SHAW V HM CORONER FOR LEICESTER CITY AND SOUTH LEICESTERSHIRE  EWCA Civ 294 (QB)
Surrey Personal Injury – Inquests
Child Abuse – Inquests
The deceased died in hospital in September 2007 aged 86. His daughter was appealing the decision of the Divisional Court to refuse to grant her application for judicial review of the inquest into her father’s death.
In 2007 the deceased had been diagnosed with a defective heart valve. He suffered from aortic valve stenosis, a progressive disease which could prove fatal. Treatment might be by open heart surgery, but that carried obvious risks. An alternative treatment was undertaken, known as Transaortic Valve Implantation “TAVI”. The procedure involved placing an artificial valve into the defective valve via a catheter in the femoral artery. Shortly after the new valve had been fitted, the deceased began to bleed from his aorta. It was decided to open his chest to determine the source of bleeding. Doctors did their best to stem the blood flow, and insert drains. He was then transferred to the intensive care unit, but died not long after his arrival.
His daughter argued that that investigation into his death was not sufficiently wide ranging and thorough. There was a three and a half year delay in holding an inquest. One of the reasons for the delay in holding the inquest itself was the backlog in work which confronted the Leicester City coroner, on her appointment. There was an inquest which sat for some 13 days in January 2011. He agreed to conduct an Article 2 compliant inquest, known today as a "Middleton Inquest", named after the decision in R (Middleton) V West Somerset Coroner & Another  2 AC 182 in which the House of Lords set out the obligations of the fact finder 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 jury were unable to determine the answer to the cause of the bleeding. However, they concluded that the medical cause of death was (a) heart failure following cardiac tamponade complicating percutaneous aortic valve replacement (b) coronary atherosclerosis. The jury's overall conclusion was that the deceased’s death was the unintended outcome of a therapeutic medical procedure. They concluded that he was suitable for the TAVI procedure, that he was aware of the nature of the procedure and of the risks and gave his informed consent.
His daughter sought to quash the inquisition on a number of grounds and secure an order for a fresh inquest. She did so on a number of grounds, including delay in the conduct of the inquest. Overall, she complained that there was an inadequate investigation into her father's death, both in domestic law terms and in accordance with the state's obligations under Article 2 of the European Convention on Human Rights. These complaints were considered in turn and comprehensively dismissed by the Divisional Court, whose reasoning the Chief Coroner agreed. She then tried to obtain permission to appeal which was refused on paper. There was then an oral hearing at which the judge decided to refer her case to the Court of Appeal.
Lady Justice Hallett said that the Claimant had placed reliance on the alleged failure of the assistant deputy coroner to investigate the relevance of the Ethics Committee documentation, which she submitted was a fundamental flaw in the inquiry. She argues that the documents were fundamentally relevant and should have been included for the jury's consideration. The documents demonstrated that this was a trial of an untested uncertified medical device. Both domestic and European law imposed stringent conditions for the approval of medical devices, without which she submitted they should not be used. The documentation would have established that the trial had been mismanaged and had demonstrated a number of inadequacies on the part of the device.
Second, she argued that documents relevant to the issue of informed consent and the suitability of the procedure for an elderly vulnerable patient like the deceased were not placed before the jury. If the trial was mismanaged and deaths had occurred as a result, as she alleged, and her father had been informed of this he would not have given his consent. Without this information his consent was not informed.
Hallett LJ said that when the deceased’s daughter was pressed as to why the points now taken were not taken earlier in the proceedings, it became clear that her true complaint was with her lawyers for failing to conduct the proceedings in the way she said was appropriate. All the relevant material upon which she now relied was available to the coroner and the parties and was carefully considered at the time. Her counsel was alert to the possible issue of the relevance of the documents. At the pre-inquest review in October 2010, that counsel had stated that the bereaved family accepted the coroner's provisional view that the documents from the Ethics committee were unlikely to be relevant but they wanted to give the matter further thought. He also considered carefully which documents should go in the jury bundle. When he appeared at a later pre-inquest review, he informed the coroner that as far as the bereaved family were concerned the principal issues were the positioning and choice of the valve and the issue of informed consent. The deceased’s daughter was therefore now trying to run a totally different argument from that pursued before the coroner and unfortunately it was based solely on her speculation and assertion.
The jury made clear findings of fact that her father was warned of the risks of the procedure, that he was advised as to his options and that he nevertheless consented to the operation. As for the number and size of the valves used in the trial and on the deceased, the jury made a clear finding of fact, on the basis of good evidence, as to exactly which valve was used.
The Coroner’s inquiry amply met the demands of an Article 2 compliant inquest.
Lords Justice Davis and Floyd agreed.