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Neutral Citation Number:  EWHC Admin 922
IN THE HIGH COURT OF JUSTICE CO/356/2001
QUEEN'S BENCH DIVISION CO/2613/2000
Royal Courts of Justice
Thursday, 8th November 2001
B e f o r e:
LORD JUSTICE ROSE
MR JUSTICE SULLIVAN
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CORONER FOR CITY OF LIVERPOOL
The Queen on the application of
HM CORONER FOR THE CITY OF LIVERPOOL
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Computeraided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207421 4040/0207404 1400
Fax No: 0207831 8838
(Official Shorthand Writers to the Court)
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Mr N Blake QC & Mr R Mates (instructed by Canter Levin Burg, St Helens, WA10 1QW) appeared on behalf of the claimant
Mr I Burnett QC & Mr K Morton (instructed by City of Liverpool Legal Services, Liverpool, L69 2DH) appeared on behalf of the defendant
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J U D G M E N T
(As approved by the Court)
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1. MR JUSTICE SULLIVAN: Francis Nicholls died, aged 33, in the early hours of 2nd October 1995. In these proceedings the claimant, his daughter Abigail, who is now nearly 8 years old, applies for judicial review of the inquest held into his death on 23rd25th May 2000. She asks this court to quash the verdict of death by misadventure and to order a fresh inquest to be held. There is also before the court an application under section 13 of the Coroners' Act 1988 for an order for a
2. Mr Nicholls was stopped by police in connection with an alleged traffic offence at around 5.15 pm on 1st October 1995. While he was sitting in the back of a police car he was seen to take a small plastic bag containing a light brown coloured powder from the inside of his tracksuit trousers. He put the bag to his mouth and attempted to swallow the contents. He appeared to be chewing and there were traces of powder around his lips, but a fracas then ensued during which he passed the bag to his brother, John, who had been following in another car. Mr Nicholls was taken to the police station. There, the arresting officer, WPC McKenna, told the custody officer, Sgt Goulsdon, the circumstances of the arrest, including the fact that Mr Nicholls had swallowed some brown powder.
3. WPC McKenna had herself been injured in the fracas and at around 7.30 pm she was examined by Dr Goldberg, the Force Medical Examiner.
4. There is a dispute as to what Dr Goldberg was told as to Mr Nicholls' condition. According to WPC Mckenna and Sgt Goulsdon, they informed him of the circumstances of Mr Nicholls' arrest, including the fact that he had swallowed
or attempted to swallow some brown powder.
5. According to Dr Goldberg's statement, he was merely told that the police felt that Mr Nicholls was under the influence of drugs and was asked to examine him for evidence of intoxication. Dr Goldberg examined Mr Nicholls for around 25
minutes starting at about 8 pm. Sgt Foster, who replaced Sgt Goulsdon who had been injured in another fracas, was present throughout the examination.
6. Dr Goldberg was of the opinion that Mr Nicholls was somewhat drowsy but was cooperating and fully oriented. He answered questions promptly and appropriately. He denied that he had consumed any alcohol or drugs on that day.
On examination his eyes revealed pin point pupils and he had some difficulty fixing his eyes on the doctor's moving finger. Notwithstanding Mr Nicholls denial, Dr Goldberg concluded that there was evidence of intoxication with opiate drugs
and Mr Nicholls gave consent for a blood sample to be taken.
7. The police officers present at the examination noted that Mr Nicholls dozed off during the examination, and Sgt Foster noticed that he appeared to be blue in colour.
8. Dr Goldberg recorded that Mr Nicholls was fit to be detained but was not fit to be interviewed and arranged to see him again at 7 am the next morning.
9. Mr Nicholls was taken back to his cell and there were a number of visits between 9 pm and 12.30 am the next morning. On all of the visits up to the final one, at 12.30 am, those visiting recorded that Mr Nicholls was correct, but a
number of the officers noted that he had been snoring heavily throughout the time that he was in the cell.
10. At 12.10 am Sgt Holt observed that he was lying on his back, that he had a greyish complexion and was snoring. Sgt Holt went back again 10 minutes later and noted that Mr Nicholls was still snoring. 10 minutes later, at 12.30 am, he
made another visit. When he opened the inspection hatch there was no noise and Mr Nicholls' skin had a bluish tinge to it. Sgt Holt immediately summoned assistance and resuscitation attempts commenced. An ambulance was called. It
arrived at 12.43 am and paramedics attempted resuscitation. Mr Nicholls was removed to hospital and arrived there at 12.55 am. There staff tried to resuscitate him, but to no effect, and he was pronounced dead at 1.42 am.
