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September 8, 2017

Did the Coroner have the right body?

In a scenario rarely encountered in the Coroner’s court, this is what happened in the case of R (on the application of Heinonen and another) v Coroner For Inner South District Greater London [2017] EWHC 1803 (Admin).

The applicant sought judicial review of the Senior Coroner for Southwark’s refusal to order a further investigation into the death of Simona Heinonen on the basis of mistaken identity.

Simona, who was born in 1988, suffered from a rare and incurable type of progressive brain stem tumour. Towards the end of her life, she experienced increasing difficulties in swallowing, and increasing shortness of breath. On 9 March 2016, she was admitted to King’s College Hospital. The level of care provided through to her death on 20 March, was the subject of extensive criticism from the family.

Her family requested a post-mortem examination (to establish whether the cause was the ingestion of stomach fluids). The medical staff at the hospital also wanted a post-mortem to see whether the brain tumour or pneumonia should be recorded on the death certificate.

The coroner, therefore, became involved and Dr Bodi conducted a post-mortem on a body said to have been that of Simona. The examination revealed bilateral pneumonia and a large brain stem gliat tumour. The conclusion was drawn that the cause of death was brain stem glioma and pneumonia. The body was identified by name bands on the wrists.

However, there were anamolies between the findings of the Pathologist and the appearance of Simona.

The post-mortem report describes the height of the woman examined as being 1.72 metres (Simona was 1.62 metres tall), she was a white Caucasian young female with an appearance consistent with Simona’s age of 27. She had grey eyes (Simona’s were brown), and brown long hair (Simona’s was light brown). Furthermore, the scars did not match; they were of different lengths, shapes and in different locations.

Simona’s family raised questions about all these matters with the coroner, but despite extensive correspondence and the pathologist’s statement that he could “confidently say that we performed the post-mortem on the right body”, they did not receive an answer that satisfied them. The family asked the coroner to open an investigation into the matter. However, the coroner’s powers are circumscribed by statute.

In order to open an inquest, the coroner would have to have reason to suspect the deceased died an unnatural death (s1(1) of the Coroners and Justice Act 2009). Once the cause of a person’s death is known and it appears to be a natural death, then the coroner has no power to investigate the death any further, and must discontinue such investigation under section 4 of the Act. He has no power to open an investigation into someone’s death on the basis that the post-mortem examination may have been carried out on the wrong body.

Given the pathologist provided a clear conclusion as to the cause of Simona’s death, the coroner said the requirements of section 4(1)(a) of the 2009 Act were satisfied.

The coroner offered the family the opportunity to order a second autopsy and ordered that the medical records be made available should they wish to provide further medical evidence and seek legal advice.

The coroner acceded to requests for access to brain samples for DNA analysis. However, that testing does not appear to have been carried out.

The coroner made the decision to notify the Registrar of Death, that he did not consider it necessary to hold an inquest into Simona’s death, and to issue Form B certifying that a post-mortem had been carried out under section 14 of the Coroners and Justice Act 2009. It is the latter aspect of the decision that the claimants challenged. The remedy being sought; that the coroner “remove the considerable doubt that the subject of the autopsy is… Simona…”.

The single judge refused permission saying the coroner’s decision, being a matter of discretion, was only open to challenge on the basis that it was Wednesbury unreasonable, and there was “ample basis” for the conclusion that the coroner had reached on the issue of identity, supported by name tags and the presence of what the pathologist had described as “a very rare brainstem glioma”. The judge also referred to the fact that the tissue samples had been made available to Simona’s mother so that she may have the DNA in those samples checked. 

In the renewed application it was contended that it is at least arguable with a real prospect of success that the coroner’s decision was Wednesbury unreasonable. In short, the coroner failed to take into account material factors, namely the physical discrepancies and he trusted the pathologist’s word that he had carried out the autopsy on the right person, bearing in mind that the hospital specialises in the treatment of brain tumours. Furthermore, even though the subject of the post-mortem examination could theoretically be identified now by DNA tests, it did not remedy the original wrong, namely “that the coroner approved the identification of the examinee without proper scrutiny…”.

The essence of the decision was that it was unnecessary to hold any further investigation into the cause of Simona’s death.

The court held; where there is a viable alternative remedy available to the claimant, the court will not grant judicial review. Here, the family could check the DNA and lay any doubts to rest.

The question is whether there is a viable argument that the decision taken by the coroner was an unreasonable decision in the Wednesbury sense, bearing in mind the overriding duty of the coroner to ensure that relevant facts are fully and fearlessly investigated. It would have to be shown that material factors relevant to the decision were omitted from consideration, irrelevant factors were considered, or that no reasonable coroner could have reached that conclusion.

The coroner was entitled to rely on the pathologist’s report to conclude that there was no reason to suspect that Simona’s death was due to unnatural causes, or brought about by a lack care.

Even if the coroner had doubts surrounding identity, it would not necessarily have justified ordering any further investigation. The most he could have done would have been either to request further information, so as to satisfy himself that the subject of the autopsy was indeed Simona, or to direct a fresh autopsy or further tests before determining that he was satisfied of the cause of her death and that there was no need for an inquest.

There was now little doubt that if he had asked for further confirmation from the mortuary staff, that the post-mortem was carried out on Simona, that confirmation would have been forthcoming.

It is important to bear in mind that judicial review is a remedy of last resort. The complaint was that the coroner was not entitled, on the information which he had, to reach the conclusion that the autopsy was carried out on the right person. At no stage in the decision is there any express mention of the discrepancies in the physical description, or any answer as to how they came to be there.

He says that that means that essential factors were not taken into account.

The court, however, has to have regard to the whole of the correspondence, because the factors do not have to be referred to expressly on the face of the impugned decision, provided that they are matters that the coroner has looked at and considered before taking that decision. When concerns were raised, the coroner sought (and was given) confirmation from Dr Bodi that he was satisfied he had carried out the autopsy on the right person (even if Dr Bodi did not specifically address the discrepancies in the physical description or the reasons why they came about). He said that he doubted that there was another young woman with a very rare brain stem glioma in the mortuary at the same time, and he referred to the identification of the body by the name tags.

Was the coroner reasonable in being satisfied by this information? The test is not whether the court would have been satisfied with that information, but whether the decision taken would have been within the reasonable range of responses of a coroner in the circumstances in which this particular coroner found himself.

Whilst the inaccuracies in the physical description noted down by the pathologist were a genuine cause for concern, the alternative scenario would be that coincidentally, another young woman of approximately the same age who died at around the same time, of the same rare brain tumour as well as pneumonia, was somehow became mistakenly identified as Simona before the post-mortem. That would mean that the wrong wrist tags were put on somebody else’s body which would have been attached to both wrists at or shortly after the time of death. The coroner would know the way in which hospitals deal with these matters, along with the regulation of the procedures by the Human Tissue Authority, which requires certain checks to be carried out at different stages after a person dies. The opportunities for such a mistake would therefore been extremely limited, and the coroner would have known that.

It was highly improbable that the hospital would have made such a catastrophic error.

It was far more likely that the error lay in the description of the physical attributes in the post-mortem report. The coroner was entitled to conclude that the hospital had not made the error of performing a post-mortem examination on the wrong body.

Information had been subsequently provided from the hospital which the court noted, that it would have been preferable if it had been requested by the coroner at a much earlier stage on the reception and identification of bodies, along with the fact that there were no other similar bodies in the mortuary.

With all the material now available, it was clear the coroner had made the right decision and this issue had become academic. Also, the coroner did not make an error which was susceptible of judicial review. However, the family deserved a full apology from the hospital and some explanation as to how it came about.

Paul Cook