Inquests – A Brief Guide for Social Care providers.
Inquests are investigations carried out by a Coroner (in rare cases with a jury) to answer four questions: who the deceased was, when they died, where they died and how they came by their death. Inquests are required whenever a coroner has a reason to believe that the death was violent or unnatural, the cause of death is unknown, or the deceased died while in custody or otherwise in state detention (the latter no longer applies in respect of detention under DoLS).
The hearing
The Coroner will start the hearing by explaining the purpose of an inquest as set out above. They will usually say that the coroner’s court is not a court of blame and that they are not permitted to make determinations of civil liability or criminal liability in respect of any named individual.
The Coroner finds answers to the questions by calling evidence. Some of that may be documents read by the coroner into the record without calling the witnesses. In some cases, all of the evidence is read and there are no live witnesses.
If the Coroner calls witnesses, they are first sworn in either by making an oath on a holy book or by affirming – making a promise to tell the truth but not on a religious book. It makes no difference which option the witness takes and in both cases the witness will be told what to say.
As an inquest is part of the Coroner’s investigation rather than a trial, the Coroner will ask questions first. If the witness has made a statement, they will usually be permitted to refresh their memory from it if they need to. After the Coroner asks questions, interested persons or their representatives may ask questions. Interested Persons (often abbreviated to IPs) are people or organisations that have an interest in the case. This can include family members and organisations that may have been involved in caring for the person such as GPs and hospitals. CQC is sometimes made an IP by the Coroner, usually where the Coroner has concerns about the case though CQC tends not to take an active role in the case. The Coroner has a duty to exclude any questions that are not relevant to the inquest.
The Conclusion
At the end of the hearing, the Coroner will answer the four questions and give a conclusion. Conclusions can be ‘short form’ such as natural causes or accidental death, or a narrative explaining what happened. If the Coroner considers that the death was contributed to by a gross failure to provide treatment to a person in a dependent person, the coroner can add that the death was contributed to by neglect.
If anything revealed by the Coroner’s investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the Coroner must report the matter to a person who the coroner believes may have power to take such action. Such reports are often referred to as reports to prevent future deaths (often PFD for short) or regulation 28 reports. They are routinely published on the publicly available judiciary website and sent to interested persons.
When to seek advice.
Applying the criteria above, a wide range of cases require inquests. They can include unpredictable falls where there are no criticisms of the care provided to cases where there have been obvious failures in care, and there is a risk of enforcement by the CQC or other regulatory bodies. Representation is certainly not indicated for every inquest. Where the provider is clearly not at fault, and no one has any concerns with the provider, representation may not be required.
Consideration should be given at the earliest stage as to the risk of the particular case, and that should be kept under review. Each case will turn on its own facts but the following are risk factors that suggest that legal representation should be considered:
- The provider is given Interested Person status by the coroner. That suggests the coroner considers that the death may be due to an act or omission of the provider, or the coroner thinks the provider has sufficient interest in the case to be granted IP status, for example because others are critical of the provider.
- The family have expressed concern about the care.
- The family or other IPs are legally represented.
- Press interest.
- There is an ongoing investigation by the police, HSE, Local Authority and/or CQC.
- The coroner has raised concerns about the provider previously.
- Conflicts of evidence.
- Internal and/or external investigations identify shortfalls in the care provided.
- Jury cases.
Statements
Coroner’s officers will usually ask for statements early on in the investigation. If specific information is required, that should be included in the statement. If statements are sufficiently detailed about the key issues and remedial action, that will reduce the chance that the witnesses will be called to give live evidence, and so reduce the risks and costs to the provider. However, the Coroner has a wide discretion as to calling witnesses. Whilst witnesses are often called despite having made detailed statements, the statements will help them when they give evidence.
Coroners do not have a duty to issue PFDs if they are satisfied that sufficient remedial action has already been taken by the provider. It follows that provides should always consider including remedial action in evidence provided to the coroner. Setting out such evidence can be a comfort to families and reassure regulators that lessons have been learnt. However, in some cases, particularly when there are open regulatory investigations, the risks of including such information must be balanced against the risk of a PFD.
The Coroner may also ask for other documents such as care plans. Deadlines should be met wherever possible. Where deadlines are not achievable, extensions should be sought well in advance of their expiry.
The Coroners and Justice Act 2009 includes offences for altering or distorting evidence, and intentionally supressing, concealing, altering or destroying a relevant document (defined as a document the Coroner would want to see if they were aware of its existence).
Preparing for the hearing.
Witnesses may often be giving evidence for the first time and may not have previously attended an inquest. They will need support to explain the process and reassure them. If they are particularly nervous, applications can be made to the Court for special measures for example permitting them to give evidence behind a screen or remotely. Staff are usually reassured by someone explaining the process, though caring employers will of course wish to ensure that they are offered any support.
Staff should be given copies of their statements. Hearings are often months, and sometimes years, after the death, and staff will usually benefit from reminding themselves of the content of their statements and other key documents such as care plans.
Lawyers can help them prepare and explain the process though must not coach them or rehearse their evidence.
If there is or may be media interest, operators should also consider reputational risk and seek advice about a responsive statement should there be an approach from the press or broadcasters.
Finally, operators should consider any new learning identified by the inquest so that further remedial action can be taken if necessary.
Healthcare Counsel regularly helps health and social care providers in relation to inquests. If you would like to discuss a particular case to help you consider whether representation would be useful, we are always happy to have an informal initial discussion.
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