An inquest is held to determine the identity of a deceased person and certain circumstances and facts surrounding their death. Its purpose is not, in theory, to apportion blame. However, this is not to say they can’t have serious commercial and reputational repercussions for providers if not carefully handled.
Inquests do tend to be a bit unpredictable. Coroners have a wide scope of enquiry and broad discretion, and even when an inquest is expected to be pretty routine, things can quickly take a turn for the unexpected. Lines of questioning can come up which might not be anticipated and evidence can come to light very late on. Avoiding adverse outcomes at an inquest is often down to positive engagement in the process, getting early legal advice, and good preparation. A key part of that preparation is taking a proactive approach to evidence.
One of the most serious outcomes for providers can be receiving a “Regulation 28” report. These are issued following an inquest where a coroner finds that there are “matters of concern” which leads them to believe that if a party does (or parties do) not take action that there is a risk that future deaths will occur. Of those that are issued, the content, level of detail and reasoning in them, varies significantly. Also known as “Prevention of Future Death” reports, or “PFDs”, they can have devastating effects on a provider’s business and reputation, and may prompt regulatory action or even criminal proceedings. It is worth remembering that the coroner must issue a PDF if they form the relevant opinion on risk of future deaths; it is not optional. PFDs are also made public and are regularly picked up in local and national press.
On the face of it, PFDs should address present concerns (i.e. if there remains a risk of death now) but in practice, in the instances they are issued, coroners often also include detail casting doubt on past practices, as well as any persisting issues. We routinely see, for example, PFDs published where the coroner’s concerns seem focused on what went wrong in a one off event. This may seem harsh, but in many cases this may simply be because the provider has not been able to satisfy the coroner, in evidence, that there are no persisting matters of concern.
Even if a PFD is not issued, providers will also want to avoid criticism in a “narrative verdict” which is where the coroner decides to give a “long form” cause of death, with explanation, wherever they can. Negative findings can still, for example, give fuel to families seeking claims for compensation and can also prompt regulatory scrutiny and/or serious reputational damage.
After an unexpected death in a service, reputable providers will (to the extent they are not constrained by external investigations) undertake a thorough investigation to identify whether there were any failings. These will normally identify at least some lessons to be learned, and quite often some failing(s), or room for improvement, somewhere. This could be on the part of the service or on a particular member of staff, or could demonstrate that certain systems, processes or policies are not working very well or could be improved, and should be revisited.
Often inquests are heard long after a death has taken place, sometimes many months or even years later. Providers can be forgiven for not wanting to spend a huge amount of time or effort in engaging with the process beyond the necessaries. By the time an inquest comes about, staff may have moved, services may have changed beyond recognition and things may have already been dealt with or resolved long ago. It may not even still be obvious to current staff how learning from past event has fed into current practice.
Of course, accidents do happen and sometimes there is simply nothing a service could have done any differently to prevent a death or it was simply a one off. Evidence of this will be helpful but that alone might not protect a provider from adverse outcomes at an inquest. Providers will normally need good evidence to satisfy the coroner that there are no persisting matters of concern by the end of an inquest. If done successfully, this should in theory prevent a PFD being issued, and reduce the risk of a negative narrative verdict, so approaching an inquest with this in mind from the beginning can make all the difference in respect of the outcome.
However much things have moved on and been sorted out providers will therefore want to ensure that there is enough evidence available before or at the inquest to satisfy the coroner that a PFD is not needed. In other words, present evidence to demonstrate the steps taken, and that there is nothing else further which could be done now or in future to prevent future deaths of the same nature arising again, but keeping in mind what actually went wrong in the first place and anything which has arisen, happened or been learned since. It can be especially important to ensure that there will be evidence available to the coroner to address both the present position (i.e. to show there is no current risk of future deaths unless action is taken) and the past (i.e. how they have learned from the past in ensuring there are no current risk) to achieve this.
In simple terms, good evidence of this nature takes the form of documentary or oral evidence demonstrating the following:
- That the provider acknowledges (where they need to) what went wrong or what happened, and why;
- That the provider demonstrates insight into any errors or actions and understands why things went wrong or ended up as they did, and see any such errors or outcomes as an opportunity for learning;
- That the provider took timely and proportionate steps to respond to whatever happened, and whatever they identified may have gone wrong;
- That the provider has reflected on any errors and outcomes, and has reviewed/analysed their own process/policies/staff training/systems (depending on what happened) in light of those;
- That the provider has used this review/analysis to determine what can be done to reduce the likelihood of it happening again (or mitigate the risks arising from it if it can’t be prevented); and
- That the provider has taken reasonable and proportionate steps to make any suitable improvements/take on board lessons learned/mitigate any lingering risk of repeat.
If this can be achieved, the coroner should normally be satisfied that there are no concerns which need addressing in a PFD, and should not issue one, irrespective of how serious past failings might have been. Good evidence might also help avoid criticism of a provider being included in a narrative verdict, and can even prompt explicit praise of a provider’s care in some cases.
This said, oversharing with the coroner can be problematic in itself. Providers should not withhold relevant evidence or information from the coroner, but there is a fine line between satisfying the coroner there are no concerns, and just throwing evidence at an inquest which could raise even more matters of concern. Self-incrimination remains a risk at inquests so evidence needs to be thought through, and coroner’s questions answered very carefully.
With the right approach and strategy, Ridouts have been able to secure very positive results for clients at inquests recently, even in cases where it has at some point became clear that something did go wrong in the service. Working with providers, we have been able to help them identify how best to engage with the inquest process, to demonstrate to the coroner that there are no ongoing issues, and enable them to avoid a PFD, or criticism in a verdict. In some cases, providers have even received explicit praise for the care provided.
Ridouts can assist providers who need help on handling and preparing evidence for inquests, and on inquest procedure, process, risk and strategy more generally. For more information, please contact our specialist team of solicitors on 0207 317 0340 or request a call back via the website.