Helping the inquest run smoothly: 10 pointers
March 31, 2022
During an inquest into the tragic death of a child, one of the medical providers was not represented, much to their disadvantage; their witnesses were questioned with little restraint and there was an opportunity for other PIPs to push the spotlight firmly onto that unrepresented institution. When asked “does your client need a lawyer?” this is something that should be considered carefully.
Within the Lord Chancellor’s Exceptional Funding guidance it is confirmed that “funding for representation at an inquest is not generally available because an inquest is an inquisitorial process, rather than an adversarial one…There are no defendants, only interested persons, and witnesses are not expected to present legal arguments.” Funding is available on two grounds, the first is that it is required by Article 2 ECHR, the second is where the Director makes a “wider public interest determination” in relation to the individual and the inquest.” Consider whether it would assist the coronial process for the family to be represented and whether this should be raised with the Coroner.
Having to halt proceedings part way through because one of your witnesses has said something that undermines the position of your client, is not only disappointing, but will attract the ire of the Coroner and inflame the family’s suspicion that something did go wrong. Consider whether it is in the best interests of any of your witnesses to have separate representation, in many cases it will be to their benefit.
Schedule 5 of the Coroners and Justice Act 2005 allows the Senior Coroner to require written statements and production of documents relevant to the investigation (except those documents that would not be required to be disclosed in civil proceedings because of their privileged nature). Consider carefully what documentation is available and what information should be included within witness statements; what is the scope of the inquest and what do your witnesses need to address? Failure to disclose documentation can result in a criminal sanction.
Many medical institutions carry out an investigation after death, known variously as an RCA “Root Cause Analysis” or SIR “Serious Incident Review”. Consider that report in detail, who has written it, are they the right person to have written it? What literature is relied upon? Is it valid? Has a copy been disclosed? Who has been spoken to and when, have all relevant matters been considered and thereafter addressed? What if any acts or omissions are identified, what should be done to avoid them happening again? Who has taken ownership of implementing those changes and if they are not identified, should they be? Does your evidence allay any concerns that the Coroner may have?
Witnesses while not on trial are required to assist the Court. Draft a statement but avoid medical jargon. Witnesses should review relevant documents prior to the hearing so that they can comfortably navigate them when asked questions. Do they need props to help them explain their evidence? A well prepared witness will feel far more comfortable under scrutiny than someone providing muddled answers while scrabbling around with documents. Finally, do not underestimate the stress and upset felt by those individuals whose care and skill is placed under the microscope.
In an inquest arising from the death of a young lady, the expert to the inquest criticised the health board. It was our view that the expert’s conclusions were not safe, he had applied a ‘gold standard’ and had not considered all the evidence. While not litigation, an inquest does offer the opportunity to explore the evidence and it was during our questioning that the expert agreed there was an element of hindsight bias to his conclusions and that having heard the evidence, his criticisms did not stand. The lesson? Do you need your own expert to help you understand what is being said? Having heard the oral evidence during the inquest are the conclusions of the expert safe? Remember, the Coroner is not bound to accept the evidence of their own expert.
Would it be advantageous to work with the other institutions involved in the inquest? What about the family, what are their main concerns and can your witnesses help answer those concerns? Communication is key and again will reduce suspicion and distrust. Working collaboratively to investigate, identify learning points, disseminate those learning points and evolve will not only assist your client but will impress the Coroner and help the family come to terms with their loss. This is far more attractive than institutions pointing the finger at one another and trying to assign blame and responsibility elsewhere.
9. Prevention of Future death report (PFD)
There is a duty on the Coroner to report where there are concerns that a future death may occur. The Coroner will not make specific recommendations. In advance of the inquest consider whether there has been learning and what acts or omissions will be avoided in the future. Can you produce documentation for the Coroner to confirm that those steps have been taken? In one case the Coroner had raised questions about processes in the A & E department, she was reassured when our trauma nurse attended court with one of the laminated posters that (following the death) had been erected around the hospital and addressed specifically that point.
While we are instructed to attend proceedings to represent the interests of our client, saying ‘I am [sorry / my condolences] for your loss’ is not an admission of liability or responsibility. It is a recognition that someone has died.
Sara Sutherland is an experienced junior who is instructed in multi track personal injury and clinical negligence cases. She is also an Assistant Coroner, regularly instructed to act on behalf of families, medical professionals and health care providers, employers, insurers and care homes. Sara is able to provide advice about any aspect leading up to and including the inquest.