I was in a sweltering coroner’s court yesterday in Chelmsford, Essex for a Pre Inquest Review Hearing touching on the death of Paul Spearing.
Paul was 41 when he died in November 2023, after choking on a chocolate croissant at the care home where he lived.
I was unable to attend previous pre-inquest hearings but particularly wanted to attend this one as it was due to be the final hearing before Paul’s inquest, that is currently listed for August.
The coroner hearing Paul’s inquest is Sonia Hayes. Paul’s family are represented by Jim Duffy of 1 Crown Office Row, instructed by Sarah Westoby of Leigh Day. The care home, Essex Care Consortium were represented by Tom Day of 2 Hare Court. Hertfordshire Partnership University NHS Trust were represented by Lizzie Turner of Capsticks.
The coroner opened the hearing by saying that she had been away and that she had read the submissions from the family and looked at the videos of Paul which had been shared with her. She was aware there had been a further statement from Sue Rees and that she had given directions late afternoon the previous day (Sunday) to give an extension of time for the pen portrait.
The coroner said she’d been grateful to see the videos of Paul, addressing his father she said that she could see how dapper he was.
“Was useful for me to see Paul because obviously the deceased is at the heart of an inquest, can be difficult for the coroner when they don’t know who they were”.
Prior to that she told Mr Duffy that she had concerns about videos being admitted into evidence as they could be applied for (presumably by the media).
C: Mr Duffy, you’ll recall I have concerns about videos, whilst they are very useful, its whether we admit them into evidence, I’m always concerned, you know applications can and will be made in certain circumstances. You may address me on certain article rights of family about those not getting into the public domain
JD: Yes ma’am, you’ve made that very clear at the last PIR as well, will address you if it comes to it
The hearing then moved on to discuss who should be Interested Persons. It became clear that Paul’s family had raised whether the commissioners of Paul’s care should be IPs.
C: Mr Duffy I know I have had some submissions now about IPs. What I am going to say in your submissions you raise the issue about the commissioners, and for my part what I’m going to say, in almost every case in a care home, I could have families making such submissions to me.
I had addressed this issue previously and said how does it assist? An inquest is not an Inquiry, as you understand and know. In this jurisdiction is a statutory inquiry going on, and inquests are running in parallel, is important to understand the distinction.
If commissioners didn’t come and do regular reviews how does that affect my inquest, when others are tasked with providing the care? I should be interested in getting the commissioners in?
JD: Family don’t have a great visibility into what the role of the commissioners was, but did include failure to carry out regular face to face reviews. They were responsible for commissioning the care provided, I myself don’t have much more visibility than that.
C: I don’t particularly need forensic visibility, I understand they’re commissioning the care, even if someone was making submissions as high as someone was inappropriately placed, I’d have to understand how that directly affected the how.
I have done cases like this before, sadly also in other jurisdictions, family made submissions equipment wasn’t provided, but it’s about people providing the care, commissioners were commissioning it.
Even if we were to say was an inappropriate placement, I’d still struggle somewhat to understand, unless they were refusing to move someone to a more appropriate placement, how bringing the commissioners in is going to help.
It is incumbent upon those, in any NHS care, could have Integrated Commissioning Boards in hospital care. It doesn’t assist me to answer my questions, is what I’m going to say.
You may say don’t know what questions I’m to ask, but the questions are to the how.
JD: Yes, is quite difficult without knowing what their role was beyond simply commissioning placement. Heard what you say, can I take instructions on that?
C: You can. It is a legal matter, not saying this to you but for the benefit of those that sit behind you… is case law must not be a mouthpiece, Mr Duffy, I’m not saying that’s what you’re doing, family must understand whilst you take instructions they must take advice as well, for the court this is a legal matter.
Families want to understand everything, if I was a family member I’d want to understand everything, the court has a jurisdiction, we must consider that. Anything to do with the how will be asked, at moment I’m not going to say how it is to assist me.
The coroner checked if Mr Day or Ms Turner had anything to say on the matter, they did not.
C: We must remember as well we’ve got the CQC, clearly they are the regulator as well, that is a more important part of it to my mind, so that’s what I’m going to say.
Of course you can make further submissions, but what I’ll say is they have to be based on legal foundation Mr Duffy.
JD: Yes ma’am
The coroner then outlined what Interested Persons there were, Paul’s family, Essex Care Consortium, Hertfordshire Partnership University NHS Trust and CQC.
The coroner said that LEDER had asked for status, but the coroner had not heard from them since. She commented that “its not necessarily useful to have organisations asking for status if they don’t actually want to participate, which I did make clear to them as I’ve had this before”.
Everyone was agreed that the correct IPs were appointed.
The coroner said before she turned to disclosure she would “follow the structure of Mr Duffy’s submissions because I think useful to get this matter sorted out”.
This matter was whether a jury was required for Paul’s inquest.
I have applied to the court for a copy of Mr Duffy’s submissions to aid with this reporting. If I am successful in my application I will return and edit/add further information.
What follows is not a transcript, it is as close and accurate a contemporaneous note as I was able to take down. Throughout the discussion there were moments when speakers overlapped or interrupted each other and I have not indicated where this happened as it was so fast moving I was unable to take a consistent note. It seemed like a very important discussion.
