InsightsInsight - Healthcare - POSTED: February 6 2017
Coroner’s Court Review 2016
Are Coroner’s Courts buried in the past or are the modern reforms having an impact?
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The Chief Coroner HH Judge Thornton QC finished his three year appointment and published his final report. Despite the changes made during his term of office there is still a long way to go.
One of the objectives, of the Chief Coroner’s appointment was to achieve national consistency he comments on “the inevitable measure of inconsistency between Coroners and Coroner’s areas” as despite the reforms it has remained essentially a local service. The Chief Coroner continues to call for a national service with coroners to be appointed and the service better funded and run centrally like other judicial offices. There remains pressure on resources despite the significant progress that has been made in reducing the number of cases not completed (or discontinued) within 12 months and a reduction in the average time of all completed cases from death to inquest from 28 to 20 weeks.
The issue of reporting of deaths by medical practitioners to Coroners and the absence of any clear statutory guidance remains unresolved. The outcome of the consultation on the new Medical Examiner proposals is awaited but it remains to be seen when that section of the Coroner’s and Justice Act 2009 finally reaches the statute book.
Amongst his final wishes was the removal of DoLs cases from the Coroner’s jurisdiction with an amendment to Section 1 of the 2009 Act emphasising that a DoLs person should not come within the category of “death while in custody or otherwise in state detention”.
Kent comes under the spotlight because it consists of four separate areas and KCC with the Chief Coroner’s approval wants all four areas to be combined into one. How and when that might happen depends on the retirement of one or more of the senior coroners before merger of the area. In the past 12 months there has been a welcome influx of young deputy coroners whose clinical dispute experience has been of benefit to families and the hospital trusts involved.
The Coroner would like to see amendment to the 2009 Act to permit discontinuance where the cause of death has already been revealed by post mortem examination or other enquiry. This will permit a Coroner who has commenced the investigation to bring it to an end without having to hold a formal inquest hearing.
The Coroner would like to see some inquests concluded without a hearing (as in Australia and other countries) where there is a written ruling with clear and brief decisions giving reasons based on the circumstances of the death with findings of fact and a conclusion. Any ruling would be handed down in published court and provided to the family for them to keep.
The Chief Coroner has recommended that there should be a change in the law to give the High Court greater flexibility when it quashes an inquest whenever it is necessary or desirable in the interests of justice. In some cases it is only necessary to amend the record of an inquest rather than ordering a fresh enquiry.
Funding of Family Representation
The issue of representation for families remains high on the agenda and the Chief Coroner has recommended that the Lord Chancellor gives further consideration to amending his exceptional funding guidance for inquests, particularly where the State has agreed to provide separate representation for one or more Interested Persons.
Cases of Interest
1. Serious Incident Reports:
R v (on application SOS for Transport) v HM Senior Coroner for Norfolk 2016 decided that there is no public interest in duplicating investigations or enquiries. The facts of the case related to deaths of four men in a helicopter accident and the air accident investigation branch (AAIB) were issued with notices by the Coroner requiring disclosure of evidence which was refused and fines were imposed for non-compliance. The Court found that the effect of EU Regulation meant that the Coroner had no power to order disclosure and in doing so the Lord Chief Justice set out the approach that should have been taken, namely not to investigate at all, adjourn the inquest pending publication of the independent report or to treat the conclusion of the report as evidence as to cause of the accident.
The Lord Chief Justice remarks reflect the number of cases where there is a duplication of process in investigating death and in particular the Serious (untoward) Incident Reports commissioned by NHS hospitals or Trusts. The difference here is that these reports are unlikely to be “independent” or from “an organisation with greater expertise” so that SI reports do not have special determinative status in regard to the cause of the incident or accident as that must be decided by the evidence at the hearing.
In practice, many coroners acknowledge the importance of an SI Report because it contains the NHS Trust’s own interpretation of events, lessons to learn and lists the action points which have or will be undertaken which are relevant to the Coroner’s separate consideration under Regulation 28 of Preventing Future Deaths.
2. Recording non causative medical failures and Article 2:
R (Tainton) v HM Senior Coroner for Preston and West Lancashire 2016 highlighted the issues which can arise on deciding what a coroner has to put to the jury. The deceased was a prisoner who died of oesophageal cancer whilst in custody. At the inquest the NHS Trust responsible for his medical care had admitted to shortcomings. The coroner decided to withdraw from the jury the issue of whether those failings had hastened the deceased’s death as there were too many unknowns to enable the jury to reach any safe conclusion on causation and he simply left them the short form conclusion of “natural causes”. At the appeal hearing the issue of Article 2 procedural obligations was relevant because the deceased died in custody and also the circumstances had included an incidence of substandard medical care. The High Court found the test to be applied was whether an event or conduct had contributed more than minimally, negligibly or trivially the Coroner was bound to leave to the jury the two questions to satisfy:
- Whether there was evidence on which a jury properly directed could conclude that the medical care had hastened deaths and;
- Whether it will be safe for the jury to reach that conclusion on the evidence.
The Court upheld the Coroner’s decision of natural causes but found he had been incorrect to say that he had no discretion to leave to the jury the cause of death which was a near possibility short of meeting the civil standard of proof. He should have directed the jury to include in the record of inquest a brief narrative of the admitted medical shortcomings and an explanation that these shortcomings had not significantly shortened the deceased’s life.
As a parting gesture the Chief Coroner has published Guidance Number 25 which upholds the important principle of “published justice and fair and accurate reporting of proceedings” unless certain exceptions apply. All hearings including publishedings, PIR hearings and final inquest hearings must be held in public and are therefore published to journalists.
Rule 11 sets out the exceptions where exclusion can be ordered in the interests of national security; any applications for anonymity of witnesses or screening of witnesses will be held in public. The Guidance serves as a reminder that under Regulation 27 (2) the Coroner may provide any document or copy of a document (including a recording) to a proper person. Members of the media would normally be expected to be considered “proper persons”. The Guidance does however make reference to the media codes of conduct warning against intimidation, harassment and persistent pursuit including “door stepping”.
New Chief Coroner
Since 1 October 2016 we have a new Chief Coroner who will start with the benefit of the Chief Coroner’s development plan 2015/16. Judge Mark Lucraft QC has been appointed for a 3 year term.
Timely Reminder – MOU/CQC
Remember too the provisions of the Memorandum of Understanding between the Coroners’ Society and the Care Quality Commission whose objective is to allow Coroners and CQC to discharge their different and independent statutory functions and their limited resources to the best effect. This includes some important provisions on disclosure and in particular Regulation 28 Reports are provided by Coroners to the CQC wherever there is any concern about care or treatment identified during or at the conclusion of the inquest.
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