Eastern Health Board v Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 14 December 1999
• Neutral Citation: [1999] IEHC 59
• Docket Number: 1999 No. 138/JR
• Court: High Court
• Date: 14 December 1999

[1999] IEHC 59

THE HIGH COURT

1999 No. 138/JR

EASTERN HEALTH BOARD v. FARRELL (DUBLIN CITY CORONER)

JUDICIAL REVIEW

BETWEEN

THE EASTERN HEALTH BOARD

APPLICANT

AND

BRIAN FARRELL, CORONER FOR THE CITY OFDUBLIN

RESPONDENT

AND BY ORDER

VERA DUFFY AND KEVIN DUFFY

NOTICE PARTIES

Abstract:

Medical law - Inquest - Role of coroner - Ascertaining cause of death - Death certificate - Pneumonia - Cerebral palsy - Vaccination - Delay - Judicial review - Whether coroner empowered to commission independent report - Whether coroner trespassing into the area of civil liability - Whether coroner acted ultra vires in commissioning independent report - Coroner's Act, 1962 (No 9) section 30.

The respondent, in the course of an inquest, sought to commission an independent report into a possible link between the death of a deceased and the pertussis (the three-in-one) vaccination. It was common case that the cause of the death was aspirational pneumonia. The coroner originally proposed that this had been brought about by the deceased's cerebral palsy. However the family of the deceased claimed that the pertussis vaccination had in fact brought about this condition. The Eastern Health Board brought judicial review proceedings to prohibit the coroner from proceeding with an independent investigation of a possible link. Geoghegan J granted the relief sought and held that the proposed course of action by the coroner was outside his official remit.

1 Mr. Justice Geoghegandelivered the 14th day of December, 1999

2 This is an application for judicial review brought by the Eastern Health Board in respect of an inquest currently being held by the Coroner for the City of Dublin, Dr. Brian Farrell, seeking a number of declaratory reliefs and Orders of Prohibition and Mandamus. The inquest is into the death of one Alan Duffy on 31st December, 1995 at the age of 22. The deceased had suffered from a moderate form of mental retardation. It is not in dispute that he died of aspirational pneumonia. Following on the death, the Consultant treating the deceased, Dr. MacMathuna, proposed completing the death certificate in the following manner:-

3 "Aspiration pneumonia due to cerebral palsy".

4 The family objected to this entry in that they alleged that the aspiration pneumonia which was the immediate cause of death arose due to the deceased's mental handicap which in turn was caused by an encephalopathic reaction to pertussis vaccination when he was an infant. This vaccination is more popularly known as the three-in-one vaccination. As a consequence, no death certificate was filled up and the matter was referred to the Coroner who directed an inquest.

5 The inquest was held on 4th December, 1997. The Eastern Health Board received notice of the intended inquest on the 30th October, 1997 but were not told of any intention to investigate a possible connection between a three-in-one vaccination and the death. When the hearing commenced it emerged that the Coroner had assembled a large number of expert medical witnesses who, as the Eastern Health Board points out, were there for the purpose of giving evidence not only about the facts of the death but also into any possible connection between the death and the three-in-one vaccine. That vaccine had been administered between 14th October, 1973 and 5th February, 1974. The medical evidence adduced did not establish any link but the father and the mother of the deceased gave evidence explaining why they thought there was a link. A very full hearing ensued and the experts and witnesses were cross examined by Mr. Michael McDowell, S.C. on behalf of the Health Board. He protested to the Coroner that it was not part of his remit to investigate the link with the three-in-one vaccine, that he was trespassing into the area of possible civil liability which he was not entitled to do under the Coroner's Act, 1962.After the Coroner had heard the medical evidence, he stated that the jury needed to know the circumstances surrounding the administration of the vaccine in the 1970s and that he had the statutory power to request an independent medical expert to carry out a further study of all the evidence that had been given to date and also into the possible link between the three-in-one vaccine andinfantile spasm. This report was commissioned from Dr. Karina Butler, a Consultant in Paediatric Infectious Diseases, at our Lady's Hospital for Children in Crumlin. The inquest has been continually adjourned since then on different dates on the grounds that the report was not ready until finally three days were set aside to hear it in April 1999. Various suggestions were made as to the resumed procedure but the Coroner was in favour of retaining the existing jury, having the evidence to date read out to them and continuing the inquest accordingly. By Order of 12th April, 1999, Mr. Justice McCracken granted leave for this judicial review. The inquest stands adjourned pending the hearing of the judicial review.

6 The complaints of the Eastern Health Board against the Coroner can be summarised as follows:-

7 (1) The Coroner, in carrying out an investigation as to a possible indirect link between the death and the three-in-one vaccination administered at infancy, is in breach of Section 30 of the Coroners Act, 1962and particularly having regard to the interpretation of that Section placed by the Supreme Court in the judgment of Blayney J. in Green -v- MacLoughlin, unreported judgment delivered 26th January, 1995 and equivalent English jurisprudence on equivalent English statutory provisions.

8 (2) There is no statutory authority enabling the Coroner to commission an independent expert's report and furthermore that in doing so the Coroner was acting ultra vires the...