Oakes & Anor v East Kent Hospitals NHS Trust

In this sad case, the Appellants seek to appeal an order made by Deputy Master Mark on 30 January 2014 declaring (1) that the Respondent has lawful possession of the body of Samantha Oakes (the Appellants’ deceased daughter, “the Deceased”) and (2) that the Respondent is entitled to make arrangements for the funeral and disposal of the Deceased by burial or cremation (at the Appellants’ choice), and making further directions in that regard. The fact that the Deceased died just over five years ago is an indication of the tortuous and unsettling passage of events since then.

Deputy Master Mark, in determining that he should grant the declaratory and other relief sought by the Respondent (East Kent NHS, which was the Claimant before him), considered the case to be a plain one, notwithstanding its agonising history, in which at long last the Deceased “should now be laid to rest”. He refused permission to appeal.

The Appellants have submitted with vigour and tenacity that the Deputy Master was wrong: wrong to characterise the matter as a plain case (a master’s jurisdiction to make a declaration being restricted to plain cases), wrong in his analysis of the evidence, and wrong in his determination to grant the declarations sought. They characterise the Respondent’s Part 8 Claim as an abuse of process and part of a conspiracy to pervert the course of justice and cover up a homicide; they contend that its adjudication in favour of the Respondent is the culmination of that conspiracy and itself a fraud.

They have urged that the Respondent has misstated the cause of the Deceased’s death, prepared and presented a variety of false documents and information to the relevant pathologists, to the Coroner, and to the Court, and is now seeking to dispose of the Deceased’s body to prevent revelation of its various wrongdoings and identification of the true cause of their daughter’s death.

They are adamant that the cause of death was not, as HM Coroner found it to be, pulmonary thromboembolism; that an inquest and independent post-mortem is essential to uncover the true cause; and that Deputy Master Mark should never have granted relief that would prevent this. They urge me to set aside his order and direct an inquest with a view to a further post-mortem examination.

After two hearings, careful reading and re-reading of the voluminous and somewhat amorphous documentary material filed both before and after it, and a further stream of written submissions from the Appellants over the course of June through to October, I have concluded that although I have given permission to appeal, the Respondent was and is entitled to the declarations it has sought, and the appeal must be dismissed.

Implicit in that way of expressing my conclusion is that, although the matter came before me as an appeal, for which I gave permission in a combined hearing of the application for permission and the appeal itself, I have thought it right to re-examine the entire available record and determine the matter afresh. In doing so I mean no discourtesy to the Deputy Master, with whose ultimate determinations I am in agreement. However, this matter has developed enormous heat and, in the process, obfuscation. Further, and as I observed in the course of the first of two hearings before me, the Respondents’ evidence in support of the application did, very regrettably, contain careless inaccuracies, especially in confusing two Electro Cardiogram (“ECG”) read-outs which has become of particular importance in the perception of the Appellants. All in all, I think it might have been better, given the declaratory nature of the relief sought and the restricted jurisdiction of a master in that context, for the matter to have gone before a judge at the outset.

It is to secure the same effect that I resolved to give permission to appeal, and then to determine the appeal on its merits. It is also for the same reason, and with a view to demonstrating a full assessment of the available material, that I have permitted the introduction of evidence that would not ordinarily be admitted on a true appeal. I have given anxious consideration to whether in such circumstances I should remit the matter for a full trial: but I concluded that only yet further delay and no different result could come of that. Ultimately, though complex, the position seems to me clear.

As to the structure of this judgment, I must first set out the background facts. I then explain why in my judgment there is (a) no plausible ground for upsetting HM Coroner’s determination of the cause of death, and (b) no proper purpose to be served by a further examination, so that (c) closure must now be brought to the matter by the Deceased’s respectful burial or cremation. I also explain why I have concluded that the Appellants’ contention that burial or cremation now would constitute interference with and destruction of evidence relevant to criminal proceedings, and would pervert the course of public justice, is misplaced. Lastly, I address various additional difficulties, including the need for the death to be registered.

The Deceased was born on 29 November 1969. She had Down’s syndrome. She lived her life at home. She was cared for by her parents. I am told that until 2000 she led a full and active life.

However, by 2006 concerns about her skin, her loss of menstrual cycle, limited urine extraction and cold body and bluish feet caused her GP to refer her to Dr Charles Williams (“Dr Williams”), a Consultant specialising in Diabetes/Endocrinology at the William Harvey Hospital, Ashford (“the Hospital”). A blood test showed, amongst other things, a high Erythrocyte Sedimentation Rate (“ESR”) possibly indicative of some unspecific disease or illness. However, I note (since it bears on matters I address later) that the Consultant in 2006 stated clearly in his report (October 2006) that “the electrolytes and renal function do not give any significant cause for concern”.

Of more concern to Dr Williams was the Deceased’s weight gain. He wrote in the same report that “the relative rapidity of weight gain may be responsible for the problems which have presented themselves”. I should note that it appears from the documentary evidence that this weight gain continued thereafter.

In late 2008, and in light of the Appellants’ continuing concern about the Deceased’s apparently deteriorating health, they arranged a further consultation for the Deceased with their GP (Dr W.S. Whitby). There is, in the available evidence, no record of that consultation, or of any treatment plan following it.

It is the Appellants’ case that after the tests and consultation in 2008 the Deceased was not seen by Dr Whitby, or by any doctor, prior to her admission to hospital. They contend in particular that a note in the hospital records to the effect that she had been seen by a doctor on 26 May 2010 is a “wilfully dishonest statement, plainly with the purpose and intent of ‘arranging’ that the death certificate would be signed by Doctor W. S. Whitby”.

The Appellants plainly feel that there must have been something by way of medical intervention that should have been done that was not done in the period 2006 to 2010, as well as at the Hospital when she was admitted there on 24 June 2010; and that thereafter the medics and the Hospital conspired to cover up clinical negligence. Noting that Dr Whitby never instituted any treatment or prescribed any medication despite (for example) evidence of raised ESR, Mr Oakes submitted that:

“Plainly there are issues of clinical negligence in the period 2006 – 2010 and more particularly on 24 and 25 June 2010 [see below], arguably that negligence is directly related to the cause of death.”

