Medical Negligence Inquest Solicitors

Coroner’s inquests in the UK play a pivotal role in understanding unexpected deaths, providing closure to families, and ensuring that lessons are learned to prevent future deaths. Navigating the complexities of coronial conclusions, disclosure, and managing family expectations requires a delicate balance of legal expertise, empathy, and open communication.

The inquest is an inquiry to ascertain the facts relating to the death of a person, namely who has died and how, when and where they died, together with information needed by the registrar of deaths, so that the death can be registered. The purpose of the inquest is not to determine culpability, blame, responsibility or liability.

Where a person has been charged with causing someone’s death, the inquest is adjourned until the person’s trial is over.

Coroners preside over inquest proceedings. Most Coroners are lawyers but some are doctors. Coroners are independent judicial officers, and only the High Court can issue instructions to them. No one else can tell them or direct them as to what they should do, and they follow the laws and regulations that apply to them specifically.

England and Wales have 83 coroner areas, each led by a Senior Coroner supported by Assistant Coroners. The Chief Coroner, established under the Coroners and Justice Act 2009, heads the service.

Coroner’s Officers, typically employed by local police or authorities, support Coroners by investigating, communicating with relatives, and following the Coroner’s directives.

The role of the coroner is to investigate sudden deaths that have been reported to them, and to hold inquests where appropriate. It is their duty to find out the medical cause of the death if it is not known, and to enquire about the cause of it if it was due to violence or was otherwise unnatural.

Coroners are tasked under Section 5 of the Coroners and Justice Act 2009 with answering specific statutory questions when investigating a death. These questions are who the deceased was, when and where they died, and how they came about their death. Following the inquest the Coroner will give a conclusion (or verdict).

In unusual circumstances, the family of the deceased may arrange for a post mortem to be carried out, or may ask for a second post-mortem if they felt that the findings of the first were inadequate.

Conclusions (verdicts) can be either short form or narrative conclusions. Short form conclusions relevant to the clinical context can include:

Short Form Conclusions Natural Causes: If the death occurred due to natural causes, the coroner can conclude that the deceased passed away from a medical condition without any external factors contributing significantly. Accidental Death: This conclusion is drawn when the death was unintentional and resulted from unforeseen events or accidents. Suicide: When the evidence indicates that the deceased took their own life, the coroner can conclude suicide. This conclusion requires careful consideration and sensitivity due to its profound impact on the deceased’s family. Unlawful Killing: If the death resulted from a criminal act, the coroner can conclude unlawful killing. This finding can lead to criminal investigations and legal proceedings. Open Conclusion: In cases where the evidence does not clearly support any of the above conclusions, the coroner may deliver an open conclusion, signifying that the circumstances surrounding the death remain unclear.

Additional possible verdicts of an inquest include:

Attempted/self-induced abortion. Accident/misadventure Industrial disease Want of attention at birth Dependence on drugs/non-dependent abuse of drugs

At the end of the hearing all the evidence the coroner will give the jury a summary of the evidence heard and will direct them as to the verdict they should return. The coroner may also give the jury the option of returning a narrative verdict in which the jury’s factual conclusions can be briefly summarised or he/she may invite the jury to answer factual questions.

In some circumstances, and in many cases in which we are instructed to represent families, the coroner may determine that a narrative conclusion is better than a short-form conclusion. A narrative will give the coroner (or jury) the opportunity to state what findings are made and what are not. Or alternatively, an open conclusion can have extra words appended by way of explanation.

Importantly though, coroners are encouraged to keep narrative conclusions short, and are strongly discouraged from including “expressions suggestive of civil liability, in particular ‘neglect’ or ‘carelessness’” (see R (Middleton) v West Somerset Coroner and another [2004]).