11. According to Dr Amir, the Medical Registrar on duty at the hospital, Mr Nicholls was most probably dead on arrival at the hospital.
12. The sample of blood taken by Dr Goldberg shortly after 8 pm was analysed, as was the post mortem sample of blood that was taken in due course by the pathologist. The antemortem sample revealed evidence of opiates at the lower
end of the range associated with fatal overdose, whereas the post mortem sample showed very nearly double the amount of opiate concentration in the blood as opposed to the antemortem sample and was within the range associated with a
fatal overdose. The pathologist established that the cause of death was a fatal overdose of heroin.
13. Initially, it was thought that the medical evidence demonstrated that Mr Nicholls must have ingested drugs whilst he was in police custody, but subsequent enquiries established that that was not the case and that the difference between
the two concentrations of opiates in Mr Nicholls's blood was explicable by the rate at which the body handles opiate drugs once they have been consumed. So it was not contended at the inquest that Mr Nicholls had consumed any further drugs
after he had arrived at the police station.
14. The Police Complaints Authority conducted an investigation into Mr Nicholls' death. In the course of that investigation they obtained a report from Dr Barry, Senior Lecturer and Consultant Physician in the Department of Pharmacology and
Therapeutics at Liverpool University. Dr Barry said in his report, amongst other things:
"In medical practice we have available a drug called Naloxone which is an opiate antagonist and reverses the action of narcotics. Naloxone can be given intravenously or intramuscularly for the treatment of narcotic poisoning. The effect of Naloxone is very rapid ... Therefore if death has resulted from an overdose of heroin it could be prevented, however, this is easy to comment on with hindsight. It must be appreciated that Dr Goldberg did review Mr F Nicholls and carried out a detailed examination lasting 25 minutes. He concluded that there was 'evidence of intoxication with opiate drugs' however he made the clinical judgment that the deceased was fit for detention in police custody. In hindsight it transpired that the deceased was not fit for detention in police custody but many physicians would have made a similar clinical judgment as Dr Goldberg. His clinical examination did not suggest to him that Mr F Nicholls required Naloxone as a treatment of respiratory depression. As Naloxone can precipitate acute withdrawal symptoms in opiate dependent patients then it is not administered without good clinical indication. I feel that this case may be a 'no fault' situation."
15. But he went on to make a recommendation:
"When clinical examination reveals 'evidence of intoxication with opiate drugs' then the possibility of respiratory depression should be considered. This raises the issue of monitoring such individuals in custody. I would suggest that close monitoring with particular attention to the level of consciousness and the respiratory rate is essential to avoid further cases like this."
16. An inquest commenced on 13th March 2000 and at that time Dr Barry's report became available to the claimant. The inquest was adjourned, because Dr Goldberg was not represented, and the matter was listed for mention on 25th April
2000 with a resumed inquest being listed for 23rd May 2000. On 25th April it became apparent that the Coroner was now intending to call Dr Barry. In his witness statement the Coroner has explained that at that stage he proposed to call Dr Barry simply to deal with the question whether Mr Nicholls obtained more drugs whilst in police custody. In any event, the claimant canvassed before the Coroner her intention to obtain expert evidence to be put before the jury to deal with two matters: firstly, whether the treatment given to Mr Nicholls was appropriate and, secondly, whether appropriate treatment could, in any event,
have prevented his death. To this end Professor Redmond, Consultant in Accident and Emergency Medicine, was instructed by the claimant to prepare a report. The report is in the form of a letter dated 4th May 2000. Having set out his very
considerable qualifications (he is currently Emeritus Professor of Emergency Medicine at Keele University), Professor Redmond commented upon the actions of Dr Goldberg. He said this:
"I am not a police surgeon/forensic medical practitioner. Another police surgeon can comment on what a police surgeon might commonly do or not do in similar circumstances. I will comment on the standard of care that was given, drawing on my experience of emergency medicine and in particular my experience of the type of patients brought to A&E departments and the general standards expected of medical practitioners in the management of emergencies."
17. He said:
"It is accepted that the deceased was acknowledged to have taken narcotics. Dr Goldberg recognised disordered speech and pin point pupils the former indicative of and the latter diagnostic of opiate/narcotic ingestion."
18. He then said this:
"Morphine is absorbed into the bloodstream in 1520 minutes so if absorption is continuing, deterioration in the patient's condition will be seen within half an hour and certainly by one hour. A doctor acting to a reasonable standard would have ensured the patient's condition was reassessed in one hour. This would ideally take the form of counting the respiratory rate and counting it again one hour later.