It is to be noted, however, that (except of course in these proceedings instituted by the Respondent) these matters have not been the subject of civil proceedings; and nothing I say should be taken to indicate any conclusion on the suggestions of medical negligence which the Appellants have advanced but not formally pursued. That said, and put generally, the picture which emerges is captured in an earlier letter (dated 10 October 2006) from Dr N Hudd, a locum Consultant Physician, to Dr Whitby reporting to him on the results of thyroid function and blood tests. Having noted, amongst other things, the high ESR to which I referred earlier (and which, though elevated, was some way below the 100mm/h which according to a text book relied on by Mr Oakes is considered to indicate cause for immediate concern), and which he considered to be “probably secondary to other factors”, Dr Hudd concluded as follows:

“There are clearly a lot of problems on a number of fronts but as I said in my last letter Samantha’s mother did seem to react fairly positively to my suggestion that the relative rapidity of weight gain may be responsible for the problems which have presented themselves. I do think it makes a consistent picture.”

The reasons for the Deceased’s rapid weight gain after 2000 are not entirely clear from the evidence. The Appellants ascribe it to “overwhelming emotional trauma, well beyond the acceptable norms of purported civilised society” – a reference to what they contend was “state-sponsored criminal conduct”. They maintain that until 2000 the Deceased had led an active life, both physically and mentally, and that “albeit born Down’s syndrome, The Deceased had no congenital or any medical condition of any concern”. They described the weight gain as “unexpected”. However, the Deceased’s medical records refer to the Deceased’s mobility problems; these would have been likely to increase with continued weight gain and it was no doubt increasingly difficult for Mrs Oakes, who was, in their reduced circumstances, the Deceased’s sole carer, to keep her active.

In any event, and whatever the reasons for it, the Deceased’s weight was, by 2010, undoubtedly a problem. I note that on subsequent medical examination after her death it was recorded that the Deceased’s weight was 88kg, her height 1.45m and her Body Mass Index was accordingly 41.8: that is within a range which would be characterised as “morbid obesity”.

On 24 June 2010, the Deceased was admitted to the William Harvey Hospital after being unwell for a few days. She was taken there by ambulance. She was accompanied by her mother. According to the South East Coast Ambulance Service notes, she had partly collapsed at home. Those notes record that her lips had turned blue/purple; she was only partly conscious; she was very pale and sweaty; she had pains in her abdomen and chest; her abdomen was distended, after episodes of diarrhoea; she had a headache and nausea; she was lethargic; there was purple mottling on her legs, which were swollen. The interpretation of an ECG taken in the ambulance stated “NSR” (Normal Sinus Rhythm).

Sadly, the Deceased never returned home. She died on 25 June 2010 at about 01.30, and so only hours after being taken into hospital. I turn to the details of her deterioration in hospital over the evening of 24 June 2010 and early morning of 25 June 2010.

On the Deceased’s file there are quite detailed hospital notes of her treatment immediately before her death. As I explain later, the Appellants contend that some of the contents of that file are not contemporaneous and were contrived or falsified and inserted later. However, in this part of this judgment I describe the contents of the file as now comprised, and turn later to discuss their authenticity.

An initial assessment on the Deceased’s admission to hospital in the mid- afternoon (15.37 hrs) of 24 June 2010 showed trace blood and excess protein in her urine.At approximately 5:00pm, Dr Krishnaiah, who I understand was the A&E doctor on duty at the time, conducted an examination of the Deceased and took a blood test which appears from its time stamp to have been analysed at 5:14pm. Some of the text on the notes was obscured by the blood test results on the copy that was provided, but a treatment plan was set out in a following page which, at point 10, mentions an ECG. The A&E doctor queried whether the Deceased was suffering from a left lung infection, and also advised a chest X-ray.

According to a scribbled note on the bottom of subsequent blood science results, this X-ray was conducted at 5:58pm. There is also a further note which states “sats 93%” and, at 7:30pm, a note which states “sats 98%” and clarifies that the Deceased was on oxygen at the time.

I have not seen the requested X-ray, but a printed report records that “the possibility of an effusion [a collection of blood] cannot be excluded”. In a subsequent meeting between Mr Oakes and senior staff of the Respondent on 6 January 2011 (which is itself of some importance and to which I shall return), Dr Williams is noted as having confirmed that an embolism would not show up on an X-ray of this type.

With the notes on the Deceased’s file there was also an ECG read-out. This is time-stamped at 6:37pm on 24 June 2010. It does not record the patient's name anywhere on it; but in the top left hand corner it states that it relates to a “Male”. Typed notes on the document in the top right hand corner state that there is a “T-wave abnormality, possible anterior ischemia” and that this is an “abnormal ECG”. The abnormalities recorded are, according to the evidence, typical in the case of patients who have had a large pulmonary embolus, or other cause of hypertension and right heart strain, or anterior myocardial infarction.

Also in the Deceased’s hospital file there are two pages of handwritten notes, both of which appear to be in the same handwriting and the first page of which states the writer to have been Dr Shamin Ramasamy (“Dr Ramasamy”), the locum registrar charged with the Deceased’s care. The second of the two pages appears to be signed by Dr Ramasamy. The Deceased was seen by Dr Ramasamy just before she was moved to the Clinical Diagnostics Unit (CDU) at 11:40pm. The notes are time-stamped 11:40pm.

On the first page of those notes, Dr Ramasamy briefly recorded the immediate background to the Deceased’s admission to hospital, noting (amongst other things) that she had “looked blue”. The notes go on (on the same page) to record a regular heart beat and that the Deceased still had oxygen saturation of 98%, though it appears that she was on oxygen. Still on the first page Dr Ramasamy notes that her lungs were clear. Mild tenderness of of the Deceased's abdomen is recorded.

The second page of the notes record (in the top left corner) the results of blood tests which appear from other notes to have been done at 17.44 hrs, including creatinine levels (a measurement of kidney function) of 119. I have not seen a computer print-out of these particular results, but Mr Oakes accepted that there was a blood test with this result. Just under those tests Dr Ramasamy recorded the results of later venous blood gas tests timed at 00.30. These record, amongst other results, a pH value of 7.07.