I have attempted to hyperlink the documents referred to in court and have offered fuller explanations of what is being referred to in [square brackets] where it might be useful to the reader.
C: Mr Duffy you’ve addressed me on whether a jury is necessary, I think where you’ve landed is that you’re making a submission under Section 7 (2c) [of the Coroners and Justice Act 2009] as a notifiable incident.
I must say I was slightly surprised, to receive it, and I think your submissions were very helpful to me.
Where I was trying to land, I think you maybe found some of the same difficulty, that it’s not completely transparent in the regulations.
JD: No
C: And I will say to you where I have landed with it, law books etc are not particularly useful. The CQC notification is irrelevant, from a legal standard because every death is notified to the CQC, so that doesn’t assist.
Under RIDDOR [The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013] where I’ve got to, was quickly looking up this morning, I’ve landed with Regulation 14, and Regulation 14 [Restrictions on the application of regulations 4 to 10] tries to assist on specified injury and types of reportable incidents. Regulation 4 [Non-fatal injuries to workers], also talks about specified injuries and this particular type of injury doesn’t seem to fall within the regulations.
So I know you’ve addressed me on accident and what that might mean, I take the point Mr Duffy whether splitting hairs about accident or misadventure doesn’t particularly assist me, but even if I’m going down the accident route, we don’t get to specified injury so certain things are reportable.
When I turn to Jervis actually it talked about some of the nuances, with gas cylinders where very, very similar circumstances under one set would require the jury empanelled, and the other wouldn’t. So I think where I’m landing with it is trying to see does it fall within the specified injuries, rather than saying is it accident, is it misadventure, is it something else.
That’s the purpose of the inquest to answer that question.
JD: Yes
C: I’d accept that submission from you, in trying to understand even if going down route of thinking about accident, the injuries specified to be reportable it doesn’t. Because there is actually a list. Which I’m sure you’re familiar with fracture, amputation, injuries leading to loss of sight, crush injuries, burn injuries, head injuries… [she listed more, too fast, couldn’t catch]
Mr Duffy asked the Coroner what she is referring to.
C: I went thru Regulation 4, talks about reportable injuries and specified injuries to workers. I appreciate Paul wasn’t a worker but its whether it was involved in work, but then there is more detailed guidance in Regulation 4 of RIDDOR about the types of injuries, but the reason I go to Regulation 4 is because when I’m going down the route looking at care homes, and service users in care homes, it does then go back around to specific injuries, that’s where I could find the list. I’m not going to say it isn’t somewhere else but that’s where I found the actual list.
JD: Yes, so, the list includes ma’am any loss of consciousness caused by head injury or asphyxia
C: I took that to mean to be read together you’re saying it’s an and/or
JD: Its an or. Head injury or asphyxia
C: That’s why you say it is?
JD: I submit you’re right there’s an element of uncertainty in these regulations, to that extent need to identify specified injury that would be the one.
It may well be the HSE recognised the legislation not particularly illuminating on that point, that may be why its created the 7 page document on care homes or hospitals [Reporting injuries, diseases and dangerous occurrences in health and social care] …. Same situation in the last week, injury self-inflicted, lacking capacity in hospital, ended up in same place, this was helpful guidance in that regard.
C: I know they did change some legislation on gas provision because they weren’t clear, still causing anomalies. Self-inflicted I would find easier.
JD: Yes, is clearer. The position I understand is once you have a specified injury, clearly is in this case, then you’re into the question that essentially runs through this legislation, HSE guidance in health and social care settings.
Did it or did it not arise out of connection with work?
That’s what distinguishes someone of own free will jumping out of window at hospital, not arising from work. Other scenarios such as one patient striking another causing an injury, but that’s why you need to then focus on whether coroner has reason to suspect, I suggest that’s not a high bar.
C: No, no. Much case law on reason to suspect, I’ve had submissions made to me about that which was incorrect on other cases, it is not a high bar, don’t need evidence, is reason to suspect … I wouldn’t necessarily have difficulty with that part of the submissions. Is whether it’s a specified injury to start with, getting over that bar before considering anything else, you’re saying asphyxia?
JD: Yes, you’re right to go to that to try identify injury first and foremost… but clearly this was described as a choking incident, by definition was asphyxia.
So in my submission you quite clearly get over that bar, in that is whether… indeed have you reason to suspect that, in my submission clearly you must, for reasons set out at paragraph 8 in my submissions.
C: OK, give me one moment then.
Mr Day, you’ve heard the interaction, do you say to me asphyxia, technical postmortem cause of death choking leading to [missed].
Do you say to me it does fall within specified injury?
Mr Day: I don’t think I can reasonably challenge the suggestion if reason to suspect… [missed]
C: That isn’t where I started, I think I’d have to agree.
Things can be reported, then it’s found they didn’t need to be reported, and things not reported that should have been, that wouldn’t necessarily guide me.
Start first part, does it fall within specified injury, the rest of it is quite clear to me.
Mr Day: Forgive me I may be misunderstanding, I understood my learned friend to be saying this is death as result of [missed] rather than injury?
C: To fall into regulations it has to be a specified injury, that injury can lead to death of course, whether falls within the provisions, it’s a bit of a circular argument otherwise.
What we have under Section 7 (2c) is that if it is, a notifiable injury, “reads death caused by notifiable accident”, is same thing. You have to have the injury.
