Inquest Procedure: if a provider did nothing wrong, does that mean there is nothing to worry about?
19 June, 2020
In theory, the answer to this question should be that there is nothing to worry about. The inquest process is inquisitorial and its purpose is to establish the facts, not to lay blame. However, in practice, things can and do come out at inquests which can cause serious damage to service providers.
Why should I get involved?
Given the nature of health and social care work, providers are quite likely at some point to be involved in the care of someone who sadly dies and for whom an inquest is then opened. The coroner can require a party to provide it with evidence and to attend and give evidence. It is an offence not to do so. Ultimately, providers might not have a choice but to get involved if the coroner wants them to be.
The important question for providers therefore tends to be what the scope of their involvement should be and whether legal advice or representation is needed. How far providers will want to get involved will depend on a number of factors.
Critically, the inquest procedure is relatively fluid, can be unpredictable and can have serious adverse outcomes for providers. Consequently it is sensible for providers to try and have as much knowledge of and control over the process as possible, in order to protect their position as far as possible. One way to do this is to become an “interested person”, which affords certain procedural rights during inquest proceedings.
Anyone can ask to be an interested person. Whether or not they will be allowed is up to the coroner, but those who might face criticism (along with the family of the deceased) are usually allowed to do so. Providers are therefore likely to be able to become interested persons if they ask to be where an inquest relates to a service user.
What you don’t know, can hurt you
The inquest arena gives ample opportunity for individuals, the coroner, and other individuals or organisations to make negative comments and submissions about other parties’ practices, or give evidence that could imply that criticism is warranted. If a provider is in the dark about what has been said at an inquest, they are less able to mitigate any damage caused by any such criticism, either during or after the proceedings.
At the very least, providers are encouraged to send someone along to an inquest if it is likely to raise questions about the care given by their service. If nothing else, a provider does not want to be taken by surprise. Early knowledge of any likely or actual criticism (either from the coroner or other parties) is desirable. Providers who understand how they are being or might be criticised, both during and after the inquest, are much better equipped to mitigate any potential damage that may cause them or their business. Inquests are public so in theory others may know what is said, even if a provider doesn’t.
Having legal representation at the inquest is generally advisable, although the extent of what representation will be needed will depend on the circumstances. In some cases providers may benefit from their legal advisers making coherent submissions which discourage the coroner from making recommendations if it looks like the proceedings will go that way. In other cases, it can be critical to cross examine other witnesses to take the “sting” out of the evidence they have given. Sometimes, it is worth having representation just to ensure there is someone there to remind the coroner of a provider’s rights or obligations during the proceedings.
Ideally, a provider will want to know what is in any evidence which has been given to the coroner. This may be statements or other documentary evidence. Save for certain limited exceptions, any interested person is entitled to see the evidence put to the coroner by all other interested persons, and is granted certain procedural rights in the inquest process.
A coroner can call witnesses without granting them interested person status if they wish. This is concerning for a witness because other parties are likely to have seen the evidence before the coroner and will therefore be able to some degree pre-empt lines of questioning in advance and in particular pre-empt any criticism which the coroner (or other parties) may seek to raise in the inquest.
A non-interested witness is, in essence, shooting blind and potentially at a huge disadvantage if they have not seen any of the relevant evidence before the coroner. Save for exceptional circumstances, any provider asked to give evidence should ask to become an interested person not least to obtain access to the evidence.
You can’t control what others will say
The coroner will decide who it deems necessary to attend to give evidence as witnesses. The coroner also has wide powers to ask people to provide it with information or evidence, even if they are not to be called as a witness.
Normally, the coroner will lead the questioning of each witness and then each other interested person is given the opportunity to ask questions of the witness. The questioning of witnesses will not necessarily follow the same lines as witness statements (which are usually exchanged in advance) and therefore sometimes people will give evidence at an inquest which is a total surprise to others in the room, or raises new allegations or concerns which a provider would have had no chance to prepare for, even when parties have seen evidence in advance. This can apply to a provider’s own evidence as well as that of others.
There is always the possibility that grieving family members, or other organisations who are on the defensive, or even the provider’s own staff, will seek to say things at an inquest which could severely damage a provider’s reputation, whether or not the coroner has concerns. An inquest is normally a public forum. They can and do attract press attention and criticisms raised at inquests often result in bad publicity.
Additionally, even if there is no direct criticism of a service at the inquest, this does not prevent people from seeking to use information they have learned during the inquest process, as the basis for further legal proceedings. For example, if a family member believes that a provider’s (or one of its staff’s) actions have caused or contributed to death because of evidence given at an inquest, they may seek to bring a claim for damages against the provider.
Nothing the coroner says or does can prevent them from doing this but having interested person status and being represented at the inquest at least enables a provider to have the opportunity to cross examine witnesses. This can be especially important if witnesses give evidence which is critical of – or could warrant criticism of – a provider, as without further questioning or clarification, the coroner may be inclined to simply take their word for it.