Under those results Dr Ramasamy recorded under the heading “Problems”: (1) worsening metabolic acidosis (when the body produces too much acid, or when the kidneys are not removing enough acid from the body), (2) hyperventilating and (3) “ischemic changes on ECG” (which would suggest blood flow difficulties). Beneath that the notes record an impression or diagnosis that the acidosis could be due to the dehydration and diarrhoea; and there is then recorded “collapse -> PE”. Under that and a heading “Plans” but with an arrow connecting to the venous blood gas results, there is set out a treatment plan, which amongst other things prescribes “therapeutic clexane (also known as heparin, an anticoagulant) for PE”, presumably in response to his tentative diagnosis of a pulmonary embolism. The notes also refer under the same heading to the administration of IV fluids (presumably in order to address dehydration), and for blood tests to be repeated.

Not initially included in the Deceased’s file, and only provided later to the Appellants, the evidence before me contained printed Blood Science Results timed at 00.56 on 25 June 2010, which are reported on their face as having been received at 12:56am. The report of these blood science results indicated sufficient concern that attempts were made by the laboratory staff to ring the ward after the results had been authorised to “avoid delay in reporting”. The notes further record that they received no reply.

These blood science results show a further increase in creatinine to 144. Mr Oakes fixed on this as indicating renal failure; but comments from Dr Williams and Dr Ramasamy during a “complaints meeting” held at the Hospital on 6 January 2011 (“the Complaints Meeting”) suggest that these raised levels were not critical and could have been due to the dehydration and diarrhoea. A note made by someone on behalf of the Respondent on the bottom of these blood science results also shows that this was confirmed by Professor Colin Brown, Professor of Renal Medicine at Sheffield University Medical School. Although I do not place any great weight on this last piece of evidence, it is noted that, despite the increasing creatinine levels, all the evidence points to this not being a decisive factor in the Deceased’s death.

A further blood science report (also marked as received at 00:56) recorded raised troponin levels. These are the subject of a note underneath as being a sign of, amongst other things, pulmonary embolism and renal failure; but there is also a warning that they should not be interpreted in isolation. This particular result does not therefore take diagnosis of the cause of death any further.

It may be that the reason why the laboratory received no answer to their call to the ward was that by then the Deceased had suffered further collapse, and the ward staff were engaged in seeking to reverse this. It appears from the evidence that the Deceased was the subject of a failed resuscitation attempt from approximately 1:15am. As noted previously, her death occurred at about 1:30am on 25 June 2010.

As I explain in more detail later, the cause of death thereafter recorded was pulmonary thromboembolism due to deep vein thrombosis associated with Down’s syndrome, obesity and mobility problems. As also foreshadowed above and elaborated later, the Appellants reject this, and suggest that the true cause of death was probably renal failure, and in any event was disguised by falsely concocted documents to avoid suggestions of clinical negligence in the Deceased’s treatment.

The twin pillars of the Appellants’ allegation of forgery are that the Respondent and its witnesses have falsely relied on both the ECG read-out timed at 6.37pm (“the ECG read-out”) and the second page of the notes signed by Dr Ramasamy. Indeed, the Appellants contend that the falsity of each demonstrates the falsity of the other.

First, the Appellants have urged strenuously that the ECG read-out does not relate to the Deceased, but to some unidentified male patient. Mr Oakes insists that the ECG read-out was dishonestly introduced by the Respondents into the Deceased’s file notes in order to substantiate or confirm the cause of death relied on by the Respondent and thereby to disguise the true cause of death, cover up medical negligence and pervert the course of public justice. The Appellants contend that the only ECG taken of the Deceased was in the ambulance conveying her to hospital, and that none was taken in the few hours that she was at the hospital.

Secondly, but equally strenuously, the Appellants contend that the second (signed) page of Dr Ramasamy’s notes was also concocted after the event and inserted into the Deceased’s file to the same end that the ECG read-out itself had been inserted. They contend that any notes in the file referring to what they call the forged ECG read-out timed at 6:37 pm on 24 June 2010 were altered (or as Mr Oakes contentiously put it, “doctored”) to support the same false cause of death.

Far from supporting the Respondent’s case, Mr Oakes contends that the fact that the ECG read-out is referred to on the second page of what the Respondent has presented as contemporaneous notes (both as part of the Deceased’s treatment plan and later as part of her diagnosis)purportedly made by Dr Ramasamy, is further evidence of forgery and dishonesty. Mr Oakes submitted that there was “plainly no surprise that two forged documents are consistent with each other”.

The question is whether there is any support for Mr Oakes’ very serious allegations of forgery sufficient to warrant, at the least, further investigation with a view to a criminal prosecution. Deputy Master Mark thought there was not; and I agree. I turn to explain that conclusion by dealing in turn with each of the principal pillars of the Appellants’ case.

In my judgment, there is no evidence of any weight to contradict the fact, and there is no real doubt, that there was an ECG test done on the Deceased at the Hospital in accordance with the treatment plan recorded in the Deceased’s admission notes as detailed in paragraph [22] above.

Mr Oakes has sought to support his conviction that no such ECG was done on the basis of (a) the reference to the subject of the ECG read-out being male (b) what he depicts as efforts to disguise that fact and (c) what he contends was an admission to this effect made by Dr Debashis Mukherjee (“Dr Mukherjee”) at the Complaints Meeting on 6 January 2011. (This was attended by Lesley White (Deputy General Manager Medicine & A&E), Dr Williams, Dr Mukherjee, Dr Ramasamy, Dr Bandipalyam Prathibha (a Consultant in Respiratory matters) and Mr Oakes.)

As to (a) in paragraph [41] above, the fact that the ECG read-out is marked as relating to a male is obviously curious, and on the Respondent’s case most regrettable. It has fuelled this most unhappy dispute. The Respondent apologised but maintained that the ECG did relate to the Deceased. It was in her file. As previously recorded, the Respondent maintained that there is no other reason to believe that it related to anyone else.

As to the curious and unsettling reference to the subject of the ECG read-out being a male, it was explained to me by Counsel for the Respondent on instructions that the computer-generated print-out is programmed to mark “male” as the default selection if the operator does not specify otherwise. This is both plausible and consistent with the plain fact that the operator does not appear to have entered in any specific information in the spaces provided.

