Death of a service user? What Providers should consider if called to an Inquest

Many health and social care Providers will have had some form of contact with the Coroner’s court, whether it be simply assisting the Coroner with the provision of documentation related to the death of someone who was using or had used their services or attending an Inquest hearing.

By their very nature inquests are inquisitorial and (in theory) do not seek to apportion blame. The main considerations for the Coroner are to determine who, when, where and how the deceased came to their death. However, Providers would be sensible to consider each inquest on its own facts when deciding whether they should get more involved in proceedings.

The circumstances surrounding a death that has been referred to the Coroner will help determine the level of involvement a Provider may wish to have in the matter. Some key factors that may indicate a Provider should be more involved in an Inquest include:

  • If there has been a complaint by the family about the care provided or the family choose to be legally represented;
  • Whether the police or relevant regulators (e.g. CQC or Ofsted) have been involved;
  • Where there have been concerns raised about the care provided by external bodies such as local authority safeguarding teams or the regulator is pursuing regulatory proceedings;
  • Where staff have been subject to disciplinary action surrounding the care of the deceased.

How can a Provider get involved in an inquest?

Gaining Interested Persons (“IP”) status is the formal way a Provider can involve themselves in an inquest. The Coroner decides who will be given IP status. A Provider may be automatically granted IP status by the Coroner or they can write to the Coroner requesting to be classed as an IP. Usually IP status is likely to be granted to a Provider if the deceased was involved with (i.e. being resident at a home or receiving some form of services from the Provider) around the time of their death.

Categories of IP’s are set out in section 47 of the Coroner’s and Justice Act 2009 and are fairly wide ranging. Some examples of IP’s include family members of the deceased, relevant insurers or beneficiaries, anyone who may have caused or contributed to the persons death or ‘any other person who the senior coroner thinks has a sufficient interest’.

IP status can give Providers more control over the process and the rights of IP’s include the right to be told the date, time and place of an inquest if one is needed, as well as the right to attend the inquest and ask relevant questions of witnesses either in person or by a legally qualified representative. This can assist a Provider in taking steps to minimise possible poor outcomes from the inquest itself. Subject to limited exceptions, IP’s also have a statutory right to disclosure of documents held by the Coroner that are relevant to the inquest.

Seeking legal advice at an early stage in proceedings can help a Provider determine whether they should gain IP status, assess relevant documentation and determine whether Providers should have legal representation at any inquest hearings.

What types of evidence can be requested and considered by the Coroner?

The types of evidence a Coroner can request and consider during an inquest are wide ranging. As the purpose is to establish facts rather than apportion blame, the Coroner is not bound by the strict rules of evidence that apply to other courts and hearsay evidence can be admitted.

Examples of types of evidence could include:

  • Post Mortem reports;
  • Witness statements (these could be from experts, individuals present around the time of the deceased’s death or individuals with control over policies and procedures that could have impacted the deceased);
  • The deceased’s care records and other ancillary documentation;
  • Accident and Incident reports and investigations;
  • Police and/or safeguarding reports;
  • Lessons learned reports or reports demonstrating reflection on behalf of the Provider.

Providers are not under a legal duty to disclose documentary evidence or information that is, or may be, relevant to an inquest, unless expressly requested by the Coroner. However, parties are expected to engage cooperatively in order to assist the Coroner as best they can. It is an offence for a person to fail to provide information requested by the Coroner without reasonable excuse. There are also offences attached to actions that result in the concealing or distorting of evidence that would likely be relevant to a coroner’s investigation. Ridouts can assist Providers with reviewing and assessing documentation to determine what should be sent to the Coroner to assist with their investigations.

What potential conclusions could the Coroner reach?

Inquest conclusions

The Coroner can issue both short-form and/or narrative conclusions at the end of an inquest. Examples of short form conclusions include:

  • Natural causes
  • Accident, misadventure or suicide
  • Lawful or unlawful killing
  • Alcohol or drugs related
  • Industrial disease
  • Road traffic collision
  • Open – meaning there is not enough evidence to decide how someone died

A narrative conclusion can be provided as an alternative to, or in addition to, a short-form conclusion. Narrative conclusions have to be written carefully to ensure they only record matters that are found to be causative, directly or indirectly, of the death. They should be written in neutral, non-judgemental terms. However, narrative conclusions could contain negative wording and/or positive narrative in relation to the care provided by a Provider.

