Inquests In The Health & Social Care Sector
Key Contact: Jon Lawley
Author: Jenny Wilde
When people enter the world of work in the health and social care sector, very few consider the prospect of the worst-case scenarios that might crop up in their day-to-day experience. Unfortunately, in this sector, it is quite common for vulnerable people to pass away in circumstances which are perhaps unexpected or challenging.
What is an inquest?
As a consequence of such a death, an inquest may be held to establish exactly what happened to a service user. If that death occurred whilst the deceased was in care, then the care service is likely to have a major part to play in any hearing or related investigation.
It is clear that a coroner’s inquest can be a difficult time for providers and their staff members. Relatively few people working in care services have wide experience of appearing in court, in front of a coroner to answer complex questions about a death. It can be a stressful and emotional experience which needs to be managed carefully and sensitively.
Even the most innocuous death can very quickly develop into detailed inquiry, particularly if family members, the commissioner or a regulator are applying pressure to the Coroner for more answers around the circumstances around a death in care. This can lead to court ordered demands for care documentation and other related information. Gathering such evidence requires a great deal of time and consideration. Staff will be under pressure to provide specific and detailed information which may be historical in nature. Providers need to consider the consequences of the documents that they have produced and how this will be interpreted by the Coroner.
It’s vitally important that providers bear in mind the purpose of an inquest. Such hearings are inquisitorial and are a fact-finding exercise to establish the following:
- Who was the deceased?
- When and where did they die?
- How did they come about their death?
It is the role of the coroner to find out enough information during the inquest to confirm the details needed to register the death, the medical cause of death and record a conclusion appropriate to the evidence. Each case will naturally have its own set of circumstances and that will dictate the approach and line of questioning of the coroner.
An inquest is a formal court hearing, sometimes heard with a jury and so can feel very intimidating to those that have little or no experience of the judicial system. Each coroner will have their own style and there is a lot of flexibility in how the inquest is conducted. So, whilst the inquest is a formal legal process, there will be elements that feel less formal than, for example, a criminal court hearing.
Whilst it may not feel like it under cross examination, an inquest is not an exercise in looking for blame. During the inquest a coroner will reach a verdict; either in short-form or as a narrative.
The short form outcomes are:
- natural causes;
- unlawful or unlawful killing;
- industrial disease;
- open verdicts (where there is insufficient evidence for any other verdict).
A narrative verdict is prose produced by the coroner detailing their views and this is where potential criticism of any party that the deceased was involved with before their death could be identified.
If a provider is contacted for information by the coroner, it should be quickly clarified whether the coroner regards the provider or any of its staff as an “interested person”. Interested persons have specific rights in relation to inquests which include the right to receive a copy of any evidence, being able to ask questions of witnesses and, at the end of the hearing, making legal submissions to the coroner before they reach their conclusion.
It may be advisable, depending on the circumstances of a case, for a care provider to proactively request to become an interested party in order to have full sight of the case and understand how they are being considered in the context of the death.
As noted above, providers are likely to receive requests from the coroner for care documentation, witness statements from relevant members of staff (past or present) or any other records relevant to the service user in question.
Preparation of documentation is crucial. Preparing good witness statements and credible supporting evidence which presents a service positively is something that will require careful planning and legal consultation.
Providers need to be careful to provide the specifically requested documentation only and undertake a thorough review of the same before submission. If there are any concerns about the records, legal advice should be sought as a priority and certainly before any information is submitted into formal disclosure.
If any issues arise during the preparation of evidence that an aspect of care has fallen short in some way, a provider will need to consider how best to remedy those matters, well in advance of the final hearing so that these updates can be presented to the coroner and taken into consideration. Such updates can be included in witness statements and supported by evidence. This should go some way to reassuring the coroner that there is nothing further which could now be done and that there is no active risk of a similar death occurring in the future.
Staff that are not familiar with inquests or indeed any type of court proceedings can find the process incredibly stressful and concerning. Whilst the hearing is no way a means of apportioning blame, that is hard for some people to believe, especially where their care delivery is being called into question. Witnesses can be subject to complex cross-examination and may have to answer questions that they had not anticipated. This is undoubtedly a high-pressure situation and not everyone will give a true reflection of the service under such pressure. If staff members are being called as witnesses, it is sensible to consider legal support in order to prepare detailed witness statements and the individuals involved for the experience. Special consideration should be given to staff that may have bad feeling towards a provider after an incident or may seek to shift blame.
Transparency and helping the process
Care providers should give careful consideration of the inquest process before formally responding to the coroner’s request for information. Whilst full co-operation and transparency is always recommended, it is important to assess all evidence before submission so that any potential issues can be considered and prepared for. Legal advice at this stage is crucial and can help to ease the burden and worry for the care provider involved.
If there are issues of concern in relation to a death then it is better to be aware of this point and to consider how the provider will address these at the inquest. A coroner will want to see that any points of concern have been remedied and that the provider has acted pro-actively and prudently in ensuring that the same issue does not arise again in relation to another service user. This mitigation should be taken into consideration in the verdict, especially one that has a narrative.
If the coroner believes that an interested party could take action to prevent future deaths of the same nature, then it may release what is known as a “prevention of future deaths report”. This is a formal notification (which is publicly available) and can be interpreted (particularly by grieving families and the press) as negative. Providers need to be mindful of this as they prepare for an inquest, particularly as some participants in inquest proceedings may be looking for justification to pursue a civil claim against a care provider after a death.
Providers should not be alarmed if they become involved in an inquest. Preparation, transparency and reflection are key and will be appreciated by the coroner and indeed, (it is hoped) any family members involved. Many inquests are straightforward and are no cause for concern, but where circumstances are difficult or there are worries about the way that care was delivered to the service user in question, then consideration should be given to taking robust legal advice in advance of becoming involved in proceedings.
If you need more information on the topics discussed, please reach out to the Corporate Healthcare Team.