Further, the fact is that earlier notes in the Respondent’s records, which undoubtedly refer to the Deceased (under her hospital number 01349219), expressly stated that an ECG test was to be made as part of her treatment plan (see paragraph [22] above). I did not understand it to be suggested, and there is no evidence, that those earlier notes referring to it and specifying the need for an ECG as part of the treatment plan had also been falsified or concocted. In any event, such an ECG would have been necessary and routine.

In short, the fact that such an ECG was expressly directed to be done for the Deceased, the fact that the timing is consistent with it having been so, and the fact that there is no evidence beyond Mr Oakes’ surmise that the read-out was not always in the Deceased’s file all tell overwhelmingly against Mr Oakes’ otherwise unsupported conjecture.

I note that the Deputy Master, in concluding that he could “see no reason to suppose that this was a forgery intended to cover the course of justice… [and] …. no conceivable reason why the hospital put this report onto her file as a way of protecting itself” (paragraph 9 of his Judgment), nevertheless did not exclude the possibility that “it may have got onto her file by mistake. It may relate to somebody else…”. However, I have had a more extensive opportunity to review the available evidence; and in my judgment, and given also that the reason why the computer-generated designation of the subject as “male” has been explained, there is nothing of substance to weigh against the conclusion that the ECG read-out in question related to the Deceased.

As to (b) in paragraph [41] above, I have considered carefully also the Appellants’ point that the doubt as to the ECG read-out is exacerbated by the fact (as I accept it to be) that the description “male” in its top left corner was, when the print-out was first presented to them, obscured by a fold in the paper. The Appellants suggested this was highly suspicious. I would accept that the fold did obscure the very notation that has caused such difficulty. But, like the Deputy Master, I do not accept that it is demonstrative of forgery and contrivance.

In my view, the suggestion that the read-out was carefully folded so as intentionally to obscure the reference to “male” is far-fetched, and in any case no stronger than the evidence it is said it was intended to obscure. Such a stratagem also seems so unlikely to succeed as to be unlikely to have been pursued; honest mistake is a much more likely explanation. I also note that by the time of the Complaints Meeting on 6 January 2011 the reference to “male” was common knowledge.

As to (c) in paragraph [41] above, and Mr Oakes’ conviction that what Dr Mukharjee (whom he now has depicted as a “de facto whistle-blower”, and who is now working abroad) told the Appellants at the Complaints Meeting, that no ECG test was undertaken for the Deceased at the hospital, it is plain that the Notes of the Complaints Meeting (“the 6 January 2011 Notes”), which were prepared by the Respondent but which the Appellants have not challenged, record no such statement.

I can find no support either for Mr Oakes’ contention (see paragraph [41(c)] above) that Dr Mukherjee admitted that no such ECG test was made at the Hospital. The 6 January 2011 Notes neither record nor imply that he made any such admission. On the contrary, those notes record that he “reported as the test was in her file note it was unlikely to be anyone other than SO’s result”.

Thus, the only broadly contemporaneous evidence appears contrary to what has become Mr Oakes’ recollection of what he was told. I have not been provided with any other evidence to support Mr Oakes’ account in this regard. Mr Oakes did not initially mention any such thing; his conviction has become embedded as the years have gone by: but there is no evidence to support it. The development of a firm conviction in such a way is not uncommon: no doubt the conviction is honestly held; but it may have no feet in reality.

The fact that the ECG read-out, although probably generally supportive (as noted above) of the cause of death as found and apparently relied on by Dr Ramasamy in reaching a preliminary diagnosis, was not relied on by the Respondent as indicative of a pulmonary embolism, further adds to the unreality of Mr Oakes’ contention. There is, at the least, some inconsistency in the Appellants’ case in maintaining that what they call the “forged” ECG did not evidence a pulmonary embolism anyway.

As to this, and as indicated previously, there is some uncertainty whether the disputed ECG read-out does or does not indicate an imminent risk of pulmonary embolism. The Appellants insisted it did not, and claimed to be supported in that context by a view they said they had obtained from an eminent Irish Pathologist, Professor Jack Crane CBE, MBch, FRCPath (“Professor Crane”), though Professor Crane has never given any formal evidence and Mr Oakes confirmed that he was not in a position to provide evidence from him, not least for want of funds. The Deputy Master appears to have accepted that it did not (see paragraph 9 of his judgment).

The 6 January 2011 Notes include the following passage under the heading “ECG Test”:

“AO [the Second Appellant] showed the report produced was for a male patient. DM [A&E Consultant] apologised for this error. AO asked for confirmation that this was SO’s [the Deceased’s] actual ECG. DM reported as the test was in her file notes it was unlikely to be anyone other than SO’s result. LW [Deputy General Manager Medicine and A&E] stated that an ECG would have been done whilst SO was in the ambulance and a copy of this would be requested. DM stated the ECG would only have been carried out to check for abnormalities. AO asked if the ECG would be used as part of the observations. CW [Consultant, Diabetes/Endocrinology] confirmed it would and also stated that it did not indicate a pulmonary embolism.”

This extract is not easy to unravel. In particular it is not clear which ECG (the ambulance ECG or the disputed Hospital ECG read-out) “it” refers to in the final phrase. I accept that this is not an issue on which the evidence, untested by cross-examination, provides sufficient certainty for a determination. However, if (as Mr Oakes contended) it refers to the disputed Hospital ECG read-out and CW’s statement that it does not indicate a pulmonary embolism is indicated, that seems to undermine the Appellants’ case as to the reasons for its dishonest introduction; whereas if it refers to the ambulance ECG, then CW’s confirmation does not advance the Appellants’ case.

In summary, the Respondent's contention that the disputed ECG read-out does relate to the Deceased seems to be well supported; Mr Oakes' suggestions to the contrary appear to be somewhat confused. I turn next to the reference to the results of the ECG read-out on the second page of Dr Ramasamy’s notes relating to the Deceased, which itself is strong evidence in support of the conclusion that the disputed ECG read-out also related to the Deceased, unless, of course, that page was fabricated for that purpose, as the Appellants submit.

The correlation between the ECG read-out and the entries recording parts of it on the second page of Dr Ramasamy’s notes in effect requires Mr Oakes to show grounds for doubting both; and he did not shrink from contending that indeed that page (though not the first page) was a forgery.