So are we saying I’m splitting hairs by talking about whether it falls within provision of specified injury, otherwise every death would fall under jury provision?
JD: Sorry to cut across, just looking at the legislation now, up against some internet access issues, think may be dealt with by Section 1 of RIDDOR, death of anyone arise in relation to work must be reported… rules out where no connection between worker and death, which is why every death in care home is not reported
C: So some of the things, scalding incidents are clear cut, falls within the provisions, very clear cut. Other death in [missed] sometimes yes, sometimes no
TD: I understood what my learned friend was saying was this is death resulting from work related accident, reason to suspect
C: Yes
TD: That being so I don’t think, I’m exercising my function as officer of the court here, not in pursuit of any position, don’t think is requirement to identify a specified injury … Regulation 6 of RIDDOR [work-related fatalities] says where any person dies as a result of a work-related accident…
C: Where we get to, this is where the distinction, one of the distinctions is. Certain things that arise from similar circumstances can be yes and no, this is why I’ve started where I have.
I’ll give example in Jervis, I think it’s useful, 1041 of 15th Edition, this is why I raise the issue, death caused by camp fire using refillable gas cylinder must be reported… death by similar fire disposable cylinder need not. Circumstances can matter, you can have very, very similar sets of circumstances.
TD: I think that’s due to the very particular requirements of when needs to be reported and when it doesn’t
C: of gas, yes. We’ve got slings
TD: I’ve seen cases akin to this not done with a jury
C: Indeed, and I have done them
TD: When I read my learned friend’s submissions it did make me wonder if it should have happened in the past frankly … guidance as I understand it, if reason to suspect, a low threshold, is some default in the system essentially that has led to the death… then the incident is reportable…
C: Section 3 talks about injuries and ill-health involving people not at work. Paul himself is not at work, this is where you’ve got the reportable list, scalds in baths, where vulnerable and adequate precaution not taken for vulnerable people, bed rails
TD: Forgive me ma’am, Section 3 of?
C: I’m reading the guidance [HSE RIDDOR Health and Social Care Guidance] can hand out to you, injuries and ill-health involving people not at work
JD: Page 5 of the guidance
C: I’ll hand it to Mr Day in a moment, visitor being struck by car park barrier, service user requiring hospital treatment after sliding through a sling, wrong size sling being used, examples of things which are reportable.
Things that are not, an act of violence as Mr Duffy said from another patient or service user, healthcare associated infection, and legionnaires disease, then whole section on fall incidents as Mr Duffy has alluded to, and so it is useful in that it gives examples of things which are and are not reportable, in similar sets of circumstances.
Self-harm as we understood does not, clinical decision making what’s reportable, what isn’t. Then we’ve got dangerous occurrences, so they don’t fall neatly.
The coroner asked her officer to hand the guidance to Mr Day.
TD: Thank you ma’am
C: What I’m concerned we don’t do, we don’t just move straight to reason to suspect. We have to understand does it get captured within the provision before we start saying that.
JD: Yes ma’am, it does
C: Because of what you said to me?
JD: Because of Regulation 5 [Non-fatal injuries to non-workers], I’m grateful for Mr Day raising this point about death, the distinction between death and other injuries is clear in Regulations 5 and 6. Regulation 5 when not at work … an injury and then taken to hospital for treatment of that injury, that applies to Paul already
C: You’re saying the choking is an injury?
JD: The asphyxiation is an injury. It doesn’t matter, specified injury in regulation 5b on hospital premises. If happen in hospital premises enter what is specified injury, if it doesn’t and you’re taken [to hospital]
C: I understand what you’re saying, but that isn’t what the guidance says. That’s why I went to Regulation 14, that’s where it takes us. Specified injuries are in the work place.
JD: Yes but specified injuries are irrelevant to this case a) it was an injury from which person was taken to hospital, perhaps more importantly than that looking at Regulation 6 it is a work related fatality.
6-1 where any person dies as a result of a work-related accident, the responsible person must follow the reporting procedure.
No mention in Regulation 6 of specified injury at all. I retract my previous statement that need to get over barrier of specified injury to get over barrier…. All needed is an injury where person taken to hospital, apart from that a death
C: Regulation 13 … provides us Regulation 14, that’s why I went to Regulation 14, started there but have to jump through hoops to get there
JD: Which part of Regulation 14?
C: I haven’t had this very long, only just come back into the country
JD: Of course
TD: As I understand Regulation 14-1 is there to capture situation where individual goes into operating theatre, dies or injury as result of that, hospital don’t have to report as work related incident.
I’m bound to say in my duty to the court, doesn’t need to be assessed as specified injury, if reason to suspect… I think the test is satisfied.
C: What I’m trying to understand then Mr Day, Mr Duffy, Ms Turner, is coroners around the country, I think Mr Duffy has been in front of me in other places, don’t typically sit with juries.
I know I’ve got experienced counsel here, I’m just concerned I don’t fall into error. It would mean a huge amount of cases would then fall to be captured, when we’re in Section 7(2c) it’s not discretionary, its mandatory.
Mr Duffy: ma’am exactly
Mr Day: I agree, when I read the submissions, I did wonder, it may be given magnitude of it, don’t know if any guidance from the Chief Coroner?
