Ridouts solicitor, Maddi Gaunt, considers how providers should approach the inquest process, the potential difficulties that may arise and how to overcome them.
Inquests: Be Prepared for the Unexpected
A coroner’s inquest can be a difficult and stressful time for providers. What might initially seem a routine death can quickly spiral into a lengthy and complex inquiry, and a world of onerous requests for records and information, placing huge demands on staff resources. The most straightforward cases can quickly take a turn for the worse, and the repercussions can be serious for providers when that happens.
An inquest is not, in theory, an exercise in looking for 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.
Having said that, inquests are inquisitorial – so by their very nature they will involve a lot of questions. The coroner will need to find out enough in the inquest to confirm the details needed to register the death, the medical cause of death and record a conclusion appropriate to the evidence. Sometimes that will not be straightforward and it might mean a lot of difficult or unexpected questions being asked. It is hard to predict exactly what questions the coroner will need, or want to ask in any given inquest and they are given a lot of discretion as to how they conduct the proceedings.
Providers will often receive requests for information, documents or records from a coroner, or for statements from key members of staff (or ex staff members). This can be quite early on in the process or at very short notice before an inquest hearing. These might seem quite routine, say in the case of care records leading up to a death and in theory, if providers keep good records, and look after service users safely and have proper systems and processes in place to assess and mitigate risk, there should be nothing to worry about.
But even good care records are rarely perfect. Once a coroner starts an inquiry, holes may start to appear and the coroner may start digging deeper. Witness evidence can also be difficult to navigate. Coroners might ask for written statements without much guidance on content and/or ask staff to attend the inquest to give evidence in person. Providers will want their witness evidence to paint a service in the best possible light and may need to put forward written information to explain facts, or to fill in any apparent gaps in records. Most providers, rightly, want to cooperate with the inquest process and will often seek to put forward a lot of evidence which they think will be relevant (sometimes which goes beyond what the coroner needs or asks for).
However, this can bring its own risks so seeking legal advice before any evidence is submitted is highly recommended. Further, giving evidence at an inquest in person can be a stressful and time-consuming process for staff; some witnesses will perform better than others, and they may require additional support. Former or disgruntled employees, or other healthcare providers might be inclined to give evidence which paints a provider in a bad light, which a provider’s witnesses may need to be ready to answer. Quality legal advice in inquest preparations can help providers to pre-empt those situations, and be in the best place possible to defend the position if they need to.
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. 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.
Preparation is key. How providers can best prepare involves a number of key strategy questions which will depend entirely on the circumstances and early legal advice is usually recommended. It might be necessary, for example, to apply to become an Interested Person to get access to important documentation. Preparing good witness statements and credible supporting evidence which presents a service in the best light and with the least risk of self-incrimination, can be a significant task. It might also be sensible to instruct a barrister to question witnesses, especially if there are other parties involved who might be inclined to want to blame a provider.
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.
Of course, many inquests proceed without any complication and conclude with no criticism of the care provided. However, even though the coroner is not looking to apportion blame there are often others involved who might be. Whether this is grieving families, or other care providers looking to take the heat off their own shortfalls, providers can expect that there may be other parties looking for a scapegoat. Others’ evidence can take a turn for the unexpected, quickly, and if providers do not prepare for the unexpected, they may be in a weak position to defend themselves if things do not go to plan.
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.
For more information, please contact Ridouts Professional Services Ltd on 0207 317 0340.