Bingham & Bingham v Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IEHC 74
• Court: High Court
• Date: 19 March 2010

[2010] IEHC 74

THE HIGH COURT

[No. 549 J.R./2008]

Bingham v Farrell

JUDICIAL REVIEW

BETWEEN

BERNARD BINGHAM AND VIOLA BINGHAM

APPLICANTS

AND

BRIAN FARRELL

RESPONDENT

CORONERS ACT 1962 S33(2)(B)

CORONERS ACT 1962 S26

CORONERS ACT 1962 S52(2)(B)

CORONERS ACT 1962 S52(2)(A)

CORONERS ACT 1962 S33

CORONERS ACT 1962 S17

CORONERS ACT 1962 S19(1)

CORONERS ACT 1962 S26(1)

CORONERS ACT 1962 S30

CORONERS ACT 1962 S31(1)

CORONERS ACT 1962 S32

CORONERS ACT 1962 S50

CORONERS ACT 1962 S52

RAMSEYER v MAHON 2006 1 IR 216 2005/52/10900 2005 IESC 82

EASTERN HEALTH BOARD v FARRELL 2001 4 IR 627 2001/9/2266

NORTHERN AREA HEALTH BOARD v GERAGHTY 2001 3 IR 321 2002 1 ILRM 367 2001/18/4883

MORRIS v DUBLIN CITY CORONER 2000 3 IR 592

HANLEY v CUSACK UNREP MCGUINNESS 10.6.1999 1999/13/3426

FARRELL v AG 1998 1 IR 203

R v CHIEF CONSTABLE OF NORTH WALES POLICE, EX PARTE EVANS 1982 1 WLR 1155 1982 3 AER 141

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

POWER v BORD PLEANALA UNREP QUIRKE 17.1.2006 2007/51/10856 2006 IEHC 454

LOWE TAVERNS (TALLAGHT) LTD v SOUTH DUBLIN CO COUNCIL & THE SQUARE MANAGEMENT LTD UNREP MCGOVERN 28.11.2006 2006/34/7313 2006 IEHC 383

RSC O.84 r21

CORONER

Inquest

Powers of coroner - Post-mortem- Special examination - Genetic tests - Whether genetic tests carried out by coroner unlawful - Whether coroner called all relevant witnesses - Whether coroner proper person to be nominated to carry out post-mortem - Whether no relevant evidence before coroner to support finding made - Whether inquest accorded with fair procedures - Ramseyer v Mahon [2005] IESC 82 [2006] 1 IR 216; Eastern Health Board v Farrell [2001] 4 IR 627; Northern Area Health Board v Geraghty [2001] 3 IR 321; Morris v Dublin City Coroner [2000] 3 IR 592; Hanley v Cusack (Unrep, McGuinness J, 10/6/2010) and Farrell v Attorney General [1998] I IR 203 considered - Coroners Act 1962 (No 9) - Relief refused (2008/549JR - Hedigan J - 19/3/2010) [2010] IEHC 74

Bingham v Farrell

Facts The applicants herein, who were the parents of the late Mirek Bingham who passed away on 31 December 1999 sought by way of judicial review, an order of certiorari quashing the verdict of the respondent, made on 12 November 2007 that the underlying cause of death of their son was epilepsia partialis continua due to an underlying progressive neurological disorder consistent with a mitochondrial defect. The applicants also sought an order directing another inquest. The applicant's grounds for review could be categorized into three groups, namely, the statutory illegalities, the irrationality grounds and fair procedures. The applicants submitted that certain genetic tests carried out by the pathologist constituted 'special examination' within s. 33 of the Coroners Act 1962 and he did not obtain the permission of the Minister of Justice as required, that the respondent failed to call witnesses and should not have nominated Professor Farrell to conduct the post-mortem. The applicants also alleged that there were factual inaccuracies in the verdict and death certificate and that the medical evidence was based on unreliable, inconclusive and fabricated evidence. Finally the applicants submitted that the coroner failed to investigate all the evidence available and conducted the hearing unfairly and did not take sufficient time with the verdict. The respondents pleaded that the applications failed to bring their proceedings promptly or within 6 months. The respondents also denied each and every one of the grounds advanced by the applicants and pointed out that at no stage during the hearing did the applicants' legal representatives complain of a breach of fair procedures.

Held by Hedigan J. in refusing the application: That the respondent was the clearest possible example of a specialist tribunal and it was appropriate to accord to him a curial deference in regard to his role in construing the medical evidence before him.

In the unusual circumstances of this case there was good reason to extend the time for bringing judicial review proceedings under Order 84, rule 21.

