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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Heseltine, R (on the application of) v Coroner's Office [2010] EWCA Civ 267 (16 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/267.html Cite as: [2010] Inquest LR 87, [2010] EWCA Civ 267

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IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE WYN WILLIAMS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th February 2010

Lord Justice Sedley:

1. This is a renewed application for permission to appeal against the refusal of the Administrative Court to allow proceedings to go ahead for judicial review. The proceedings which it was desired to bring were those of Mr Jeffrey Heseltine, who has appeared before me today in person. The principal respondent was the coroner who was responsible for the inquest on Mr Heseltine's late wife, Jean.
2. Mrs Heseltine was diagnosed with polycystic kidney disease as long ago as 1978. She did not, however, have to go on to dialysis until 2001, and she was still on dialysis at the time of her death in 2005. In October 2004, however, she suffered a stroke. She was admitted to the Royal Oldham Infirmary and in January 2005 was transferred to the Manchester Royal Infirmary. She continued to deteriorate to some extent and began to be treated with Septrin. When there was no response to this treatment, cancer was suspected and was later diagnosed. Meanwhile, however, she suffered a hip fracture and was too ill to undergo surgery for it.
3. It was in early June that indicators of metastatic disease were identified, and not long afterwards, on 23 June 2005, Mrs Heseltine died at the age of 66. The diagnosis of the primary cause of death was cancer. This Mr Heseltine has never accepted. He considers and has considered ever since his wife's death that she died because of bad treatment in hospital and, in particular, that the bone lesion, which certainly did her no good and probably accelerated her death, was itself caused by aluminium poisoning.
4. All of this became known to the coroner. Mr Heseltine made sure of that -- and the then coroner arranged a postmortem at Wythenshawe Hospital, that being, as it needed to be, a hospital administered by a different NHS Trust from the Manchester Royal Infirmary.
5. This postmortem took place seven days after Mrs Heseltine's death, and the conclusion of the pathologist was that the cause of death was disseminated adenocarcinoma, that is to say cancer, in the presence of adult polycystic kidney disease. Mr Heseltine was not satisfied with this report. He commissioned his own post-mortem, which was conducted by Dr Shorrock, a well known Home Office pathologist, in early August. He knew of Mr Heseltine's concerns but his conclusions were essentially the same as those of Dr Howe, the first pathologist. Neither of these doctors considered that there was sufficient evidence that the bone lesions had been caused by aluminium.
6. That being the situation, and the presence of cancer being a sufficient explanation of Mrs Heseltine's death, Dr Sharp did not have bone samples taken for biopsy. There the matter rested. However, in September of that year a new coroner took office, and in the autumn of that year he held a pre-inquest hearing. At that hearing Mr Heseltine asked the coroner to sit with a jury. This the coroner declined to do. Mr Heseltine also put to the coroner the possibility of grossly negligent medical treatment including in particular maladministration of drugs. Alerted by this allegation, the coroner quite properly referred the matter to the police and the police carried out their own investigation. The upshot of that investigation was that it was not considered appropriate to bring any criminal charges against anybody.
7. But the coroner did something further. He arranged for a third postmortem examination , this time by Dr Charles Wilson, another Home Office pathologist, who had no connection with the material hospital trust. It was by now 2008. On 28 January of that year the third postmortem was carried out. Mr Heseltine was not allowed to attend it, for a number of reasons, but it is sufficient that in the coroner's view there was no good reason for him to be there. Dr Wilson found himself broadly in agreement with the other two pathologists as to the cause of death. It was then that Mr Heseltine sought judicial review of the coroner's decisions to which he took exception. He lodged his application on 1 December 2008.
8. I pause here to say that that application was on the face of it many months out of time. While in their acknowledgement of service the coroner's lawyers drew attention to this discrepancy, they took no point on it. That was an act of decency on their part. I therefore proceed to the substantive merits of the case, as the judges below were invited to do, without pausing to see whether there is any excuse, which there appears not to be, for the lapse of time beyond the three-month limit.
9. The application for judicial review came initially before Mr Rabinder Singh QC, who on the papers considered there was no viable case. Mr Heseltine exercised his right to renew the application, and it came before Wyn Williams J at an oral hearing at which Mr Heseltine was allowed to be represented by a Miss Rayne, who had come as a McKenzie friend. Wyn Williams J also refused the application.
10. Mr Heseltine then applied to this court for permission to appeal against Wyn Williams J's decision. On consideration of the papers Sir Scott Baker held that there was no prospect of a successful appeal. Today, exercising his last opportunity, Mr Heseltine applies to me for reconsideration of that decision and submits that there are indeed good reasons for giving permission to appeal, those reasons being the same reasons as the reasons why there was a good application for judicial review which should have been allowed to go ahead in the first place.
11. In the meantime the coroner has sat. He sat without a jury on 11/12 January and returned a verdict of death by natural causes.
12. The grounds of appeal were, I am told, settled by Miss Rayne, who no longer features in these proceedings, and Mr Heseltine has very sensibly abandoned those which are not really going to be of substantial use to him and concentrated on two or possibly three issues.
