Asked to give evidence at an inquest? 2-minute read on managing the risks

Inquests in a nutshell

An inquest is a fact-finding investigation into a death when the coroner has reason to suspect:

  1. the death was violent or unnatural;
  2. the cause of death is unknown; and/or
  3. the death was in state custody (this no longer includes DoLS but includes detention in hospital or prison).

The coroner is usually required to determine how the person came by their death.  However, in cases where the state arguably breached its obligation to protect the life of the deceased, the coroner is required to determine the wider circumstances (these are called Article 2 cases).   In practice, though, the coroner has a wide discretion as to the scope of an inquest in all cases.

Almost all cases are heard by a coroner sitting alone though some cases – such as those involving unnatural deaths in custody, deaths involving police contact or cases that are required to be reported to the HSE – are heard with a jury.

In all cases, where a coroner considers that preventative action should be taken to avoid future deaths in similar circumstances, the coroner must report to people s/he believes can take that action.  The reports are known as ‘regulation 28 reports’ or ‘prevent future death’ or ‘PFD’ reports.

 

Advice on draft statements

It is sensible to seek advice before sending any statements to a coroner.  Experienced advisors will anticipate the key issues and check the statements address them.   They will also routinely contact coroner’s officers to seek a steer from the coroner.

Generally, coroners will not issue regulation 28 reports 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.  However, in some cases, particularly when there are open regulatory investigations, care must be taken not to make damaging admissions.

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.

 

When to seek representation for the hearing

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 is unlikely to be required.  Each case will turn on its own facts but the following are risk factors that suggest that legal representation should be considered:

  1. The provider is given ‘interested person’ (or ‘IP’) 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.
  2. The family have expressed concern about the care.
  3. The family or other IPs are legally represented.
  4. Press interest.
  5. There is an outstanding investigation by the HSE, Local Authority and/or CQC.
  6. The coroner has raised concerns about the provider previously.
  7. Conflicts of evidence.
  8. Internal and/or external investigations found shortfalls in the care provided.
  9. Jury cases.

If in doubt, please contact me for an informal discussion.

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

For more information on inquests, see our inquests page here.

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