C: There isn’t any on this I’m aware of
JD: Ma’am as I said to Mr Day earlier, I found it unusual position when deputised for inquest 10 years ago, was re-run on Day 5 family realised was this issue and court was sitting without a jury.
For my part, I’m acutely aware you’re just back… to consider our submissions and look regulations and reserve your position for now
C: I sat in large court upstairs that jury was required, had 11 IPs and 11 counsel in front of me and it was in my view, I jumped through the hoops against vociferous submissions and found it did apply. In that case was more than content, was type of case required me to exercise a discretion in any event, so I wasn’t falling into error. Here what I will say, Ms Turner don’t know whether you’ve got anything to add?
LT: Nothing further to add ma’am beyond what already submitted
C: I’ll say I hear the submissions, the force of the arguments, I want to be very clear I’m not setting myself up and binding this court because it’s a very serious decision and I think with both counsel saying to me as well they have sat in inquests where there was no jury
JD: I’ve sat, I think this is my 3rd choking death inquest. All of them had a jury, the other two had a jury. I can’t be 100% sure what basis for that was, think in second one it was this issue.
C: As I said I had, force to the argument, it may be that Mr Day has corrected me as you have Mr Duffy.
I don’t need to think about specified injury but that just seems to open up a whole vista of requirements, and I don’t want to get this wrong, because I will say, in the other inquest, completely different type of case, I had submissions from the HSE themselves that it didn’t apply.
JD: It does seem surprising … if one thinks it through it’s not that much of a surprise, you do have reasons to suspect someone has died as a result of a work-related death or injury, that’s exactly the sort of situation the HSE Act is there to address, and RIDDOR Regulations.
C: It is clear, if I can have the guidance notes back, is certain categories guidance addresses to, scalding, bed rails, etc things like that about what’s reportable. You’re saying it’s not just what’s reportable, is whether there’s reason to suspect any death at work, injury suffered to a person not at work, but it is in the course of work?
JD: Yes
TD: Ma’am as I understood it, I looked at guidance spoke incident individual scalded by soup dropped by server, HSE said that’s reportable
C: Scalding is slightly different thing because it is reportable, scalding is a reportable injury
TD: Guidance would apply equally in situation if server drops knife and cuts an individual in restaurant, that would be reportable, if individual using it drops it themselves, it is not reportable… suggestion that the conduct of the work, as I understand it some sort of deficiency in system, that’s reason to suspect, some deficiency in the conduct of work has resulted in the accident, that’s what I understand arising from work means. If you are satisfied reason to suspect deficiency in process has resulted in the accident then…
JD: That’s exactly what Section 1 of the guidance says ma’am. Deaths in Health and Social Care, must report death of person whether or not at work if caused or arising from…
C: Yes this is where we get to accident, that’s why went down specified injury route, understand may not be correct why someone who harms themselves, what Mr Day is saying that would intentionally or unintentionally it wouldn’t fall, but its where the employee.
So, what is the at work element here, it’s about the food and the SALT assessment?
JD: I’ve offered a few possibilities ma’am at paragraph 8 as to what could be in connection with, or arising out of, supervision
C: So feeding, I think if we had someone who was being fed and there was this situation
TD: Ma’am can I assist in this way, I don’t think activities are reportable simply because the service user is being fed, would have to be reason to think deficiency or failure in feeding process had resulted in accident.
My learned friend’s paragraph 8, he sets out areas he submits there are reasons to suspect death arose in connection with work, supervision and planning, preparation of feeding.
I would suggest the court needs to look carefully if there is reason to suspect in relation to feeding, we don’t see anything in my respectful position that deficiency in respect of feeding, supervision likewise.
C: Hold on, this was where we did have this anomaly about whether Paul required constant 1-1 supervision full stop
JD: It is said he did at the time
C: I haven’t heard the evidence, we’re in pre-inquest. Is that admitted?
TD: As I understand it, [support worker] who was feeding Paul was feeding him 1-1 so
C: It’s something I have to decide. Let’s go down, sometimes easier to start where don’t think is too much difficulty, resuscitating and summoning of emergency services I think I’m probably not with you.
JD: Ma’am I don’t think it’s in dispute abdominal thrusts weren’t used
C: If act or omission causable of death, doesn’t mean it falls under this. There are different strands to inquest, something could be done incorrectly, I had a long jury inquest before I went away, no question resuscitation in that circumstances was heavily criticised, but isn’t causative
JD: Ma’am if I may, what we have here is a situation where abdominal thrusts weren’t used, real question mark of when CPR was started, or if it was started at all
C: Yes as you know would need to have expert evidence to say someone’s life would be prolonged or saved
JD: Not to suspect. You need probative evidence to get to the end point.