There was no known authority requiring the respondent to limit the nature of investigation to be carried out by the nominated pathologist. Furthermore, the special examination carried out in this case at the behest of the pathologist was not one requiring the authorisation of the Minister. No objection was made at the hearing in relation to the alleged failure to call relevant witnesses and such objection could not now be made at this stage. Professor Farrell was not in attendance on Mirek prior to his death and was not on the staff of the Mater Hospital, consequently he was not a person to whom s. 52(2)(a) or s. 52(2)(b) applied.

The respondent had ample evidence upon which he could and did rely in support of his decision. The allegations that Professor Farrell fabricated evidence and gave false evidence were wild and irresponsible allegations. The errors on the face of the Death Certificate occurred at the typing stage and had been rectified. The verdict of the respondent was based on the evidence before him and was rational and lawful.

The applicants' counsel did not complain at any stage of any unfairness in the procedures. Furthermore, from a reading of the transcript, the allegations of unfair procedures were completely without foundation. There was also no substance in the allegation that the respondent led witnesses away from evidence of fault. Finally, the respondent had ample time to digest the evidence he had heard and had extended discussion with counsel as to the form and content of the verdict.

Reporter: L.O'S.

1 Judgment of Mr. Justice Hedigan delivered on the 19th day of March, 2010.

2 1. This application is for an order of certiorari quashing the verdict of the Dublin City Coroner made on 12 ^th November, 2007 that the underlying cause of death of the applicants' son was epilepsia partialis continua due to an underlying progressive neurological disorder consistent with a mitochondrial defect. The applicants further seek an order directing another inquest.

3 2. On 19 ^th January, 2009 the applicants were given leave to seek judicial review in these terms by order of Mr. Justice Edwards. The grounds allowed were as follows:-

4 (1) The death certificate of our son, Mirek Bingham, does not reflect the summary and verdict given by the respondent on the 12 ^th November, 2007 at Dublin City Coroner's Court. An error thus exists on the face of the death certificate issued on behalf of the respondent and the information supplied by the respondent.

5 (2) The record of verdict does not accurately reflect the summary and verdict given by the respondent on the 12th November, 2007 at Dublin City Coroner's Court. An error thus exists on the face of the record of verdict issued by the respondent.

6 (3) The death certificate and record of verdict are factually incorrect based on all the evidence available. An error thus exists on the face of the death certificate and record of verdict issued by the respondent.

7 (4) The respondent stated the underlying condition to be a "neurological disorder consistent with a mitochondrial disorder". The respondent came to this conclusion based on genetic tests carried out by the respondent's pathologist who carried out the genetic tests without the knowledge or permission of the respondent and without the knowledge or permission of the applicants. The respondent gave permission to the pathologist Professor Michael Farrell for a limited autopsy and histological examination only. No permission was sought or given by the respondent or Mirek's next of kin to carry out genetic testing. The Coroners Act 1962, as amended, at s. 33(2)(b) provides that a coroner may request the Minister to arrange "a special examination by way of analysis, test or otherwise." The respondent erred in allowing genetic testing to be entered into evidence when permission had not been granted by the respondent or next of kin.

8 (5) The respondent's finding that the underlying condition was a "neurological disorder consistent with a mitochondrial defect" was based on unreliable and inconclusive tests and fabricated evidence. The PCR Analysis carried out by the respondent's pathologist was carried out by an unaccredited laboratory. The mitochondrial testing should have been carried out by a molecular genetics testing centre. The post mortem muscle tissue upon which the respondent accepts PCR Analysis to have been carried out providing a "firm diagnosis as to the medical cause of death" does not exist. An error thus exists on the face of the death certificate and record of verdict issued by the respondent.

9 (6) The respondent failed to call relevant witnesses as laid out in s. 26 of the Coroners Act 1962, as amended, despite written and verbal submissions by the applicants. The respondent failed to call witnesses who may have given evidence or an opinion that delay in diagnosis in treatment were the cause of Mirek's death.

10 (7) The respondent failed to fully investigate all the evidence available and refused to accept and examine the protocol for treating seizures. The respondent failed to investigate the possibility that delay in diagnosis in treatment were the cause of death, which therefore constituted the lack of an effective investigation by the respondent.

11 (8) The respondent erred in judgment by engaging Professor Michael Farrell to carry out the post-mortem, given that the pathologist was a colleague of Dr. Tim Lynch, Consultant Neurologist, responsible for Mirek's neurological care and given that Professor Farrell was assisting Dr. Lynch prior to Mirek's death in diagnosing Mirek's neurological...