Family expectations

Families often have high expectations for inquests, often seeking detailed explanations and thorough investigations, which can often clash with the legal limitations which are placed on coroners by the statutory rules mentioned previously. It is important to be aware that a coroner’s inquest is an inquisitorial process and the scope of the inquest is under the control of the coroner. It is not an adversarial process, and whilst often people who were involved in, or responsible for, the Deceased’s care will give evidence, it is not a trial. The purpose of an inquest is not to establish liability or to impart blame on any given person or organisation.

Coroners and legal representatives must navigate the challenge of managing families’ expectations with empathy, ensuring that they are informed about the progress of the investigation, while respecting legal boundaries. Managing these expectations is an intricate process that requires clear communication and compassion.

The standard required for the coroner to reach a conclusion is the civil standard of proof (i.e. ‘on the balance of probabilites’) as opposed to the more burdensome criminal burden of proof (‘beyond reasonable doubt’).

Interestingly, until very recently if a coroner was to make a finding of suicide or unlawful killing, then they were required to apply the criminal standard of proof. However, this changed following the Supreme Court’s consideration and determination of these issues in the case of R (on the application of Maughan) v. Her Majesty’s Senior Coroner for Oxfordshire [2020] UKSC 46, in which the court held that the civil standard of proof applied to both suicide and unlawful killing. Whilst this arguably creates more certainty and consistency with the requirements for other conclusions, it has not been without its opponents.

On a more practical basis, there are other important considerations which should be borne in mind when preparing for and attending inquests.

There are a number of situations where a death should be reported to the coroner, such as where the deceased was not attended during his last illness by a medical practitioner, where the cause of death is unknown, or a death which appears to have occurred during an operation or before recovery from the effect of an anaesthetic.

Deaths are usually reported to the coroner by the police, by a doctor, or by the local register of deaths. The registrar should not register any deaths that have been reported to the coroner until the coroner finishes his enquiries. This means that there may be a delay before the funeral can take place (please see below).

We are often instructed by families who feel that their loved one has passed away as a result of negligent medical care or negligence whilst they were resident in a care home. Coroners are entitled to return a conclusion with a rider of neglect, however in order to be able to do this, the coroner must be satisfied that the deceased was in a dependent position and that as a matter of law there is evidence of a ‘gross failure’, and that there was a clear connection between the gross failure and the death.

Findings of neglect are often very difficult to achieve at the conclusion of an inquest. It is helpful to consider the court’s definition of ‘neglect’ in the case of R v HM Coroner of North Humberside and Scunthorpe Ex p Jamieson [1995], which perhaps goes some way towards showing the limited scope of this definiteion, and in explaining why such findings are rare in practice:

“Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position – because of youth, age, illness or incarceration – who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect…”

Most inquests are held without a jury. However, the coroner will ask for a jury when it is suspected that the death comes into certain categories, such as deaths occurring in prison or police custody, or if the death resulted from an incident at work.

Where the inquest is held with a jury, it is the jury and not the coroner, which makes the final decision.

It is up to the coroner to decide who to call to give evidence at inquests. The coroner may also control and limit questioning, and may refuse to allow questions aimed at establishing blame. As a result, inquest hearings can be unsatisfactory.

All witnesses that have been called must attend an inquest. Anyone who has a “proper interest” may question a witness at the inquest, or can instruct a lawyer to ask questions. A “properly interested” person includes a parent, spouse or child and anyone acting for the deceased.

Public funding (legal aid) is not generally available to cover representation at the inquest, but the costs of representation may be recoverable if a later civil claim for damages is successful.

All inquests must be held in public and someone from the Press is usually present in court. It is up to the journalist to decide whether they report the case. However, the coroner will make every effort to treat each inquest sympathetically, and will often not read out personal notes or letters unless it is essential.

In some instances the family may want to publicise an inquest, and it is possible to prepare a press statement to submit to various agencies.

Report of the inquest

When the inquest has been completed, any person who has a “proper interest” may have a copy of the notes on payment of a fee.