C: must understand what looking at, not whole inquest or causation, we’re looking here at whether this was work. This, they’re not an ambulance crew, I understand and don’t want the family to think this isn’t important to the inquest, its whether it’s important to this point, a very specific discrete point. If you feel it is problematic, let’s work our way through
Mr Day asked to make submissions
TD: Working, of RIDDOR work related acts arising from work. My learned friend correctly identifies the issue as choking, the resuscitation is not, that’s following the incident…. Alternative would mean any aspect of any service user who was injured, any reason to suspect wasn’t perfect, is a jury inquest
C: That is why this doesn’t make sense to me Mr Duffy. Think I need to look at what wording of the test is. You’re very succinct, eloquent but succinct in identifying what you say is the work-related accident, I’m very much with Mr Day, response to that is a different test
JD: That may be correct, but it doesn’t get away from the existence of the submission, surely at this stage of the inquiry
C: No, it does
JD: I’m not talking the after events
C: The after events I’m not with you, the before and during is what you’re addressing me on
JD: Supervision, meal planning and preparation, clearly it’s about meal preparation. Feeding not suggesting…. being fed mouthfuls, but feeding in general clearly is work, for this care home, and this care support worker. So, all the parts of the test this falls down on, in my submission, this is not the one frankly. It’s clearly at work, and you only need reason to suspect that.
C: supervision, something can be done, I try to use examples to help people to understand. Something could be considered potentially clinically negligent, someone coming in an emergency to hospital requiring antibiotics because in xx state for specific infection and given penicillin to which allergic, and is on their notes, unfortunately suffer anaphylaxis, people clearly see it’s something that shouldn’t happen, wouldn’t fall into certain parts of the test, inquests do not concern themselves with negligence.
I use that example because its about legal tests rather than the facts of something, is about the jurisdiction we sit in. Here you’re saying this whole regime for Paul, in this set of circumstances, put him in a vulnerable category in some way, because anyone in a care home is going to have food prepared for them.
JD: Yes, but they’re not all going to die as a result of that work activity… where you suspect that work activity caused them to go to hospital or caused their death… statement we sat at table, I was sat next to PS and fed him…. That’s clearly in my submission work activity, legislation doesn’t require negligence or an error.
C: No, no
JD: Requires a death in connection with work. In my submission that test is clearly satisfied.
C: Mr Day?
TD: I found the guidance, I looked up on HSE website, example of reporting incidents
The coroner said she would try to find it and checked the date with Mr Day.
TD: I’m afraid I don’t see I’ve got a date on mine
C: I’ve got examples of reportable incidents and got a list?
TD: Yes, drop down list, for example If I ask court to open drop down injury list for scalds… not perfect analogous example, says for example one looks at are accidents sustained in PE lessons reportable, says no most of them not
C: does this equate? I understand
TD: If one goes into second bullet point… accident work-related as arose from work, school, college rather than normal risk
C: yes, are we comparing apples and pears here? Paul lived in an environment where he was under care. At school?
TD: I don’t think we are, reason is final sentence of second bullet point, makes distinction where consequence of normal risk, is not reportable, but faulty equipment, it is.
In my submission an individual in a care home choking, may be consequence of normal risk of…
C: so, it isn’t someone needs a particular regime?
TD: Yes, you have to have reason to suspect some deficiency in regime, rather than normal risks associated with eating. I don’t mean normal risks of someone without dysphagia, just normal risks for that person
C: I just think school isn’t the best analogy
TD: It isn’t, but HSE certainly suggests there has to be some reason to suspect fault
C: Mr Duffy says you don’t need fault
TD: I think you do otherwise you’d have anybody who chokes in a care home, whether they have dysphagia or not, requiring a jury
C: That’s where I say in my confusion, wondering why as counsel for decades or coroner for very long time, hadn’t gone down that route in the past
TD: If someone goes to restaurant and chokes, then arises from food cooked at work
JD: You’d have to have suspicion… [missed]
C: Case arises where someone is put on notice of allergy, but that didn’t translate to kitchen
JD: Yes, work-related
C: Because we have process, and reason to suspect fault, didn’t get to the kitchen.
TD: Yes
C: Here its distinction whether Paul was a member of the public for purposes of HSE, he can be in certain circumstances and may not be in other circumstances.
JD: This is useful to compare and contrast, but we’re getting away from Health and Social Care context and we do have guidance, of Health and Social Care guidance says very clearly must report a death of person whether work or arising
C: That’s always the case, I do understand that. We can have that situation, but if caused by an accident arising, it’s not just something that happens that causes the death, it’s a very small sentence but it’s very packed
TD: It’s what arising out of work means, more than on premises
C: I think it must mean more than on the premises
TD: Or part of providing food as part of your duty or visit, that’s why in my submission all examples on that list all make point reportable if there’s fault, or reason to suspect
C: I think fault is probably quite a strong word, is in our lawyers’ heads means certain thing, must be something that makes it more than just being there
TD: More than the normal risks
JD: It’s clear if it’s caused by actions arising, or at work. Restaurant example, I go to restaurant tonight and choke on chicken, yes cooked in kitchen but if coroner has no reason to suspect cooking of it that caused my death. Compare to this Health and Social Care context where someone is being fed by a care worker, and chokes, not an able bodied person, someone received one to one, 24 hour care, being fed by that one to one, 24 hour carer. The question is whether you have reason to suspect that work activity is what caused the death.
C: Let’s look at that. Can imagine scenario where someone requires regular assistance with feeding, and they aspirate. It does happen, people with dysphagia aspirate, it doesn’t necessarily mean the feeding has caused. Some people are fed at risk, as Mr Day uses that context, because to not be able to eat can be a very life changing thing over the course of time. But if someone were to be fed lying down the risks then are not being addressed, some avoidable, potentially avoidable risks, one might say the process. Just a simple aspiration causing that problem wouldn’t necessarily make this bite, probably not an appropriate word to use
Mr Day: [missed]
C: Yes, that’s where I do understand what Mr Day is saying, he used fault in quite a lose way, some deficiency in system, and then you’re in reason to suspect
JD: That’s where it comes down, I don’t want to go around again.