Mr Oakes’ grounds for dismissing the second page as a forgery were always strenuously advanced but, initially at least, somewhat unspecific. However, latterly, in one of his many missives to me after the hearing in May 2015, and in particular in a “Critique” of evidence given in a witness statement also after that hearing by Dr Jane Fisher, a Consultant Cardiologist at the Hospital, he advanced three specific grounds.

These can be summarised as follows: (a) that there is no patient name on the second page (in contrast to the first page, and other Hospital records, and I should imagine best practice); (b) that the reference to “venous gases 0030 hours” demonstrates falsity since on the basis of the note being timed (according to its first page) at 23.40 Dr Ramasamy was “reviewing a blood test not yet taken”; and (c) that it is “very strange” (to the extent of being indicative of forgery) that Dr Ramasamy “is noting an ECG of an unknown male patient of 6.37pm as evidence of a pulmonary embolism”, especially given that there is no reference to the ECG on the first page of the note and “even the forged ECG (6.37)… does not evidence pulmonary embolism…”

I do not consider that these grounds, whether singly or in combination, begin to support such a serious allegation of forgery (or indeed the Appellants’ further charge that every person relying on the second page of the notes and the ECG read-out is seeking to deceive the Court with an intent and tendency to pervert the course of justice).

Taking each ground in turn, (a) the second page looks like a continuation sheet; but I cannot in any event attribute any real weight to the fact that the Deceased’s name is not on it; (b) the time stated as relating to the first page does not require that only incidents or observations prior to or at that time should be recorded: it may very well be that the second page was written over the course of an hour or so, and indeed may possibly have been completed later; and (c) the ECG readings are simply part of the various considerations which apparently led Dr Ramasamy to a diagnosis and treatment plan, and there is at the very least debate as to what the ECG read-out revealed (whatever Dr Williams may or may not have said).

I do not consider that the evidence raises any real doubt as to the authenticity of the second page of these notes such as to warrant allowing this appeal with a view to enabling a further inquest and criminal investigation, especially given the standard of proof required to overcome the inherent unlikelihood of such a fraud even in civil cases, leaving aside the standard of no reasonable doubt that would be required to be satisfied in any criminal proceedings.

It remains for me to note, for comprehensiveness, that in support of this serious allegation of forgery Mr Oakes pointed to the fact that at one time there was, in addition to a fold obscuring the reference to the patient being a male, a torn-off part (in the bottom left corner) where he has discovered from a copy there was a reference to a name, “Buckland”. Mr Oakes sought to contend that this was all purposefully done to disguise the truth that the ECG read-out had nothing to do with the Deceased. I think it was insinuated that the “male” might be a Mr Buckland. I asked about this at the hearing in May 2015 when the point was advanced by Mr Oakes. It was explained on behalf of the Respondent that the reference to “Buckland” reflected the fact that the ECG machine was originally registered for use at another hospital within the East Kent Hospitals Group, namely Buckland Hospital (which is in Dover) and was at some time transferred to the Hospital. Mr Oakes was constrained to accept this explanation; and his riposte that there was no evidence that the machine had been transferred lacked both conviction and substance.

In short, I have concluded that there is no real substance in the Appellant’s case of forgery. Further, even if I had considered there to be room for doubt as to whether all the second page was authentic (in the sense of an accurate contemporaneous record relating to the Deceased as distinct from a subsequently developed or amended record), the fact would remain that the identification of the cause of death did not ultimately depend either on these notes or the ECG read-out to which they appear to refer. Although Mr Oakes has repeatedly insisted that the central issue is his allegation of the forgery of medical records, the ultimate issue really is whether there is any real doubt about the findings made as to the likely cause of death such as to warrant continued retention of the Deceased’s body in cold storage and a further inquest or investigation with a view to criminal proceedings. I turn to describe the process and conclusions of the post-mortems directed by the Coroner that led to certification of the cause of death.

Since the Deceased died within 24 hours of admission to hospital, the Coroner was required to be and was informed. She ordered a post-mortem.

A post-mortem examination was carried out on 29 June 2010. The examination was attended by two representatives of HM Coroner, a Senior Mortuary Anatomical Technician and a Mortuary Anatomical Technician. The report is detailed. Amongst the matter recorded was that “the pulmonary arteries appeared free of atheroma but were occluded by folded thromboembolus”.

That report was reviewed by a pathologist, Michael John Heath MBBS FRCPath DMJ (Clin et Path) (“Dr Heath”). Dr Heath considered that the most significant post-mortem examination findings were “pulmonary thromboembolism, Down’s syndrome and marked obesity”. His report records that he had “taken photographs of the pulmonary thromboembolus in situ and removed from the pulmonary artery”. His opinion as to the cause of death, signed on 11 July 2010, was “on the balance of probability, due to natural disease, namely, pulmonary thromboembolism due to deep vein thrombosis associated with Down’s syndrome, obesity and mobility problems”.

Dr Heath also arranged for histological examination of retained tissue to be undertaken. In a subsequent supplementary report (dated 5 September 2010), and having reviewed 24 histological sections on 15 slides, he stated his opinion that “the most significant histological findings were intense congestion and intra-alveolar haemorrhage, macrovesicular steatosis of the liver and organising thrombus”. He confirmed his conclusions in his earlier report.

A second post-mortem examination was directed. It was undertaken by Dr D E Fish BSc MB BS MRCP FRCPath (“Dr Fish”) and it is dated 18 July 2010. It was referred to but not provided to me at the oral hearing and was not available to Deputy Master Mark. A copy of it was provided to me in mid-November 2014 after my repeated request for it in light of the Appellants’ submission that it was inconsistent with Dr Heath’s report.

In the event the inconsistency apparently sought to be relied upon is Dr Fish’s observation that the Deceased’s liver, gall bladder and kidneys were all normal; whereas it is said that Dr Heath noted steatosis in the liver. The Appellants also suggest that Dr Fish’s work was “sloppy” in failing to mention the Deceased’s raised creatinine results.

