The Litigation Series – Week 4 – Medical Negligence Inquests – The Inquest

Pre-Inquest Review Hearings

As we mentioned in the previous blog, the Coroner will normally have at least one Pre-Inquest Review (‘PIR’) hearing before the inquest however in the more complicated and lengthy inquests, there can be more. At the last PIR hearing before the inquest the parties should have the majority of the relevant disclosure that the Coroner has ordered, a provisional, almost final witness list, findings on scope and Article 2 and importantly whether a jury will attend. Bundles are prepared for the hearing that contain all the relevant, admissible disclosure.

Factual witnesses

There are two ways that a witness can give evidence. Firstly, all witnesses will prepare a written statement that should outline: who they are, what their role was at the time and details their account of what happened. If the witness should be questioned as the evidence is disputed, they will attend either in person or remotely to give oral evidence. They will then be questioned by the Coroner and the legal representatives. If the evidence is crucial to the case but is not disputed, it can be read into evidence instead. On these occasions, the statement is read out under Rule 23 of the Coroners (Inquest) Rules 2013 (“the Rules”). An example of an oral witness would be a paramedic who provided direct care to the deceased on the scene, however the other paramedic who merely drove the ambulance to and from the scene may be read instead. The Family of the deceased are allowed to provide a statement and give oral evidence if they wish. On some occasions the Family’s account is paramount to the investigation, for example a Family who provides day to day support to a mental health patient in the community.

Expert witnesses

In some inquests, the assistance of an expert will be required. It is for the Coroner to decide if input from a specialised witness is required, however if the Family or any of the other IP’s believe it is necessary, they can make submissions to the Coroner. The Coroner will instruct the relevant expert and cover the cost. Expert witnesses are different to witnesses of fact as they are permitted to provide their opinion on matters within their field of expertise. An example of use of an expert witness would be in a cardiac related death where there was a missed diagnosis and as a result a person died, the Coroner may instruct a cardiologist or a cardiothoracic surgeon to give evidence on the care that should have been provided and how this would have changed the outcome.

The Inquest

The length of the inquest will depend on how complex it is, listed for and when. The hearing takes place at a Coroner’s Court and prior to the COVID-19 pandemic, all inquests were held in person with witnesses only attending remotely in the most select circumstances. Since the pandemic began, most hearings are held remotely, in particular PIR hearings that can be purely administrative. For inquest hearings themselves, the Courts do take a flexible approach and conduct hybrid hearings, for example the Family and their legal representatives appear in Court in person, with the Coroner, and all other representatives and witnesses attend remotely. This is more restrictive in the cases of a jury inquest where more people will be required in person.

The day to day running of an inquest can be fluid so the Family must be prepared for the order to change. On day 1, the Coroner will make opening remarks and deal with any housekeeping matters and then witness evidence will begin. The evidence will go in chronological order and will normally start with the Family, if they chose to give evidence. The Corner will begin questioning, then each of the legal representatives will be able to question the witnesses and where necessary, jurors can also ask questions. Unlike the criminal courts where questioning is adversarial, questioning in an inquest is investigative, as the Coroner is not trying to establish liability or findings of guilt, it is an investigation into what happened.

Submissions and directions

At the end of all evidence, the legal representatives will normally provide oral submissions: these could cover the law, the evidence presented, what conclusion should be given and where a jury is present, what questions should be left to the jury to decide on. Where a jury is present, the Coroner must direct the jury as to the law and evidence heard and legal representatives will try to agree a list of questions or provide a questionnaire for the jury to ensure findings are kept within scope and are appropriate.

Findings and Conclusions of Inquests

In inquests, there are no ‘guilty’ or ‘not guilty’ verdicts, or liability found against a certain person or body. The Coroner will make findings of fact based on the evidence presented. There are then two types of conclusions that a Coroner, or jury, can come to: short-form and narrative.

The list of short-form conclusions for Coroners and jurors include: accident or misadventure, alcohol or drug related death, industrial disease, lawful or unlawful killing, natural causes, open, road traffic collision, stillbirth or suicide. Neglect is not a formal short-form conclusion but can be incorporated in another conclusion.

The Coroners’ guidance encourages Coroners to make a short-form conclusion but there is discretion to return a narrative conclusion as well. A narrative conclusion should provide a factual account of how the deceased came by their death and is neutral in content, each Coroner will approach this differently but the findings should not go beyond the scope of the inquest and must not appear to determine the question of civil or criminal liability.

The end of an inquest can be anticlimactic for families as there is no civil or criminal liability determined however if evidence during the inquest gives rise for concern regarding a criminal issue, the Coroner can refer the case to the Crown Prosecution Service for investigation.

Prevention of Future Deaths

The last outcome of an inquest could be a Prevention of Future Deaths report, under Regulation 28 of the Coroners (Investigations) Regulations 2013 (“the Regulations”). One of the purposes of an inquest is to learn lessons and make changes so that this type of death does not occur again and this can often be important to the Family. Although the inquest will predominantly deal with the facts surrounding the death, if the Coroner is concerned about something that comes out in evidence that could post a risk of future deaths, the Coroner has a duty to prepare a Regulation 28 report.

The Coroner will write to the relevant body outlining that he/she has a concern and draw their attention to it rather than dictate what they have to do, it not the Coroner’s role to make recommendations. The Regulation 28 report is sent to the Chief Coroner, the Family and all IP’s along with the body it is aimed at. The body has 56 days to respond but is not required to take any action. However, the Regulation 28 reports are public, available online and are a public alert so should be given proper consideration and action by the relevant bodies.

Examples of Inquest conclusions and Prevention of Future Death reports from our team:

• A Coroner has warned NHS England and NHS Digital that more children could die unless they take action following the death of a six-year-old boy. During the course of the inquest the evidence revealed matters giving rise to concern: “In my opinion there is a risk that future deaths will occur unless action is taken”.
• The Coroner to an inquest into the death of a young 38 year old man who died after he was sent away from A&E by medical staff has issued two Prevention of Future Deaths (‘PFD’) reports as well as a narrative conclusion with criticisms of a series of omissions and failures by North East London NHS Foundation Trust and Barts Health NHS Trust, a leading aortic specialist centre.
• An inquest into the death of 20-year old woman has found that multiple failures by the University Hospitals Plymouth NHS Trust following a routine appendicectomy led to her premature death from sepsis and multi-organ failure.
• An inquest into the care received by a woman with a learning disability, severe autism, and limited verbal communication, who was also partially sighted, has concluded with a finding of neglect and highlighted a number of failings.
• At an inquest into the death of a 54-year-old father of one, Peter Docherty, from Southall in West London, the Coroner finds numerous failings in care provided by West London Mental Health Trust.
• HJA recently assisted a grieving family in their battle to obtain answers following the loss of their beloved brother, acting in a successful judicial review of the outcome of the first inquest into his death. Despite strong argument from the family legal representatives, the Coroner ruled that this was not an inquest under Article 2 ECHR and also rejected the family’s submission that the rider of neglect should be left to the jury to consider. The inquest concluded on 23 August 2021, which recorded the short form conclusion of ‘natural causes’. There will now be a second inquest before a difference Coroner.

What happens next?

Although there is no civil liability determined, failings can be found during an inquest and can point towards a finding of civil liability. The evidence relied on in an inquest and therefore to be relied on in a civil claim has been tested in Court and found to be critical, therefore can be helpful with a civil claim.

Our medical negligence team has extensive experience in representing bereaved families in inquests into deaths which have occurred in varied circumstances and across a number of health care settings. For a free initial consultation with one of our medical negligence team please call 0808 271 9413 or request a call back online.