The Coroner can also refer to findings of neglect in their conclusions. While this is not a conclusion in itself, the words ‘contributed to by neglect’ may be added to a short-form or narrative conclusion.

Prevention of Future Deaths Reports (PFDs)

While the main focus of an inquest is on the circumstances surrounding the death of a person, PFD’s are an ancillary matter that can have a profound impact on a Provider. Coroner’s have a duty not just to decide how someone died but also, where appropriate, to report about that death with a view to preventing future deaths. Therefore, where a concern is identified, and has not already been addressed (or has been addressed but the Coroner believes a PFD is needed to increase awareness around the issue), a PFD must be produced. The Coroner has the power to issue a PFD report at any point during the coronial process although they are usually issued at the same time as the Coroner’s conclusions.

A recent review of PFD reports published over the past year for ‘care home health related deaths’ demonstrates that two of the more prevalent causes of death related to those services was in relation to choking deaths and deaths resulting from falls. Issues raised by Coroners in relation to these matters included:

  • Inappropriate use of mobility equipment, lack of appropriate assessments and not following or seeking advice from external professionals;
  • Staff not following information contained in care plans in relation to specialist diets and guidance from SALT teams;
  • Poor record keeping and poor communication between staff;
  • Lack of assessments ensuring care staff are following care plans correctly in practice;
  • Lack of relevant risk assessments and insufficient frequency of review of risk assessments;
  • Lack of understanding of the circumstances where DNAR’s do and do not apply;
  • Lack of staff training;
  • A need for monitoring compliance with instructions on how equipment should be used;
  • Lack of clear recording around incidents and a lack of investigation into incidents including reflections on learning.

The Chief Coroner’s guidance on PFD’s states reports should be intended to improve public health, welfare and safety. They should not be unduly general in their content and they should be clear, brief, focused, meaningful and, wherever possible, designed to have a practical effect.

PFD’s are usually issued after the inquest is concluded. However, this is not always the case and the Coroner has the power to issue a PFD at any point during proceedings. A concern can arise from anything revealed by an investigation (including the inquest). This means a Coroner could issue a PFD before an inquest hearing if they believe there is an urgent need for action to be taken without delay. Regulation 28(3) of the Coroners (Investigations) Regulations 2013 provides a caveat that the Coroner must have considered all the documents, evidence and information that in the opinion of the Coroner is relevant to the investigation before making a PFD. This condition could be considered met before an inquest hearing if the Coroner takes the view that there is unlikely to be more material to come on the matter of concern.

It is important to note that a PFD need not be restricted to matters causative (or potentially causative) of the death in question. Consequently, they can relate to anything revealed by the investigation which gives rise to concerns that circumstances creating a risk of other deaths will occur. Therefore, Providers wishing to avoid the issuance of PFD reports need to be particularly mindful of the information they provide to the Coroner in relation to the investigation at hand. Providers should cooperate fully with requests from the Coroner, ensuring that the information provided is directly relevant to the matter at hand. Lawyers can assist Providers in ensuring the evidence they send is in compliance with the Coroner’s request and is relevant to investigations.

There is a presumption of publication of PFD reports and therefore, subject to representations and exceptions, the Coroner publishes PFD reports on the public judiciary website.

Health and social care Providers have a duty under Regulation 17 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to assess, monitor and improve the quality and safety of the services provided in the carrying on of regulated activities. Therefore, Providers should be well versed in reflecting on lessons learned following any kind of incident (including the death of a service user, particularly in unexpected circumstances) to improve the services provided and help prevent similar future incidents. Such analysis and reflection should take place as a matter of course when a service user has died and can help prevent the issuance of a PFD and the negative publicity they can attract.

Impact of an Inquest on a Provider

Inquests can attract media interest and, depending on the nature of the conclusion and the issuance of PFD reports, a Provider may find themselves in the spotlight. An inquest may prompt the regulator to carry out an inspection of a Provider’s service or other services within a Provider’s group. Inquests could also give rise to civil claims subsequently brought by a family or could lead to investigations such as police investigations or safeguarding inquiries to be re-opened in light of new information. It is therefore vital that Providers fully involve themselves in the inquest process when required.

Facts of a death cannot be changed but presenting your position in a considered and thorough way can demonstrate that you are taking matters seriously and can often provide assurances to the Coroner. Ridouts has experience in supporting Providers throughout the inquest process including handling and preparing evidence and providing advice on inquest procedure, potential risks and strategy. For more information, please contact our specialist team of solicitors on 0207 317 0340 or email info@ridout-law.com.

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