C: I think this is helpful
JD: You’ve used words “it doesn’t necessarily mean”, I can’t argue with that, but question is whether you have reason to suspect. So let’s turn on its head.
If you sitting there with documents in front of you, have no reason to suspect the work activity has caused Paul’s injury or death, then no jury. If on current evidence you at least have reason to suspect, then jury. What I say is it’s very difficult for you to say you have no reason to suspect that supervision or meal planning
C: That’s such a low bar, this is where you’ve got these things sometimes
JD: What’s the high bar?
C: In my head certain things, whether Article 2 engaged sometimes can be quite a high bar
JD: Yes
C: But reason to suspect is a very low bar, and they’re sitting poles apart
JD: Yes, but here there’s no high bar
C: It’s not just reason to suspect, it’s at work, it’s not just reason to suspect, it’s at work and so what I’m going to say, I’ll go through the rest of this.
I will have to decide this, I won’t sit on this, it’s not one of these things is going to take me long, I may decide before the end of the PIR, I may decide it tomorrow, can’t think I’ll be very much longer unless anyone feels take more time with this, I think I’ve been very well assisted. From the legal argument we’re not worlds apart
JD: Yes
C: Which is of course what we should be if we’re simply talking about the law and facts, think I have the submissions. Anything else?
TD: Supervision, we say no reason to suspect. Feeding, we say no reason. Meal preparation, for you to decide whether [support worker] what he called a soft croissant softened in milk is sufficient to trigger that reason to suspect
C: You’re saying only one technically I should be considering is meal planning and preparation, to extent whether croissant itself fell into feeding?
TD: I say on material in front of you is nothing that gives arise to supervision and feeding, my learned friend indicated family concerns about soft croissant softened in milk is sufficient
C: I’m just trying to think, some of examples given in Health and Social Care scalding, using wrong size sling and someone falling out, quite clear cut examples where an absolute, there are regulations for water temperature for example, the size of a sling can be established. The diet issue is slightly more difficult Mr Duffy isn’t it?
JD: Ma’am I gave a few examples in paragraph 8, not expecting this to be the issue in relation to jury, could have given other examples, training for dysphagia, autism, SALT management, whether should have been earlier re-referral
C: We’ve got evidence about the SALT I know, concerned me, training is a much more difficult one
JD: You fall back on reason to suspect I suppose, if you have reason to suspect, if some deficiency in training or something about training
C: Would training fall into this?
JD: Training is a work activity, is at least in connection with work so in my submission are numerous candidates, question for you is whether any alone, or in combination, amount to a suspicion
C: I think I’d be assisted by further submissions just on this point, Mr Duffy whilst you’re making yourself clearly understood, as is Mr Day, this point is very key to my decision, I think I would be assisted. Ms Turner it may well fall to your client as well, so I’ll leave it up to you.
How quickly, this is a decision that needs to be made, may affect other matters, can deal with others as either/or. Appreciate everyone has a lot of work on, can you get something to me by Wednesday?
Mr Day said he could respond by Wednesday.
Mr Day: In this court usually put submissions in at the same time, so if my learned friend raises issues
C: Reason I say this, something has come out of my diary, could look at the matter and really do want to make a decision about this, it’s a really important decision.
Mr Day: I can certainly respond to points raised now, if 24 hours after points raised?
C: Mr Duffy?
JD: Yes I’ve not got a problem with that
C: Can you get them to me by Wednesday, by noon?
Mr Duffy responded that he had a PIR hearing until 1pm on Wednesday, so the coroner allowed until close of play for submissions to be made.
JD: Can I suggest then simultaneous submissions, if I raised new points
C: Yes, submissions by Wednesday, if any new points by close of play Thursday.
Discussions then moved onto matters of disclosure. There were discussions about safeguarding investigations and LEDER report. Mention of Asda receipts and discussion of the consistency of the croissant.
The focus then moved to Article 2.
C: So, Article 2 you’re saying wont trouble me particularly, should keep it open?
JD: Yes, happy for you to keep it open ma’am
C: should I?
JD: If you were considering closing it off I’d want to make submissions
C: Yes but why should I keep it open?
JD: Ma’am I’d like to address you formally on that
C: Just give me the general gist, I’m just trying to understand. This is a high level legal point, has to be a deficiency not just in a system at the care home, but somehow we’ve got some kind of operational
JD: Put simply addressed you at the PIR on all of this last time, on two basis, one is the inadequate CQC reports which specifically refer to choking risks not being managed.
C: Were they on notice before? Had they had any Section 31 notice?
JD: Think we’re getting mixed up between operational duty and systemic risk. Systemic risk arose from poor management of choking risk
C: Yes, within the home itself. Why does that fall into Article 2? Was it the whole home rather than just Paul?
JD: Yes. The operational duty arose because risk choking in Paul’s case with his dysphagia and ataxia was a known risk
C: Real and immediate?
