My original post of 4 August (now taken down) was based on the note by Lawtel and media reports: the following is based on a copy of the judgment as approved by the Court
In Rotsztein v HM Senior Coroner for Inner London  EWHC (Admin) 2764 the issue before the court was the balance to be struck between the duty of a coroner properly to establish cause of death and a family’s desire, out of religious conviction, for the deceased’s body to remain intact.
Following the death of 86-year-old Sarlotta Rotsztein, an Orthodox Jew, in September 2014 at the Royal Free Hospital, there were differing medical opinions about the cause of death: the GP attributed it to acute cardiac failure or myocardial infarction; however, the Specialist Cardiology Registrar did not think that the clinical picture was of a primary cardiac event. Her treating consultant, Dr Nagus, advised referral of the case of her death to the coroner because the cause of death was unclear .
The Inner London Coroner noted at the foot of the report of Mrs Rotsztein’s death  that
There is a direct conflict between view of hospital doctors and GP, so -> pm.
Jewish law strictly forbids the desecration of a corpse and requires it to be buried promptly: if possible on the day of death. In a signed witness statement the senior Dayan of the Union of Orthodox Hebrew Congregations in the UK stated that the avoidance of desecration of the corpse was a stronger imperative than the avoidance of delaying a burial . (According to media reports, the Muslim Council of Britain also made a written submission that the case was of general public importance, “in particular to the religious community in Britain. Muslim families who suffer bereavement share the religious concerns of Jews and members of other faiths. These principal concerns are that burial should take place as soon as practicable after death and that there should be no desecration of the body.”)
Mrs Rotsztein’s children sought to persuade the coroner not to order an invasive autopsy and requested a non-invasive post-mortem (at their own expense) to be performed by Professor Roberts at the John Radcliffe Hospital in Oxford, an expert in non-invasive post-mortem procedures. Professor Roberts was willing to perform a CT scan and coronary angiography; and if, in his expert view, those procedures did not reveal the cause of death with a high degree of probability he would have advised the coroner to proceed to an invasive autopsy .
The coroner notified the family that although she had taken their religious objections into account she was nevertheless satisfied that a traditional autopsy was necessary . She sought the opinion of Professor Sebastian Lucas, of Guy’s and St Thomas’s Hospital, whose advice was that myocardial infarction was the likely cause of death, that it was unlikely that a CT scan and coronary angiography would provide an unambiguous pathological cause of death and might indicate a cause of death which was not in fact the main cause and that the coroner should follow up hospital test results, especially blood cultures. If positive they would provide a diagnosis [9 & 10].
The family had applied for an urgent without notice injunction restraining the performance of an invasive autopsy which was granted by Leggatt J on the evening of 29 September . On 3 October Professor Roberts performed a CT scan and coronary angiography, concluding that the cause of death was congestive cardiac failure and cardiogenic shock due to ischaemic hypertensive and valvular heart disease due to diabetes. One of the facts which led to that conclusion, cited in the comments appearing immediately after the statutory particulars of the cause of death, was that the blood culture and urine culture were negative . He subsequently explained that the culture tests confirmed his view but were not essential to it. He would have reached the conclusion that the cause of death was established at over 90 percent probability without them: with them the probability approached 100 per cent. The coroner accepted that the cause of death was as he described .
In January 2015 Silber J gave the Rotsztein family permission to bring a test case against the coroner, even though the issue was now academic because Mrs Rotsztein had been buried. In granting permission to proceed further, however, Silber J said that it raised questions of principle which were likely to arise in other cases and could be determined on the facts of this case .
In a case in which a coroner decided that traditional invasive autopsy was required, Article 9 ECHR (thought, conscience and religion) might come into play, given that it was a settled tenet of Judaism and Islam that desecration of a corpse was to be avoided. It was common ground that the present case concerned the manifestation of a religious belief and that the performance of the coroner’s functions was “established by law” and undertaken for one or more of the purposes spelt out in Article 9(2) . Proportionality was therefore in issue .
The present challenge was on two grounds:
- that the coroner had adopted the wrong test when she asked herself whether an invasive autopsy was required; and
- that she had failed to take into account the guidance given by the Chief Coroner in his Guidance Note No.1 of September 4, 2013, The Use of Post-Mortem Imaging (Adults) .
Although Guidance Note No.1 was produced following consultation with representatives of the established religious organisations, including Judaism and Islam, it did not purport to give advice on whether or not to use non-invasive procedures . The coroner’s reasoning in arriving at her conclusion that an invasive autopsy was necessary was based on her view that there was a realistic possibility that non-invasive procedures would give an apparent medical cause of death that was not, in fact, the correct cause of death and that there was a real risk that non-invasive procedures would produce the wrong answer. She did not, however, ask herself at any stage whether using non-invasive procedures first would compromise the use of invasive procedures thereafter should they be necessary .
Mitting J said that in cases of religious objection to invasive post-mortem procedures, the following propositions should guide the conduct of coroners in fulfilling their duty under the Coroners and Justice Act 2009 s 1(2)(b):
(a) there had to be an established religious tenet that an invasive autopsy was to be avoided before any question of avoidance on ECHR Article 9 grounds could arise ;
(b) there had to be a realistic possibility – “not a more than 50/50 chance” – that non-invasive procedures would establish the cause of death and would permit the coroner to fulfil the duty under section 5(1) of the 2009 Act ;
(c) the whole post-mortem examination had to be capable of being undertaken without undue delay ;
(d) the performance of non-invasive or minimally-invasive procedures must not impair the effectiveness of an invasive autopsy if one was ultimately required ;
(e) there must be no good reason founded on the coroner’s duty under section 5(1)(b) to ascertain how, when and where the deceased came by his or her death to require an immediate invasive autopsy in any event ; and
(e) non-invasive procedures could only be adopted “without imposing an additional cost burden on the coroner” .
The coroner had failed to ask herself whether or not the short delay required to analyse the cultures and carry out the non-invasive procedures would have rendered any subsequent, invasive autopsy less effective. But because there was no practical purpose to be served in quashing her decision, the court made a declaration to the effect that her decision had been flawed .
With thanks to Robert Cohen of 5 Essex Court and Simon Hunter of 13 Old Square
There are two interesting notes on the background to this case by Veronica Cowan (both written before the hearing) in Criminal Justice & Law Weekly: Grave Matters – Post-mortem scans or full autopsy and Beleaguered Coroner.
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