However, two important matters are clear from Dr Fish’s report. First, he records that he “had access to photographs taken by Dr Heath demonstrating emboli occluding both main pulmonary arteries and of embolus removed from the pulmonary artery trunk (see attached). I also saw a fixed specimen of embolus removed from the deceased by Dr Heath.” Secondly, his opinion, consistently with Dr Heath, was that the cause of death was

“(a)

Massive pulmonary embolus due to (or as a consequence of)

(b)

Right deep vein thrombosis”

His comments were as follows:

“Natural causes. Obesity, immobility and dehydration predispose to the development of deep vein thrombosis with the subsequent risk of embolisation. Massive embolisation causes rapid death. The patient may present with chest/abdominal pain, breathlessness and peripheral cyanosis as in this case. Her acidosis, low oxygen saturation and ECG changes were all consistent with a pulmonary embolism. There was no histological evidence of renal failure or abnormality of the pituitary gland or adrenal glands.”

As previously explained, central to the Appellants’ case is their contention that the ECG read-out which is marked “Sinus rhythm, T-wave abnormality, possible anterior ischemia, ** abnormal ECG **” and on which both pathologists and the Coroner relied did not relate to the Deceased but some unknown male patient. For the reasons I have given, I do not accept the Appellants’ case in this regard; but furthermore, and as also already noted above, the conclusion reached that the most likely cause of death was a pulmonary embolism does not depend on the ECG read-out.

The Appellants, rejecting the post-mortem reports and the Coroner’s conclusions, are convinced that the real cause of death was untreated renal failure. They submit that the recorded symptoms are indicative of “Haemolytic Uraemic Syndrome and Thrombotic Thrombocytopenic Purpura, characterised by Haemolytic Anaemia”.

However, neither of the Appellants has any medical training. They base these serious and extreme allegations on (a) what they say they were initially told was the cause of death, (b) blood tests showing raised creatinine levels (being an indication of kidney function or dysfunction), (c) the views of medical experts they say they have involved, (d) their own reading of medical text books and (e) evidence they have collated as to findings of serious misconduct made in proceedings before the Disciplinary Tribunals in respect of Dr Heath in two other cases. I turn to deal with each.

As to (a) in paragraph [75] above, the Appellants claim that when they returned to the hospital at about 3:30am, not long after the Deceased’s death, they were told by a staff nurse that the cause of death was acute kidney failure. This was addressed briefly at the Complaints Meeting on 6 January 2011; but it was not verified. There is no other evidence to support it than the Appellants’ say-so as to their recollection at a deeply stressful time in the middle of the night. It would not, I suspect, be usual or proper practice for a staff nurse to make such a pronouncement. But even if that was said, it does not of itself carry much, if any, weight except as fuel for suspicion already held and unalterable.

Turning to what evidence there is to support the Appellants’ increasingly settled belief that the true cause of death was acute kidney failure, which should have been treatable and treated, the main point relied on by them is the fact that histology tests of the Deceased before her death do suggest increasing creatinine levels. The last blood science results (taken some time before their marked “Receipt” time of 00:56 on 25 June 2010) revealed her creatinine level as 144 umol/L, raised from 119 in earlier blood results at about 19:44 on 24 June, both exceeding the normal range of 49-90, and plainly of some concern (hence, I assume, the letter R under the column “Flag”). The Appellants surmise that the level might have gone higher thereafter before death.

However, there is nothing to suggest that these levels of creatinine indicate kidney failure. The following extract from the notes of the Complaints Meeting encapsulates the Respondent’s position in this regard:

“AO commented when he and his wife revisited the hospital after SO’s death he was told by a member of staff the cause of death was severe kidney failure. AO felt there must have been some basis for a medical member of staff to state this. AO asked what diagnosis was produced to give this statement, were there any other comments that would have given rise to this diagnosis? SR [Registrar] commented that there were raised levels of creatinine but this could have been due to dehydration and diarrhoea. CW commented that the levels were very modest and if someone presented in the A&E Dept. with similar levels he would not say they had severe renal failure.”

Indeed the Appellants themselves accept this. They apparently obtained a view from a Professor of Renal Medicine who confirmed that the levels reported were not critical. Accordingly, their case in this regard really depends upon the validity of their surmise that the Deceased’s creatinine levels were rising fast and might have reached critical levels before her death. But, subject to paragraph [80] below, this is unsupported; and it tends to be undermined by the fact that the last blood results received at 00:56 on 25 June 2010 are likely to have been done within about an hour of then.

The Appellants contend in response to this that their supposition is supported by post-mortem histology tests showing what Dr Heath noted as (a) “massive macrovesticular steatosis with numerous ballooned hepatocytes” in the liver and (b) “Autolytic….casts in tubules” in the case of her kidneys. They do not explain what support to their overall theory these results and notes provide.

However, Dr Heath, who made the findings, specifically confirmed his opinion as to the cause of death notwithstanding them; and Dr Fish, subsequently, and after apparently considering the histology, reached the same conclusions. Absent evidence to the contrary, there is no reason or basis to depart from their findings and conclusions. Especially after the lapse of time, they must, in my judgment, be accepted.

The fact is, as the Deputy Master emphasised at paragraph 11 of his Judgment, that the Appellants have provided no written medical evidence to support their own unqualified theories. Although they have apparently obtained assistance from Professor Crane, he has never provided any report, either formal or even informal. They have referred to “representations” from a Dr Ian Calder MD FRCPath; but they have produced none. The evidence is, at best, purely hearsay.

The Appellants have relied on medical text books; and they have obviously studied these assiduously; but that is no basis for contradicting the considered opinion of specialists who have considered the particular results in the particular case, unless their expertise is contradicted on solid grounds meriting further enquiry and testing. In my judgment, it has not been so.

That leaves the Appellants’ contention to the effect that no weight should be given to the findings of the two pathologists instructed to assist the Coroner. In this context, the Appellants focus especially on Dr Heath, and seek to cast doubt on his competence generally and his procedure in this case. They submit that he (a) has been found guilty of serious misconduct by two Disciplinary Tribunals of the General Medical Council (“GMC”) relating to work he did at about the same time as his work which is the subject of this case and (b) relied on forged records and perjured evidence.

