Health and social care providers are all too aware of the possibility of a service user dying in their care, but how prepared are you for the inquest that may follow?
What might initially appear to be a routine death can quickly develop into a lengthy and complex inquiry. This can be a difficult and stressful time for providers, especially when the Coroner and their assistants begin to make detailed requests for records and information. This article aims to prepare providers for this scenario and give a little detail on what the proceedings mean and what risks a provider might face.
An inquest is not, in theory, an exercise to establish blame. It is a public, fact finding inquiry to establish who the deceased was, when and where they died and how they came about their death. It is a serious and formal procedure, much like a court hearing (and in some cases with a jury) in which a coroner will reach a verdict; either short-form, or a more lengthy, narrative verdict. In theory, the procedure is predictable as the scope of the inquest is set out in law, and the process is subject to strict rules of procedure.
In delivering the conclusions as to how the person came by their death, Coroners have a range of options including:
- Natural causes (occasionally aggravated by neglect)
- Unlawful death
- Narrative verdict (a short explanation of how the death came about)
- Open verdict (where there is not enough evidence for any of the other findings)
When delivering verdicts, Coroners also give an explanation which often goes into significant detail.
Determinations in the inquest may not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability. The reason for that is that there are other Courts to determine criminal and civil liability.
However, a range of risks arise for care providers from inquests including:
- Possible findings of neglect
- Narrative verdicts that criticise care
- Reputational damage from press coverage
- Concern from commissioners and other stakeholders
- The verdict being referred to in later proceedings
- The inquest process leading to the disclosure of damaging information
- The Coroner exercising their power to send a report to a person who could prevent future deaths.
That could include, for example, regulators and safeguarding.
The most straightforward cases can sometimes take a turn for the worse, where for example, the circumstances of the death either directly or more obliquely demonstrate some involvement of the provider or their staff. The repercussions can be serious for providers when that happens and so providers are encouraged to engage with the process at the earliest opportunity.
There are a range of ways that providers can manage the risks:
- Ask to be treated as an interested person. Interested persons have rights in respect of the inquest such as the right to ask questions of the witnesses and to obtain disclosure of documents.
- Seek disclosure of all relevant documents. There are helpful new rules about this. Having all the documents means that you won’t be surprised at the inquest.
- Determine your position about the death as early as possible.
- Putting forward witnesses or documents that support your case.
- Prepare questions for the witnesses.
Providers should, as a general rule, be cooperative and forthcoming with coroners and the inquest process, but not without regard to the risk of unnecessary self-incrimination. Ideally all evidence is reviewed by a legal representative before submission. If nothing else, providers should be alive to any criticisms which might come to light from records and evidence they and their staff might provide, and be ready to respond to them, and reassure the coroner there is nothing now to be worried about. A provider will want to take all steps which are practically and commercially possible to prevent the coroner making a “prevention of future death report” which is a formal notification that the coroner must make if they believe that a provider (or other party) could take steps to prevent future deaths.
If any potential areas for criticism do come to light in preparing evidence, consideration will need to be given about how it might be best to address those matters, preferably well in advance of the final inquest hearing. Providers might still be able to fix things in good time, and, by focusing resources in the right places and presenting suitable evidence at the right time, reassure the coroner that there is nothing further which could now be done and avoid any significant criticism.
Where the inquest may attract media interest, providers should consider obtaining PR support from agencies with experience of inquests.
Ridouts can help providers to navigate the complexities of inquest proceedings. Our expert solicitors can advise on all aspects of strategy, including obtaining interested person status, evidence and disclosure, and attend inquest proceedings. Our understanding of the challenges which can arise means we can work with providers to determine how best to prepare, and minimise the risk of negative exposure, reputational or commercial damage, or regulatory, disciplinary or civil action which could arise.