Kate Wilson discusses: Fresh inquest ordered following fundamental change in medical evidence

15th June 2018 Kate Wilson

The High Court has the power, following an application by or under the authority of the Attorney-General, to order a fresh investigation to be held where it is necessary or desirable in the interests of justice following any fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry or the discovery or new facts, evidence or otherwise (section 13(1)(b) of the Coroners Act 1988 as amended by the Coroners and Justice Act 2009 (Consequential Provisions Order 2013))

This has recently been applied in the case of Hopkins v Chief Coroner for Swansea, Neath and Port Talbot, on 6^th June 2018.

The deceased died in 2012 aged 85 at a nursing home. She had difficulty swallowing and her care needs were such that she was transferred from other nursing homes to her final place of residence. The deceased’s family argued that there had been a number of problems with her care and feeding which had caused her to choke. The witness evidence confirmed that prior to her death, the deceased had choked at the nursing home twice whilst being fed in the reclining position.

The post mortem identified the cause of death as aspiration pneumonia. The post mortem report formed part of the evidence at the inquest. However, during the course of the inquest, the Pathologist changed his conclusion about the medical cause of death from aspiration pneumonia to include an underlying cancer as a causative factor leading to the pneumonia. The Coroner concluded that the deceased had died from aspiration pneumonia caused by carcinoma of the lung.

Following the conclusion of the inquest, the Claimants obtained a further report from a consultant who concluded that the cause of death was aspiration pneumonia and that it had not been reasonable for the medical expert at the inquest to change his diagnosis.

The Claimants therefore made an application to the High Court pursuant to section 13(1)(b) to order a fresh inquest.

The application was granted. The High Court found that there were legitimate concerns as it was clear that the deceased had died of a cause that was different from what had been originally stated. It was necessary or desirable in the interests of justice for another investigation to be held. The findings of the original inquest were quashed and a new inquest was ordered.

Coroner’s decisions can be challenged by s.13 or by way of a judicial review (which must be brought within three months of the decision), whether or not a fresh inquest is sought. Section 13 does not carry such a stringent limitation period. At face value the grounds to satisfy those also appear less strict. However, an application can only be brought with the consent of the Attorney General.

The process of obtaining the consent of the Attorney General has been criticised by some as slow. There appears to be no formal guidance as to the test to be applied by the Attorney General. In a speech given in 2016[1], the Attorney General stated that the executive power to consent to the making of the application is a rare exception to the important principles of legal certainty and finality of court decisions. An important factor will clearly be whether it is in the public interest for the inquest to be reopened.

One of the most notable examples of a section 13 order for a fresh inquest is following the first inquest into the deaths at Hillsborough, Following the findings of the Hillsborough Independent Panel’s review into the disaster in 2012, the decision in the original inquest was quashed and a new inquest was heard over two years before a jury ruled that the 96 victims were unlawfully killed.

Kate Wilson accepts instructions on regulatory matters, particularly in the field of healthcare and cases involving serious and fatal injuries.

She has a particular interest in coroner’s inquests particularly those relating to deaths arising out of failures in medical care, dangerous driving and death in state custody (Article 2 Inquests).