It is not necessary or appropriate for me to comment on those two cases, beyond what follows. In the first case, which involved forensic pathology and not coronial pathology work, the Disciplinary Tribunal did indeed find the case against him proved, but noted that he had “undertaken some 10,000 forensic pathology cases, of which none had been criticised prior to the two cases related to these proceedings, and none has been criticised since”. The Tribunal accepted his agreement not to provide forensic pathology services to anyone ever again and to confine his work to coronial pathology, noting that “Several of HM Coroners attested both in writing and orally to the very satisfactory quality of your coronial work”. In the second case, which arose out of a coronial post-mortem in August 2005 and was adjudicated in July 2010, Dr Heath admitted falling below the standards of a competent pathologist, but the Panel accepted there were extenuating circumstances. It noted the testimonials it had received of his “usual thoroughness…compassion and…general professionalism” in determining his fitness to practice was not impaired.

In short, there is in my judgment no fair and reasonable basis for extrapolating from these decisions the conclusion that Dr Heath is likely to have misconducted the post-mortem of the Deceased in this case.

There is no evidence or basis for any such conclusion in respect of Dr Fish. The Appellants’ case in respect of him is to the effect that he relied excessively on the Coroner’s Report based on the “forged” ECG and failed to take into account (a) laboratory evidence of raised creatinine levels and (b) Dr Heath’s findings on the basis of the histology slides, and was “sloppy”. None of this carries any substantial weight, for reasons already apparent from my previous discussion.

The Appellants’ attempt to disparage the two Pathologists and their reports and conclusions has simply not been sustained. The abiding message from both reports is their conclusion that the cause of death was indeed pulmonary embolism; and in point of more detail I note that this was based also on photographic and sample evidence. I cannot accept that both made an elementary mistake of confusing a post-mortem blood clot with a pre-death pulmonary embolism.

I turn lastly to consider the Appellants’ overarching contention and concern that the application for the burial or cremation of the Deceased is calculated to cover up forever clinical evidence and conduct amounting to involuntary manslaughter and has a tendency, and constitutes an intention, to pervert the course of public justice. The Appellants rely on the common law, and pray in aid also Article 2 of the Convention on Human Rights. They have become ever more insistent in this regard, as the volume of correspondence and the threats of proceedings (and in some cases imprisonment) to all who have ever been concerned in this case attest.

A fundamental premise on which the Appellants base their overarching contention is that there are in existence criminal proceedings instigated as private prosecutions by the Appellants and also an extant application for an inquest. Is that premise correct?

The position in relation to criminal proceedings appears to be as follows. Following a decision by the Kent Police not to investigate, Mr Oakes attempted to bring a private prosecution on 1 May 2013 against, amongst others, the Respondent.

Although Mr Oakes presented to me the information that he laid before the magistrates, he has conceded that this attempt failed at the first hurdle when Malcolm Dodds (“Mr Dodds”), in his capacity as Clerk to the Justices for Kent, refused to issue the private prosecutions.

Mr Dodds set out his reasons in a detailed letter to the Appellants dated 28 May 2013. These reasons included, first, that even if “the ECG of an unnamed male patient may have been introduced into the medical records of your daughter there is no prima facie evidence of criminality”; and secondly, that even if there was conflicting evidence as to the cause of the Deceased’s death, that did not give rise to any prima facie case of criminality either; and thirdly, that the informations laid by Mr Oakes smacked of a like abuse of process as the nineteen or more actions previously brought by him, all of which were struck out (leading to him being declared a vexatious litigant in 2000) and a misguided use of criminal proceedings to deal with essentially civil matters.

Mr Oakes subsequently sought to appeal that decision under section 111(1) of the Magistrates Court Act 1980 in June and July 2013. The documentation he had prepared was returned to him by a Ms Mahmoud on behalf of the Courts Service under cover of a letter dated 9 July 2013, in which she explained the necessary procedure by way of Case Stated. Rather than follow the procedure as explained (which he was warned in the same letter would also require prior permission given his status as a vexatious litigant) Mr Oakes wrote back, with a copy to Lord Judge as (then) Lord Chief Justice, returning the papers, demanding that a hearing be set down, and stating (in terms which have become characteristic of his communications with the Court):

“We expect a hearing date for this Appeal to be set down forthwith!!!”

It appears from another letter from Mr Oakes dated 26 August 2013 addressed to Ms Mahmoud and a Mr Oliver Cousins that there was a further response from the Court Office dated 14 August 2013. That response is not in evidence. However, it seems quite plain that such response echoed or was to the same broad effect as Ms Mahmoud’s letter of 9 July 2013, since Mr Oakes’ letter of 26 August 2013 (which is in evidence, and which he copied to Lord Judge and Sir John Thomas as LCJ designate) accused both Ms Mahmoud and Mr Cousins of misconduct in public office amounting to perverting the course of public justice.

The fate (that is, failure) of Mr Oakes’ applications may also be inferred from two further letters. The first is another letter dated 26 August 2013 in which Mr Oakes accused Lord Judge of “wilfully and recklessly” ignoring his earlier correspondence, which he stated “tarnished” Lord Judge and suggested “an abject failure to carry out the duties and responsibilities of office with honesty and integrity”. The second is a letter dated 1 October 2013 from Mr Oakes to Sir John Thomas, as he then was, again accusing Lord Judge of having no interest in and failing to uphold the rule of law, and demanding that the Administrative Court “do order the issue of two Private Criminal Prosecutions in the Folkestone Magistrates Court”.

It is quite plain, and indeed at the hearing before me on 15 October 2014 I understood Mr Oakes to have conceded, that the Appellants have never succeeded in putting in motion criminal proceedings; and I am quite satisfied that there are no extant criminal proceedings that would impact on my decision.

As to any application for an inquest, I understand that in August 2011 Mr Oakes met with Kevin McGinty, in-house counsel at the Attorney-General's office. During that meeting Mr Oakes stated that Mr McGinty agreed to put Mr Oakes’ application for a court-ordered inquest pursuant to Section 13 of the Coroners Act 1988 before the Attorney-General. Although Mr Oakes states in his paper application that a decision is pending, during the hearing he conceded that it is unlikely that his application is being given serious consideration by the Attorney-General. It was also brought to my attention that the Coroners Act 1988 was superseded by the Coroners and Justice Act 2009 in 2009, and therefore the application itself may have been brought on false grounds.