If it didn't change or was getting faster the maximum absorption of opiate had passed.
If it was getting slower opiates were still being absorbed and further action was required."
19. There is then a discussion of who might be asked to rouse the prisoner, and the report continues:
"I ... would consider from my own experience that any doctor acting reasonably would have checked on the patient himself one hour later. If the level of consciousness had not improved and/or the respiratory rate had not improved, I would have expected that doctor to arrange the immediate transfer of the patient to hospital.
Opiate poisoning is readily reversed with naloxone. His death was therefore entirely preventable ... Any doctor prepared to treat emergencies must carry naloxone. When faced with a patient who has clearly taken a narcotic, any doctor acting reasonably would consider giving naloxone. The only reason to withhold naloxone would be if the patient was getting better. The doctor would only know this if he reviewed him one hour later and in particular reassessed conscious level and most importantly respiratory rate.
In my view failure to reassess the patient adequately one hour after the initial examination was a failure to deliver a standard of care this man could have expected from another doctor in the UK acting to a reasonable standard."
20. The claimant's solicitors sent a copy of this report to the Coroner, and the Coroner replied in a letter dated 10th May 2000, setting out the terms of Rule 42 of the Coroners' Rules 1984 and going on to say:
"Professor Redmond is an eminent Consultant and Specialist in Emergency Medicine. At the top of the second page of his report he makes it clear that he is not a Police Surgeon/Force Medical Practitioner. His opinion is clearly based upon his experiences of emergency medicine and the general standard expected of General Practitioners in the management of emergencies. In the penultimate paragraph of his report he states that in his opinion there 'was a failure to deliver a standard of care this man could have expected from another doctor in the United Kingdom acting to a reasonable standard', presumably a reasonable standard of an eminent Consultant in Accident and Emergencies. In the circumstances I do not intend to call Professor Redmond to give evidence. His expert opinion evidence, though possibly relevant for other jurisdictions, is not evidence that will assist the Jury to ascertain by what means Francis Nicholls came by the medical cause of his death."
21. When the inquest was resumed on 23rd May, counsel on behalf of the claimant applied for an adjournment so that Professor Redmond could be called to give evidence. The Coroner repeated his view that Professor Redmond was not
suitably qualified to comment on the actions of Dr Goldberg and the application to adjourn was rejected, essentially for three reasons which are to be found on page 26 of the transcript of the inquest. Those three reasons were, firstly, delay. The
Coroner said this:
"I am mindful that Mr Nicholls died on 2nd October 1995 ... It is outrageous and unfair to everyone involved in this case but perhaps more so the family ... It's outrageous that his case has taken the best part of 5 years to come to a final hearing."
22. I should interpose here to make it quite clear that the very long delay was no fault whatsoever of the Coroner, who was appointed only in 1999 and has clearly been making strenuous efforts to clear what appears to have been a substantial
backlog of long outstanding cases. The second reason was that:
"Professor Redmond's report particularly in the final paragraphs refers to standard of care and reasonableness of the actions of a doctor, things that are more in line with Donohue and Stephenson as opposed to the concept of neglect or lack of care."
23. The third reason was:
"I am also concerned with regard to the expertise of Professor Redmond. Though I do not doubt that what he says is right for an expert in emergency medicine and for an academic working in emergency medicine, I'm not sure it is fair and reasonable to judge the standards of a police surgeon performing the field by those of such an expert."
24. The Coroner then repeated his view that questions of civil liability should be properly pleaded in a case before a judge.
25. The inquest proceeded. At the conclusion of the evidence and prior to the summing up the claimant's application was renewed. The renewed application was refused, essentially for the same three reasons.
26. The Coroner, having referred to the question of neglect, dealt in some detail with the relevant authorities and concluded by saying this:
"Having said that, from all the authorities it's become clear there must be evidence both of gross failure on behalf of those caring for the deceased and that causation in relation to the death by such gross failure was established. It must also be continuous or at least nontransient neglect. It seems to me that those are the areas where the case is distinguished depending on the facts of the case."
27. After some further observations he said:
"I am not satisfied that there is sufficient or any relevant evidence to support a conclusion of neglect so as to leave to the jury."
28. On behalf of the claimant, Mr Blake QC submits that where, as in the present case, death occurs in custody, it is of particular importance that the Coroner ensures 'that the relevant facts are fully, fairly and fearlessly investigated': see R v
HM Coroner for North Humberside and Scunthorpe ex parte Jamieson  QB 1, Sir Thomas Bingham MR's General Conclusion (14) on page 26.
