In July, a new legal framework for inquests came into force in England and Wales. The overall duty of Coroners remains the same; to investigate unnatural deaths, deaths of which the cause is unknown and deaths in custody or other state control. That investigation must include an inquest in which the following matters are to be determined: the identity of the deceased, where, when and how they came by their death and any other particulars required to register the death. None of that is different to the law as it stood previously. There are, however, some important changes to the law. Whilst the media coverage has widely focussed on the new office of the Chief Coroner there are other details to the new law that have not been so widely covered and are already making an impact on health and social care providers.
There is some good news for providers. The new framework includes a right for interested persons to obtain disclosure of relevant material from the Coroner. Previously, disclosure was a matter of discretion and practice varied between Coroners.
There is also a new statutory duty for Coroners to complete inquests within six months of the date on which the Coroner is made aware of the death, or as soon as is reasonably practicable after that date. In some instances, for example when there are criminal investigations relating to the death, the deadlines will be missed but if an inquest is delayed for more than 12 months the Coroner must report the case the Chief Coroner. There is therefore an expectation that inquests will be completed sooner and Coroners are likely to take an active role in case management to avoid unnecessary delays. That is for the most part a helpful development for providers as well as families because carers and managers will likely be anxious about inquests and the sooner the inquest is concluded, the sooner that anxiety will dissipate.
Some of the new measures, however, raise new risks for providers. For example, there is a new duty for the Coroner to send reports to persons the Coroner considers can eliminate or reduce the risk of circumstances arising that will cause other deaths. The person must respond within 56 days, and the Coroner must then send its report and the response to all interested persons and the Chief Coroner.
Coroners had a similar power under the old Coroners’ Rules. Like all powers the exercise of it was a matter of discretion. The new regulations, however, impose a duty (not just a power) upon the Coroner to send reports when the test set out above is satisfied. That inevitably means that more reports will be sent. The Coroner may send reports to the CQC, safeguarding, commissioners, and other important stakeholders which may poses regulatory and commercial risks. In addition, the Chief Coroner has a power to publish the reports so there is a risk that information about the death will be even more widely available, risking reputational damage.
There is also a new duty upon interested persons to provide relevant information to the Coroner supported by a range of new offences relating to suppressing or concealing evidence.
Some of the measures above increase an already considerable risk to providers arising from inquests. A conclusion of Neglect, for example, means that the Coroner was satisfied that the death was caused by a gross failure to provide care to someone who cannot provide it for themselves. Such a conclusion will shake the confidence of even the most supportive stakeholders. There is also an increasing tendency for Coroners to give narrative verdicts where they give a short explanation of the cause of death, rather than a simple conclusion Natural Causes. Regardless of their conclusions, the Coroner will publicly announce their findings of facts which may be damaging to providers.
It is therefore important that providers obtain appropriate advice where there is a risk of criticism. It is usually (but not always) easy to establish whether there is such a risk by reference to the circumstances of the death and by whether the family, regulators and commissioners have expressed any concerns. If in doubt, it is prudent to speak to your insurers and, in the first instance, have an informal discussion with solicitors who have experience of representing providers at inquests. Regardless of whether you obtain legal representation or go it alone, there are some essential points to bear in mind. It is important to write to the Coroner early to ensure that the providers is treated as an interested person as that triggers certain rights including disclosure and the right to examine witnesses. Inquests take careful preparation including reviewing all the documents, forming a case strategy, drafting witness statements (where appropriate) and liaising with the Coroner’s office. At the inquest is important to ask witnesses questions to obtain helpful evidence and to make representations to the Coroner about the law. All of this will help ensure that the manager and staff feel supported at time when they are likely to feel particularly vulnerable.