Regulation 28 Reports
At the end of an inquest, if the coroner believes that action could be taken to prevent deaths in future, they are obliged to send a “Regulation 28” report to the relevant party/ies who have the ability to take steps to prevent future deaths.
These Regulation 28 reports are frequently sent to providers and include a statement of the coroner’s “areas of concern”. In these reports, a coroner may identify any concerns which it has about a provider, and if addressed to them the provider is required to respond to the coroner within a set time period, explaining what steps they have taken (or if no steps have been taken, then why not). These reports are generally public and often attract press attention and negative publicity and as such, can have a significant impact on a provider’s reputation. Ultimately, a provider will want to avoid being issued with a Regulation 28 report where possible.
The CQC or HSE may also use recommendations or concerns raised in Regulation 28 reports as a basis for regulatory enforcement action. Local Authorities may use recommendations or concerns raised to put pressure on providers to do certain things or to refuse to commission beds. Sometimes Regulation 28 reports are also addressed to regulators or local authorities; then they are required to take action and respond to the concerns raised but they will often pursue providers of their own volition too.
A cursory look at past Regulation 28 reports shows that coroners frequently raise concerns in them which in a non-death scenario, could be deemed relatively low-level, one-off oversights. Providers may therefore be faced with a legal requirement to act on something that in another scenario might be quite a minor concern. Where possible, it is better to convince a coroner that any concerns have already been addressed as this may prevent a Regulation 28 report being sent to a provider at all.
Even if the coroner considers that they must make one, good legal representation can help providers to coherently put forward evidence in mitigation in advance of the coroner reaching their conclusion. This might dissuade the coroner from issuing a report in the first place, or at least persuade them to tone down the “concerns” in any Regulation 28 Report if they remain minded to issue one.
There is no general right of appeal
A coroner’s decision can be challenged exceptionally under general public law principles, but these are limited and there is no automatic right of appeal. Therefore it is critical to try and lead the coroner to the correct decision in the first instance. If a provider is not actively involved in the process, it is unlikely they will have any influence in the outcome.
Other outcomes following the inquest
Providers cannot assume that once an inquest is over, the matter has gone away. If a Regulation 28 report is addressed to them, providers are required to take action within a relatively short period of time, and report back to the coroner. Depending on the identified areas of concern, addressing a Regulation 28 report to the satisfaction of the coroner, could be costly and time consuming for a provider.
Regulatory intervention is also quite likely where there have been concerns identified which relate to matters in the regulator’s remit, or where a Regulation 28 report is also addressed to them.
An inquest can raise other points or issues, or reveal evidence which may encourage families to bring civil proceedings. Being involved at the inquest will not prevent this per se but being able to advocate their position may take the sting out of any evidence or information which may come out at the inquest.
Normally an inquest will be adjourned pending the outcome of any criminal investigation. However, evidence can come to light during an inquest which may impact on, or give rise to a future criminal investigation. The coroner has a power to restrict evidence which may prejudice any future criminal proceedings but that is not to say that such evidence will not be given unless the provider takes the point.
Even where an inquest does not attract major press attention, no-one wants their business to be criticised publicly. Business reputation in the health and care sector can be extremely fragile and this is a highly competitive market. Public criticism can have a significant and devastating impact on commercial relationships and in commissioning relationships. In some cases, it might even scare current service users and their advocates and families resulting in higher vacancies, or cause good staff to move elsewhere.
The upsides of involvement tend to outweigh the downsides
There are, of course, downsides to getting involved.
There are cost implications. Even if providers do not instruct solicitors and barristers to attend for (or with) them, being out of the service will have time and cost implications. It can take time to draft witness statements, review evidence, and understand the proceedings and what the coroner requires of them. Where solicitors and barristers are involved, the costs are likely to escalate significantly.
The coroner’s service is busy and can schedule (and cancel) hearings at relatively short notice. This can be inconvenient for service providers, especially when staff have to take time off work and find a replacement, only to find the inquest cancelled at the last minute or new witnesses called very late in the day.
For many individuals, the prospect of giving evidence at an inquest is very scary. A coroner (and other parties) can ask difficult questions. People may be wary of saying the wrong thing or saying something that might get them into trouble, particularly under pressure. This is a risk of course, but the more involvement a provider has, the more likely they can mitigate that risk.
If an inquest has been called, it will go ahead whether a provider wants it to or not and the coroner has a wide power to choose to involve parties as much or as little as they see fit. Therefore if providers do find themselves involved in an inquest, they are better off protecting their position as far as possible by being actively involved rather than burying their head in the sand and hoping it all goes away.
Contemplated proceedings / other consequences – can be far ranging and very costly
The inquest process itself does not lay blame but there can still be significant negative impact on a provider. A service provider’s ability to defend any such proceedings, or proactively mitigate any potential damage, can be significantly improved by being present – and preferably represented – at the inquest and having access to the evidence which the coroner will see. Knowing what went on can also help a provider to best handle any damage which may arise after the event, whether or not a Regulation 28 report is issued.
In most cases, therefore, it is well worth being actively involved, and obtaining interested person status. Where budgets permit, it is also normally worth having an advocate appear at the inquest.