29. The decision not to call Professor Redmond meant that, however fairly the proceedings were conducted, there could not be a full enquiry into how Mr Nicholls met his death. In particular: no expert evidence was called on whether the
symptoms described by Dr Goldberg were such as to have required a reasonably competent practitioner to have monitored Mr Nicholls' respiration rate at the time of the examination and for a period thereafter; no expert evidence was called as to
when an antidote to morphine poisoning should be administered; and, no expert evidence was called on whether the administration of the recognised antidote would most probably have prevented Mr Nicholls from dying from morphine
30. Mr Blake submits that the three reasons given for not calling Professor Redmond do not stand up to scrutiny. Dealing firstly with Professor Redmond's expertise, on the face of his letter of 4th May 2000 Professor Redmond was not purporting to judge Dr Goldberg by the standards of a very distinguished Professor of Emergency Medicine. There are repeated references to the conduct to be expected of "any doctor", what "any doctor" acting reasonably would have
31. Professor Redmond's potential contribution to the inquest was apparently refused precisely because he was so well qualified. Indeed, the Coroner observed, at page 88 of the transcript, that he might have been more persuaded to accept
evidence of a similar kind if it was to be given by an experienced police surgeon, thus acknowledging its relevance.
32. Secondly, delay. The death in this case had occurred in 1995. The inquest was being held some four and a half years later in 2000. There had already been a short adjournment. Understandably there would be a wish for no further delay, but that could not be allowed to override the fundamental obligation to conduct a full and fair enquiry.
33. Thirdly, so far as the views of Professor Redmond being expressed in terms of negligence rather than neglect, he acknowledged that a Coroner's inquest was not the proper place to investigate civil liability, but submitted, in essence, that the
borderline between medical negligence and neglect was a matter for the jury to determine having heard all of the relevant evidence.
34. The complaint here was not of a failure to carry out some highly sophisticated or complex medical procedure. It was, in essence, that in view of what he was or should have been told by the police as to Mr Nicholls' condition, and what he
himself observed of Mr Nicholls' condition in the 25 minute medical examination, Dr Goldberg should have ensured that Mr Nicholls' respiratory rate was checked after an hour or so, rather than then sending him to his cell to await a further
examination at 7 am the next morning.
35. Mr Blake concedes that upon full investigation Dr Goldberg may well have an explanation for his conduct, indeed one was provided during the course of crossexamination at the inquest, but he says that Professor Redmond's view, Dr
Barry's view and Dr Goldberg's explanation were all matters that should have been explored in front of the jury for there to be a " full" enquiry.
36. So far as causation is concerned, he submits that a death is caused for the purpose of an inquest when a factor has materially contributed to the death, whether by commission or omission, and the causative approach is the same
whether the potential verdict is gross negligence manslaughter or aggravation by neglect. A clear and direct causal nexus is made out where lack of medical assistance deprived the deceased of a real opportunity of recovery. The question
is not whether the lack of such attention was the only cause, but whether it was a material contributing cause.
37. It is submitted, therefore, that how the death was caused required a jury to examine whether it was preventable by the administration of the antidote and whether or not the evidence established that a rider of neglect should be added to
the verdict. Further, it is submitted that it is in the public interest that a fresh inquest properly examine such matters, quite irrespective of the likelihood of a different verdict.
38. On behalf of the Coroner, Mr Burnett QC did not seek to justify the first of the reasons given by the Coroner for refusing to call Professor Redmond, the Professor's expertise.
39. So far as the question of delay is concerned, he pointed out that this was an exceptional inquest, the Coroner was dealing with events that were, by then, approaching five years old. There had been considerable delay. Further delay would be undesirable. For example, if Professor Redmond had been called, then the other parties would probably have sought to call evidence in rebuttal, thus leading to a further adjournment. These were matters which the Coroner was entitled to take into account.
40. The essential ground, however, on which the Coroner was entitled to refuse to call Professor Redmond was that his report went to negligence not neglect and could not, on any basis, have been the foundation for a verdict of neglect.
41. He reminded the court of the Coroner's discretion as to the evidence that he chooses to call at an inquest, and of the fact that the court's role is one of review. The question is whether any Coroner on the material available to him could have
concluded that it was inexpedient to call Professor Redmond.