13. The first is the refusal of the coroner to summon a jury. Contrary to what was the case in Dickens' time, when a coroner always sat with a jury (and usually sat in the back room of a pub), coroners sit in a much more judicial setting today, behave more judicially and are only required to summon a jury in broadly two sets of circumstances. By section 8(3) of the Coroners Act 1988, the coroner is obliged to summon a jury if it seems to him that there is reason to suspect, among other things, that the death was caused by poisoning or that it has occurred in circumstances possible recurrence of which is prejudicial to the health or safety of the public or in a section of the public.
14. Secondly and separately, the coroner has a discretion to summon a jury: "if it appears ... that there is any reason for summoning a jury". In this case no such reason appeared to the coroner, and nothing has emerged from the papers which suggests that there was so obvious a case that he was bound to summon a jury. The case Mr Heseltine advances is that he was obliged to summon a jury because he had an obligation under section 8(3) to do so.
15. The first of the possible reasons that I mention, poisoning, I will come back to in a moment. The second, which is where Mr Heseltine started his argument, is the occurrence of something which has a possible impact on the public generally or a section of the public, in this case the people who find themselves in an NHS hospital. That, I accept, is a section of the public.
16. The requisite then is that there must be in the material before the coroner reason to suspect that circumstances of death were circumstances which, if they recurred, would affect other patients in NHS hospitals. That really merges with the other ground, which is Mr Heseltine's suspicion that his wife died of aluminium poisoning, because it is that which, if it was caused by maladministration of drugs or any other form of mistreatment, both features by itself as a reason to summon a jury and gives cause for concern that it would affect other members of the public if it recurred.
17. So I turn to the critical question: was there evidence which was sufficient for the coroner to suspect -- it had to be no more than that -- that Mrs Heseltine had not died of cancer but, whatever the future might have held for her at the time, of the maladministration of her treatment? As I have recounted, none of the three pathologists who examined her body thought that this was a cause. Mr Heseltine says that the occurrence of medical accidents in hospitals is thought, by many people at least, to be far higher than it should be and a matter of public concern, but that does not make it more likely than not that any single death in hospital was caused by medical accident. There has to be some independent evidence of it. Essentially Mr Heseltine's case appears to me to be that one cannot eliminate aluminium poisoning without a bone biopsy, and none was done.
18. That is a criticism I understand, but I think there are two reasons why it does not go far enough to bring about an obligation to summon a jury. One is that a bone biopsy is a public expense which has to be justified. The other is that none of the three pathologists' reports, nor anything else outside the suspicions that Mr Heseltine himself entertained, gave rise an objective possibility of aluminium poisoning. I do not say (I do not think anybody would be bold enough ever to say) that such things are not possible. Of course they are, but there has to be some hard evidence of them before there is reason to suspect them so as to make it incumbent on the coroner to summon a jury.
19. When it came to the inquest, Mr Heseltine tells me that, although he was present and able to give evidence, the independent witness who he had hoped would give evidence to support his contention was unavailable and the coroner agreed to read that witness's evidence instead. That seems to me to be a perfectly appropriate way to proceed, particularly because the coroner did, I understand, offer him the possibility of an adjournment to summon a witness if need be. The other thing that disturbed Mr Heseltine -- and I have only his account of it, which I have no reason to disbelieve -- is that he says that after the coroner had adjourned before giving his verdict he returned to court with a piece of paper which he said was a drugs chart that had just come to hand but which he neither showed Mr Heseltine nor took into account so far as could be seen in his verdict. If that is so, it perhaps created an unfortunate sense of mystery; but without some evidence of its content and that it was capable of filling the gap which there otherwise is in the evidence, I am afraid the case still stands where I left it a moment ago, that is to say that there is no more than Mr Heseltine's own suspicion unsupported by any medical evidence that there may have been some intervening cause of death other than the cancer which was diagnosed by a pathologist.
20. For these reasons, I am afraid that I am not able to give Mr Heseltine permission to appeal. It seems to me that, understandable though his concerns are, they do not amount to a case in law. May I say this to him as well. He was ordered, as he well knows, by Mr Rabinder Singh, the deputy High Court judge, to contribute £500 towards the coroners' costs in preparing a statement in opposition. As Mr Heseltine accepts, that was actually a very modest charge, but it is a taste of what is to come if one goes ahead in this court with a case which is not going to succeed. All I would be doing if I gave Mr Heseltine permission to appeal would be to send him into a hideously expensive piece of litigation against a party which would not only be well represented by lawyers, as he knows, but which, for the reasons I have given, would be bound to win. I would be doing Mr Heseltine no favours at all if I exposed him to the kind of crippling costs which a defeat in this court with the other side represented would involve. I hope therefore that he will understand that it is as much for his good as for anybody else's that I refuse permission to appeal for the reasons I have given.
21. I end by thanking Mr Heseltine for his helpful and courteous submissions and extending my sympathy to him in his loss.

Order: Application refused