The funeral may be held before the inquest is over as the coroner will normally allow burial or cremation of the body once the examination of the body is finished. However, delay may arise if someone has been charged in connection with the death, for example for murder or manslaughter.

A police investigation if there are criminal proceedings may delay the inquest.

A death certificate will not normally be granted until the inquest is finished. An interim death certificate will be issued instead.

Once the inquest has been completed, a civil action usually starts to gather momentum. The usual procedure is that the claim is brought through the executors, either the administrators or the executors of the deceased’s estate.

Therefore, claims can be pursued under:

Law Reform (Miscellaneous Provisions) Act 1934

Under this act a claim can be brought for damages for pain, suffering and loss of amenity of the deceased prior to death. Similarly, any loss of earnings during the period prior to death would also be recoverable and funeral expenses if paid for by the estate. It is necessary for a grant of probate to be taken out.

There could also be a claim for nursing expenses, including the cost of hospital visits and gratuitous care provided.

Fatal Accidents Act 1976

This Act gives an independent right of action to relatives “or dependants” of the deceased.

Dependants

In order to claim under this Act people must first of all show that they were in fact dependent or reliant upon the deceased in some way. Dependency is essentially a matter of fact.

In addition, any Claimant must also show that they come within one of the categories of people set out in the Act. Sections 1(3) and (4) provide:-

(3) In this Act “dependant” means –

(a) The wife or husband (includes the former wife or husband) of the deceased
(aa) The civil partner or former civil partner of the deceased.
(b) Any person who was living in the same household before the date of death, and had
been living with the deceased in the same household for two years before that date, and; was living during the whole of hat period as the husband or wife or civil partner of the deceased.

(c) Any person who is a parent or grandparent of the deceased

(d) Any person who was treated by the deceased as his parent

(e) Any person who is a child or grandchild of the deceased,

(f) Any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage

(fa) Any person (not being a child of the deceased) who, in the case of any civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that civil partnership

(g) Any person who is or is the issue of, a brother, sister, uncle or aunt of the deceased.

In addition to the above, the Act also provides for a statutory award for bereavement. This will only be payable to a spouse of the deceased or the parents of the deceased, if the deceased was a child under 18 years of age. The law is still progressing in relation to this. A child cannot claim bereavement damages for the death of their parent under the Fatal Accidents Act.

Another claim that can be made under the 1976 Act is for reasonable funeral expenses. Any dependent who has actually expended funeral expenses can claim them. The Court will award normal, reasonable funeral expenses which would include a headstone and even the cost of embalming but would probably not include an elaborate memorial.

If there is not a viable clinical negligence or personal injury claim but a criminal offence has been committed which has led to the death of a person a claim may be considered through the CICA (Criminal Injuries Compensation Authority).

One of the most significant challenges in coronial inquests revolves around the disclosure of documentation. Despite coroners often setting clear dates for disclosure of material, these dates are often not complied with, particularly when dealing with large hospitals for example. Paragraph 1 of Schedule 5 to the Coroners and Justice Act 2009 gives a coroner the power, by way of a written notice, to compel the production of evidence for the purposes of an investigation however, and is something which can be considered where important disclosure is not forthcoming.

Balancing the need for transparency within the relevant timeframes with the sensitivity of the situation is crucial. Recently, we have noticed that late disclosure has led to significant issues for us and the families we represent. In some instances new information has come to light just days (and in some cases hours) prior to the start of the inquest. This not only leads to problems in preparing for the inquest and advising our clients, but has the potential to prevent them and other interested parties from participating fully and properly in the inquest process. This in turn raises concerns regarding transparency and accountability in such cases.

The timing of disclosure can also impact on the parties at the stage of Pre-Inquest Review hearings. If parties are able to go into these hearings having had full disclosure of all relevant documentation which is available at that stage, then they are then more fully able to prepare for the hearing, and to address the agenda on a more informed basis.

Addressing this issue is critical for ensuring a fair and effective inquest process, as well as upholding the principles of justice and accountability.