42. He too refers to Jamieson for the purpose of reminding the court of the Master of the Rolls' second general proposition that in the question, how the deceased came by his death:
"... 'how' is to be understood as meaning 'by what means'. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and farreaching issues, but 'how ... the deceased came by his death', a more limited question directed to the means by which the deceased came by his death."
43. He points to the third general conclusion:
"It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame."
44. In that context he referred to R v HM Coroner for Birmingham ex parte Cotton (1995) 160 JP 123, which makes the point that the Coroner's court is not the proper place to explore questions of clinical negligence. It is axiomatic that the
inquest should not be used as a stepping stone to civil litigation: see Steyn LJ, as he then was, in R v Inner South London Coroner ex parte Epsom Health CareNHS Trust (1993) 158 JP 973 at 978.
45. He submitted that the concept of neglect could be distilled from Jamieson into a number of propositions, that is to say: selfneglect is a gross failure to take adequate nourishment or liquid, obtain basic medical attention or adequate shelter
or warmth; neglect is the obverse of selfneglect; neglect means a gross failure to provide or procure basic medical attention for someone in a dependent position; the need for the basic medical attention must be obvious; the crucial consideration
will be what the condition of the dependent person appeared to be; neglect can rarely, if ever, be an appropriate verdict on its own. It may be factually accurate to say that neglect contributed to a death; neither neglect nor selfneglect should
ever form part of a verdict unless a clear and direct causal connection is established between the conduct so described and the course of death.
46. Against that background, it is submitted that Professor Redmond's evidence does not support a verdict incorporating neglect, it is couched in terms of civil negligence; his final conclusion addresses the Bolam test. Neglect is a different animal from negligence, it is the obverse of selfneglect. It concerns basic medical attention and requires a failure that can sensibly be described as "gross". It is not concerned with a single error or mistake and the need for medical attention must be obvious. Whatever may be the accurate description of Dr Goldberg's conduct, it cannot be said that he neglected Mr Nicholls. It is submitted that his condition was not such that it obviously called for basic medical attention.
47. So far as causation is concerned, Mr Burnett relied heavily upon the 12th general conclusion in Jamieson, the requirement for "a clear and direct causal connection" to be established between the conduct that is complained of and the cause of death, and submitted that no such connection existed in the present case because what was complained of was Dr Goldberg's failure to arrange a respiratory count at about 9.30 pm. The causal connection required a number of steps: first, that the respiratory rate was depressed; second, that as a result of that either the police or Dr Goldberg would have arranged the deceased's transfer to hospital; thirdly, that having got to hospital, Naloxone would have been administered; fourth, that it would have had the desired effect. Therefore, he says, there is not a clear and direct connection. He particularly draws attention to the fact that there is no evidence that Mr Nicholls' respiratory rate was depressed at about 9.30 pm. Professor Redmond does not suggest that it was and the reality is that noone can possibly know. It is simply a matter of pure speculation which breaks the chain of causation.
48. Looking at the matter overall, he submits that no fresh inquest is necessary or desirable because the verdict would be no different; that is to say, neglect as an adjunct to another verdict would not be appropriate. He accepts, however, that the possibility of a different verdict being reached is not conclusive of the matter, but invites the court to have regard, in any event, to the time that has elapsed from the events in question and the fact that these matters have already been ventilated to some degree during the course of the inquest, for example, Dr Goldberg was crossexamined by counsel on behalf of the claimant, and he points the court to the possibility that the verdict of misadventure alone could be quashed leaving an open verdict.
49. I accept Mr Blake's submissions. In my judgment, none of the three reasons given by the Coroner for not calling Professor Redmond to give evidence can be sustained. Professor Redmond's very considerable expertise weighed in favour of calling him to give evidence rather than the reverse. His report does not purport to judge Dr Goldberg by the standards of an Emeritus Professor of Emergency Medicine, but by the standards of "any doctor acting reasonably".
50. No doubt calling Professor Redmond might well have led to a further adjournment, but the death was by then four and a half years old. There had been an adjournment in March 2000 to enable Dr Goldberg to be represented. Whilst further delay would certainly have been undesirable, there could have been no sensible objection to a further short adjournment measured in weeks or perhaps one to two months. There is no indication that a lengthier adjournment would have been required or that the position of any of the parties would have been prejudiced in any particular way beyond the obvious point that any further delay
in a long outstanding case was to be deplored.
51. I turn then to the Coroner's principal reason for refusing to call Professor Redmond; that his report was concerned, on its face, not with neglect, applying the Jamieson test, but with medical negligence, applying the Bolam test.