JD: If fed wrong type of food or failure of planning what type of food should have
C: Sometimes doesn’t make a difference to the questions to be asked, sometimes it does, it’s the amount of time in this case I might need
JD: In what sense?
C: Chronology of how many days I’d need
JD: I’m not suggesting as said in submissions it affects material scope of inquest
C: no, but its about the time, questions can be asked, but if we’re going to go into these issues, it does take a little more time
JD: In my part doesn’t think goes beyond the scope currently outlined, might affect your available conclusions
C: Obviously. Mr Day?
TD: Don’t see anything suggests Article 2 engaged in this case, am somewhat concerned the scope of this inquest may already be going too far, going back over long time looking at receipts and daily logs
C: I said would look at some things and not others, SALT I did, receipts I did not. Very limited amount of time, I share your concern about that, even in Article 2 inquest don’t need to go back and back and back, and I make those decisions when Article 2 is engaged, what was present at the time of the situation
JD: Ma’am can I suggest quite a while ago now I made my submissions, September, paragraph 6 onwards
C: I will have them, paragraph 6 of your September submissions?
JD: Yes paragraphs 6 up to 14
C: My recollection was I wasn’t with you on everything?
JD: I think that’s a fair assessment. You kept the matter open.
C: Yes, sometimes I keep open until I’ve heard all the evidence, that’s what I do, you’re saying there’s nothing to stop Mr Duffy, in any event that I closed Article 2 that evidence suggested would be open, you could make the submission again?
JD: No, but feels like more of a standing start at that stage
C: Yes, but it does happen and I’ve started when Article 2 was not engaged and opened within an inquest
Mr Duffy said his submissions would be the same, that both operational and systemic duties were set out in a fair amount of detail.
C: You’re saying precise consistency of croissant, how can I ever make a decision about that, we’re only going to get the evidence of the person who gave that. Quite frankly if you soak something in liquid, will change. Let’s say I get the Asda baker here, the minute you add liquid to it it will change, he doesn’t know how much, what it was, what the temperature was. It’s very difficult even if I had an absolute baseline to start working from, I’m not going to go into this in precision, it’s not possible Mr Duffy. I appreciate if something was dry, dry cracker or dry biscuit etc etc here the issue about the risks of the food group itself is the point isn’t it?
JD: Yes, I think that’s right ma’am, although I have a footnote…
C: I understand the point you’re trying to make
JD: I understand you’re making… given the number of impenetrables, particularly milk, if there was milk, my position on operational and systemic duties is unlikely to change
C: Food, SALT… [other, missed] is point here, will hear evidence about that, at paragraph 10 you’ve addressed me on real and immediate, you know it’s important
JD: Absolutely
C: Anything you want to add you can put in your submissions if you want to
TD: Scope and Article 2, you’re very experienced, it’s a matter for you
The focus then returned to disclosure.
C: Let’s leave it there then, let me get back to my agenda. So we’re content then around disclosure, we’ve got everything we need now, if you get those other two documents
JD: One or two other things ma’am, raised with Mr Day just before coming in. We’ve had a number of daily logs helpfully for some of the months leading up to Paul’s death, we don’t have any logs for October 2023
C: How far back is that?
JD: Just the month before, if we can have those? [Witness name] exhibit is missing, if that can be provided to us
C: Can we have these?
TD: I believe you already have NS1, if not we can check, I’d be very surprised
C: Can you send it again, not saying we don’t have it, sometimes things get separated
TD: We’ll send it again and ma’am dig out the October daily logs and send them. Again I have query about relevance going that far back
C: Was the month before, didn’t I say the month before? Hold on I’ve got my note [reads to herself] so incident reports, I didn’t say the daily logs in my PIR note
JD: Yes ma’am I’m told they’re in the care home bundle which is not paginated, you may be right they’re not specifically mentioned
C: I have families wanting to see 7 years of records at times, it isn’t what the family wants to see, is what is relevant to the inquest. Mr Day is right I did say we didn’t go back and back, if this is the month before, the daily logs you want to see what Paul was eating, would it be in there?
JD: I don’t know, to be frank don’t need logs go back further than that, its logs leading up to this choking incident we’d like to see, it may well be they might be relevant, might see whether any near misses
C: Yes, I said any incident reports
JD: Yes, it may be we get the logs and they don’t tell us anything, but we don’t know
C: We need to get the bundle in good order, and it isn’t
TD: Incident on 12 November… I do question what the value of having the daily logs, closest in time fortnight before the incident would give. Question asked, have there been any other incidents of choking is answered in statement. Gets to wanting to look through all your material
C: It isn’t all material, it is a fixed period in time
TD: Forgive me, I struggle to understand how daily logs 6 weeks to fortnight beforehand would assist you or jury in how, and by what means?
C: How was he being assisted normally with his feeding I think is a question
JD: Who was doing the feeding
C: Yes I have some sympathy with this request. If it was going back months and months I’d say no. Let’s see them, I’ll make decision now. Mr Duffy we have to get this bundle in good order is what I’m going to say. How long do you think you’re going to need?
Mr Day asked if he could turn his back and went to speak with the staff from Essex Care Consortium. He said that they would provide the information by the end of this week.
A floor plan was also requested and promised by the end of the week.
There was some discussion about scope and witnesses.
