Inquests – Managing the Risks

This month saw new Coroners’ Rules coming into force. It is therefore a timely moment to review the purpose of inquests and how they can affect providers.

Inquests are required in respect of deaths which are violent or unnatural, when the cause of death is unknown or where the person died in state detention. The last of the categories would include those who died while subject to detention in hospital or whilst subject to a Deprivation of Liberty Authorisation.

The purpose of inquests is to establish who the deceased was; how, when and where the deceased came by his or her death; and the details necessary to register the death.

Article 2 of the European Convention on Human Rights provides a right to life. That includes not only a the negative obligation upon state agents not to kill people but also, in some cases, a positive duty to prevent foreseeable loss of life.

When a death may have been a result of either the negative or positive obligations, Article 2 requires the investigation into the death to be wider than merely determining the immediate cause of death. In such cases, ‘how’ the person died is to be interpreted as ‘in what circumstances’ which allows the Coroner to investigate any matter necessary to establish whether there was indeed a breach of Article 2.

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)

• Accident

• Unlawful death

• Narrative verdict (a short explanation of how the death came about)

• Suicide

• 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 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 his power to send a report to a person who could prevent future deaths.  That could include, for example, regulators and safeguarding.

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.

Where the inquest may attract media interest, providers should consider obtaining PR support from agencies with experience of inquests. In any case where providers are at risk of criticism, careful thought should also be given to obtaining legal representation from a firm that has an in depth understanding of both inquests and health and social care law.

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