R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin)
This article originally appeared in Issue 3 (November 2019).
The facts
The Divisional Court heard a challenge to a coronial determination that it was not safe to leave the issue of any potential causal link between an admitted 26 minute delay in an ambulance response, and the subsequent death of the Deceased (Mr Bibby) from a cardiac arrest. At the inquest in respect of his death, the jury heard evidence from a consultant in Critical Care & Emergency Medicine (Dr Andrews) that, had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury.
Expert Evidence
The medical cause of death was deemed by the pathologists to be “1a unascertained.”
Dr Andrews’s report noted that it was impossible to reach a clear diagnosis as to the cause of death – but the most likely cause was arrhythmia. He stated that had the paramedics arrived and commenced CPR within an earlier time after the onset of cardiac arrest, then the overall rate of return of the circulation in a group of such patients with a cardiac arrest would have been approximately 25% with an overall survival to hospital discharge of 12%, accordingly:
“His chances of survival would have initially modestly but incrementally increased from the paramedics arriving at an earlier stage of cardiac arrest, through arriving before the onset of cardiac arrest through to the patient arriving in the Emergency Department (ED) prior to any cardiac arrest… However, “By the time the paramedics actually reached this patient, his chance of survival was zero as essentially he was already dead and any attempt at resuscitation would have been futile given the most likely cause was an arrhythmia…Had he arrived in an Emergency Department in a very timely manner, and still alive then in my opinion his chances of survival would have increased very significantly above zero and it is likely he would have more than likely survived rather than die.”
The coroner ruled that:
“having noted Mr (sic) Andrews’ evidence on survivability, it seems to me that, in the absence of knowing the medical cause of death, it would be unsafe to put before this jury the possibility of returning any neglect rider. It cannot be established, in my judgment, that the rendering of care would have prevented the death if we do not know what the cause of death was. Further, I am not at all satisfied that the conduct (and I deal with this generally) of the police and/or ambulance personnel is capable of amounting to a gross failure for the purposes of neglect.”
Galbraith Plus
The Divisional Court reiterated the central relevance of both limbs of the Galbraith Plus test when considering what issues can safely be put to the jury. The Court cited Haddon Cave J’s summary of the test in R (Secretary of State for Justice) v HM Deputy Coroner for the Eastern District of West Yorkshire [2012] EWHC 1634 (Admin), to the effect that (1), the coroner is required to apply an evidential filter and ask whether there is evidence upon which the jury properly directed could properly reach the particular finding. This being the test used by a Crown Court judge in determining whether to leave a criminal charge to the jury: R v Galbraith (1981) 73 Cr. App. R. 124, CA; and (2) the coroner is also required to apply a wider and more subjective filter taking into consideration the coronial context as whether it would be safe for the jury to reach the conclusion or finding upon the evidence. The Court held that this particular case concerned the second limb as the coroner accepted that there was evidence of a possible causal link between the delay and death, but nevertheless deemed it unsafe to leave the issue to the jury to find causation based on that evidence.
Causation
The Divisional Court also reiterated the familiar principles of causation found in R (Tainton) v HM Senior Coroner for Preston & West Lancashire [2016] EWHC 1396 (Admin), R (Lewis) v Mid & North Shropshire Coroner [2009] EWCA Civ 1403, and in R (Khan) v HM Coroner for West Hertfordshire [2002] EWHC 302 (Admin):
- The threshold for causation of death to be established is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death. (Tainton)
- A coroner also has a discretion, but not a duty, to leave to the jury causes of death that are merely possible but not probable. (Lewis)
- Where common sense and legitimate inference cannot ground a finding of causation, medical evidence as to whether there would have been a contribution to death is required if the jury are not to be reaching a conclusion based on impermissible speculation (Khan).
The Divisional Court noted that in the different, but related area of clinical negligence, that any claim for clinical negligence had to be proved on the balance of probabilities and, if it cannot be so proved, then no separate action lies upon proof of a reduced chance of a positive outcome.
The Divisional Court also considered the validity of Dr Andrews’s use of statistics and held that in applying the second limb of the Galbraith Plus test a coroner must have regard to all relevant evidence. In addition to evidence relating to the particular deceased and the circumstances of his or her death, that could include general statistical evidence drawn from population data such as the rate of survival in a particular group. Such general statistical evidence alone was, however, unlikely to be sufficient. A raw survival rate for the group into which (without the relevant event or omission) the deceased is said to fall, was unlikely to be sufficient even where the rate is over 50%, because, without evidence supporting the proposition derived from the population data , a jury could not safely conclude that he or she would have fallen into the category of survivors. Being a figure in a statistic does not of itself prove causation.
The Divisional Court concluded that:
“In most cases, there will be other evidence as to whether the deceased probably would or would not have fallen in the group of survivors. Where there is apparently credible additional evidence of causation which, if accepted, together with the general statistical evidence could properly lead the jury to find on the balance of probabilities that the event or omission more than minimally, negligibly or trivially contributed to death then it will usually be proper and safe to leave causation to the jury.”
After considering Dr Andrews’s evidence, the Court held that it was based on a case specific analysis and not just on statistics. Accordingly, the Coroner was wrong not to leave the issue of delay to the jury.
Comment
The Divisional Court’s judgment is a very useful re-statement of the key principles that advocates can draw upon when using the requirement for the Galbraith Plus to be satisfied as a route by which the coroner can legitimately be addressed as to whether there is any evidence that a particular act or omissions would have occurred as a necessary precursor to that act or omissions on a balance of probabilities having a more than minimal causative effect on the death in question. The judgment also at least implicitly suggests that expert medical evidence will be required where there is a question of whether a delay in treatment more than minimally contributed to death.
