed, and no relief beyond a declaration was required.

This was a first-instance judicial review of the conclusion reached at the coroner’s inquest on 29 and 30 April 2015. Permission to apply had been granted by Judge Stephen Davies. The High Court held that the application was well founded only because the Record of Inquest omitted admitted medical failures, but declined to quash the record or order a fresh inquest.