I have therefore concluded that, as Counsel for the Respondent expressly confirmed after I had requested him to check the position again, there are no extant proceedings, either criminal or civil, which would require the body either as evidence or to conduct further tests upon. As mentioned previously, I have also concluded that there is no basis for Mr Oakes' disparaging assertions of deceit on the lawyers acting for the Claimant which, in the case of Mr Patel, have taken the form of a formal complaint to the Bar Standards Board. Such accusations are simply the product of Mr Oakes’ anger and have no grounding.

It follows also, in my judgment, that the Appellants have no basis for any Article 2 claim either.

Lastly, I have also made enquiries of the Respondent as to whether a post-mortem examination would be of any real utility nearly five years after the death. On the basis of the evidence of the Respondent’s pathologist, Dr Perenyei, the position appears to be as follows:

I propose to dismiss the appeal.

I can understand and have very great sympathy for the severe distress and indeed agony that the death of their much loved daughter, and their conviction that its causes have been concealed to protect the Respondent, has caused the Appellants. It is an agony that no court process can remove.

Their despair has turned to accusing everyone involved: the doctors, the pathologists, the police, and the judiciary at every level, of the most serious dereliction of duty (and worse). They have written to the Lord Chancellor and a number of his predecessors, to the present Lord Chief Justice and his predecessor, to Attorneys-General past and present, and to the Metropolitan Police Commissioner (with whom they have demanded I should personally liaise). They have threatened Counsel, the Respondent’s solicitors and me with imprisonment for complicity in covering up a homicide. They have threatened proceedings for corruption, on the basis that a decision against them would be evidence of it and risk bringing the whole justice system into disrepute. They have sought a further (third) hearing in order to bring home these complaints, and demand apologies. In their latest communication to me they have urged me to seek advice as to my personal position, and as a means of saving myself and others from charges of “complicity in the cover-up of a homicide”, to fashion some sort of order to pave the way for criminal proceedings.

I have sought to be restrained in addressing these extraordinary accusations and threats so as to focus upon and to answer dispassionately the issues actually arising in this appeal, and in recognition of the tragic nature of the Appellants’ loss and their resulting despair turning to conviction that the truth has not been revealed. I have also taken into account the fact that the Respondent is by no means blameless: in particular, the apparent failure of the doctors concerned to ensure that all medical records should be identified on every page as referring to a named and/or numbered patient has encouraged the Applicants’ suspicions and concerns.

I have given the Appellants two very full hearings. I have invited further discussion and review prior to the hearings. I have encouraged the parties to meet to see if there is any way of resolving the matter. Although I have strongly discouraged further correspondence and submissions thereafter, Mr Oakes has continued a steady stream of correspondence and commentary; I fear my own delay in finalising this judgment (for which I apologise) has tended to exacerbate this. Nevertheless, and as I have indicated previously, I have sought to read and re-read every document provided as evidence in the case; and I have attempted to assimilate each and every communication in the now voluminous series without being distracted by the menacing tone which Mr Oakes has chosen to deploy in correspondence with the Court and others (though I should record that his oral presentation was invariably much more measured).

I do not consider that any further hearing before judgment, still less the hearing in chambers such as Mr Oakes has urged over the course of the summer, is at all appropriate. I consider that I have the material enabling me to deal with the appeal on its merits, and must now do so.

In considering the case, I have borne well in mind throughout that there has been no cross-examination or full disclosure, and that if there was real doubt on a material issue such as to raise the real possibility of the sort of fraudulent or criminal activity that the Appellants contend occurred, it could only be resolved by further investigation and a fuller process. However, I have also had to bear in mind the seriousness of the allegations and the difficulty of proving them (especially to the criminal standard in the criminal proceedings which Mr Oakes has had in mind, though I have found that there are none extant).

After careful assessment of all the evidence I do not think any such real doubt has been demonstrated. I can see no reasonable basis for upsetting the conclusions reached by the two pathologists, still less any basis for insisting on the retention of the Deceased’s body for a further uncertain period and denying her a decent burial or cremation. It is time to lay the remains of the Deceased to rest. Nothing can make good the Appellants’ loss nor relieve them. The absolute certainty they crave and the comfort they may have persuaded themselves it would bring are unachievable.

In what I understand to be the absence so far of a Death Certificate it will be necessary to arrange for one. Although I regret any addition to what I imagine are the considerable costs the Respondents have already had to incur, I shall require assistance from their Counsel as to the proper steps to be taken in this regard. It may be that this can be done on paper; but otherwise I would propose it be dealt with at a short hearing after this judgment is formally handed down.

After I had circulated this draft inviting the parties to identify any editorial or obvious errors (as is the usual practice) I should record that I received a further set of submissions from Mr Oakes on the substance of the judgment, asking for this judgment to be “torn-up” to “avoid a charge of misfeasance in public and judicial office” and once more seeking a hearing in chambers. Mr Oakes has continued a stream of correspondence after that.

It is not the purpose of circulating a judgment in draft to elicit a commentary on the judgment. Nevertheless I have read Mr Oakes’ material, which once more focuses principally on his and his wife’s conviction that there was no ECG investigation made in respect of the Deceased whilst at the Hospital, that the ECG read-out in her notes did not relate to the Deceased but an unknown male patient, that the disputed notes were forged and that the Respondents, in relying on their authenticity, have been wilfully, recklessly and culpably dishonest. Mr Oakes plainly also considers that I have not taken into account inaccuracies in the Respondents’ witness statement for the hearing before Deputy Master Mark, and especially the fact that the deponent carelessly confused the ECG taken in the ambulance (which undoubtedly did relate to the Deceased) with the disputed ECG (which he is adamant did not). Mr Oakes has also placed particular reliance on what he describes as “the Kent Police Report” (which I have re-read).

I confirm, in light of Mr Oakes’s main criticisms, that I have taken full account of these matters, including the very regrettable errors in the Respondents’ initial evidence. However, none of these matters causes me to alter the conclusions I have reached as expressed in this judgment.

Correspondence with me and my clerk on the merits of the case or this judgment must now cease. If Mr Oakes considers (as his correspondence makes clear he does consider) that I have erred, then it is open to him to seek and obtain permission to appeal from the Court of Appeal: and see CPR 52.13.