Discussion moved on to paragraph 26 of Mr Duffy’s submissions, which was not read out or explicitly explained in court. The discussion went as follows:
C: Will address your paragraph 26 Mr Duffy, I’ve only had cause to do this once, is there a particular reason why?
JD: Not suggesting anything untoward, want to ensure best evidence is given
C: This is unusual
JD: I’ve never asked for it before, the reason in particular I am in this case is the initial investigation featured a lot of the questions. So it’s important in this case in my submission to make sure at least now that we get as clear a forensic exercise as possible, of exactly what happened in terms of the choking incidents and the response. I’d be concerned of risk of group think developing.
C: Mr Day?
TD: In my submission its unusual, and no justification for it
C: Will give an indication Mr Duffy, when I did it some issues were brought to my attention by members of the jury, that is the only time I have ever, made a report… first time ever done that, this is highly unusual must understand this is not this type of jurisdiction, this bleed into evidence would be apparent in every case.
You raised slightly different matter, there were a number of leading questions, has that horse bolted?
JD: Is argument it has, attempt to make the best of situation.
C: It is very important to understand, done many decades, never had as counsel, only done once as coroner, certainly I’m not persuaded yet
JD: Very well ma’am
C: I’m not persuaded, you have to understand it’s not this kind of court, and we have to understand there should be proper reasons afforded, you can address me again if you think of my own volition if I had concerns I would address it
TD: Can I just raise this point suggestion of leading questions, not always in care home inquiry would be provided with transcript
C: Mr Day I’m not bound
TD: Uncomfortable in open court that we’re suggesting [missed] not a convenient place to be subject to implicit suggestions
C: Understand there has to be a proper reason, I said Mr Duffy said there were leading questions
TD: I say because we’re in public court
C: We must understand as well people aren’t police officers, police officers ask a leading question, did you give him the croissant is very leading question but one to ask
JD: Ma’am was careful to [missed]
C: Is implicit argument something improper has happened to extent need ring fence witnesses against each other etc etc, I can assure you nothing will get past me in my court but we must understand where we sit and why we sit.
Mr Day is right to remind me, not because I don’t know, but public nature of where I sit, we are in a certain jurisdiction and this court is not a fault finding court in any event. We must remind ourselves, Mr Day when we commence the inquest proper will remind everyone of the purpose of an inquest, it is very important.
Now what I’m going to say I’ve not made my decision about the jury point. If we are in the jury situation I have looked at the diary, now Mr Duffy you’re saying I would need 7 days with a jury, without a jury, what do you say to me?
JD: With a jury ma’am, currently 4 day listing in August, thought might be helpful to at least suggest running order
C: The issue of jury point is a legal decision, will either be yes or no. What I am going to say is if it is yes, it’s yes, if it’s no it’s no. If it’s no I am unlikely to exercise a discretion is what I’ll say.
Two reasons for that, in one respect coroner can make findings of fact on record that jury can’t, don’t always get to know why jury say what they say, coroner gives reason.
I also have duty to use court resources expediently and look to my duty as coroner to hear cases as expediently as possible. We’re already in heavy delays, we’d be lucky if I need more time to be sitting this time next year.
I’ve tried to look at my diary, I was trying to consider, even with a jury could I elbow a little more room but I don’t think I can elbow 7 days. I looked at this matter this morning having not prejudged anything. Do we think, well first thing is Mr Duffy are you free if I elbowed a little more room either side of this?
There was then a timetabling discussion. Within it the coroner addressed Paul’s family and explained the issue of whether a jury is required, is not discretionary it is a legal matter. Therefore, she said she cannot do anything about the delays. She did express that it would likely come as a great disappointment for them to hear how packed the court diary is. It was suggested that Paul’s inquest might be adjourned until July 2026 if a jury was required.
It was agreed that Mr Duffy and Mr Day would discuss timetabling and the coroner stressed if the inquest is adjourned for a jury, then it absolutely could not go part heard, so efforts would need to be made to get through the evidence.
The coroner said that she would make her decision by the end of the week and the listing must then go in the court diary.
C: Anything else then, Mr Day?
TD: Small thing, paragraph 16 of my learned friend’s submissions, only this, know don’t need to say it, in my submissions dangerously close to addressing the facts, will just leave it there.
C: I’m going to say this, I had read this at great speed, I’m finding creep with counsel, using the case of Lin [?] and saying things to me, oh but ma’am I have to address you to the facts to make the point, even sometime when I say enough in oral submissions people continued.
JD: No ma’am am surprised by the submission, am trying to get to the bottom of this before the inquest rather than have dangling, I only quote what witness said to make point
C: And that’s what Lin allows you to do, Mr Day is saying is dangerously close
JD: I cant accept that, at the moment is ambiguity in ECC statements as to whether or not there was a referral, it may be they don’t know.
TD: They can’t see one, the inference is obvious.
C: You know Mr Duffy if they can’t provide the evidence to me I’m going to make an assumption, it’s for me to make an assumption is what Mr Day is saying
JD: Very well
There was some further discussion about documents, the bundle and timetabling.
The coroner said that she would not give any indication about her decision, but she thanked everyone for assisting her in court at the hearing and in submissions.
Court was adjourned.
If the coroner decides a jury is not required, then Paul’s inquest will take place in August 2025. If a jury is required, it will likely be next summer.