52. Notwithstanding Mr Burnett's submission that neglect and negligence are two different "animals", there is, in reality, no precise dividing line between "a gross failure to provide ... basic medical attention" and a "failure to provide ... medical
attention". The difference is bound to be one of degree, highly dependent on the facts of the particular case.
53. Standing back and looking at the facts of the present case, one starts with a death in custody. As the then Master of the Rolls said in Jamieson , such deaths rightly arouse acute public concern. Professor Redmond's report stated that this
death in custody was "entirely preventable" by steps that could have been expected of any doctor acting to a reasonable standard.
54. Such a statement in respect of the death of a person in custody pointed to a need for the fullest investigation. The steps that Professor Redmond was suggesting would have been taken by any doctor acting to a reasonable standard were neither complex, nor sophisticated. They amounted to doing no more than checking the patient's respiratory rate and then arranging for it to be checked after about another hour, rather than simply leaving the patient until the next morning. I would regard undertaking or arranging for such checks to be undertaken as capable of falling within the provision of "basic" medical attention. There is a dispute as to what Dr Goldberg was told by the police: was he merely told that they suspected that Mr Nicholls was under the influence of drugs or was he told, as he certainly should have been if adequate procedures had been in place, that Mr Nicholls was thought to have ingested drugs. That plainly was an aspect of the matter that required investigation.
55. The differences between Dr Barry and Professor Redmond are within a fairly narrow compass. Both are agreed as to the efficacy of Naloxene if administered at the appropriate time. Far from Dr Barry considering that checks on respiratory rate are unnecessary, he made a positive recommendation that in the future arrangements should be set in place to ensure that they were. Dr Barry and Professor Redmond differ only on the question whether Dr Goldberg should, on the material available to him, have undertaken or arranged for such checks to be made. The fact that such a professional difference exists was, in my judgment, no reason for not calling Professor Redmond, conducting a full enquiry, and leaving the matter to the jury, subject to the state of the evidence following crossexamination, and questioning by the Coroner.
56. So far as causation is concerned, the court was referred to a number of authorities by Mr Blake and Mr Burnett. I find it unnecessary to refer to those authorities given the particular facts of this case. In my judgment, it is important not to read the Master of the Rolls' words in Jamieson as though they were contained in an enactment, or to apply them in an over literal manner.
57. It is perfectly true that we do not know what Mr Nicholls' respiratory rate was at 9.30 pm. We do not know because Dr Goldberg did not arrange for it to be checked. It will be a common feature of cases where the neglect alleged is a failure to examine the patient that it will not be possible to know precisely what would have been found had there been an examination. I am unable to accept Mr Burnett's submission that the intervening steps referred to a finding that the respiratory rate was depressed, the police or the doctor thereupon making arrangements to take Mr Nicholls to hospital, Naloxone being administered and being successful, represent sufficient breaks in the chain so as to prevent there being a "clear and direct causal connection" between a failure to arrange to have a check made upon a patient and the patient's death.
58. There is no complex chain of events here. One is dealing with the consequences of failing to make a simple check. There is, in truth, no real dispute between Dr Barry and Professor Redmond as to what would have happened if Mr
Nicholls' respiratory rate had been checked. They differ as to whether any doctor acting reasonably would have checked. The inescapable background fact is, of course, that Mr Nicholls died around about 1 pm, just a few hours after Dr
Goldberg had said that he was well enough to be returned to his cell until 7 am the next morning.
59. In my judgment, this is one of those cases where, notwithstanding the delay, the public interest demands a full enquiry, and a full enquiry has not been held. For these reasons, I would allow the application for judicial review, quash the verdict of death by misadventure, and order a fresh inquest under section 13 of the 1988 Act.
LORD JUSTICE ROSE: I agree with my Lord's conclusions and with the order that he proposes and for his reasons in relation to that conclusion and order.
Is there any reason why this Coroner should not conduct the new inquest?
MR BLAKE: My Lord, no.
LORD JUSTICE ROSE: No. Then we shall direct that the same Coroner conduct the inquest.
MR BLAKE: I am obliged.
LORD JUSTICE ROSE: Anything else?
MR BLAKE: Apart from an application for Community Legal Services full assessment, I have no other application to make in respect of costs in the light of the regrettable history of this case.
LORD JUSTICE ROSE: We make that order, Mr Blake.
MR BLAKE: I am obliged.
LORD JUSTICE ROSE: Thank you.
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Last modified: Monday, 09-Aug-2004 08:53:06 BST by: Malcolm Bishop