coroner's inquests
The coroner occupies a unique role in
English law. The office of coroner can be traced back over 800
years. The coroner’s inquest is unique because it is an example of
the inquisitorial system of law in the English system. The
coroner’s duty is to enquire as to the cause of the deceased’s
death and the circumstances in which it occurred.
For the deceased’s family, the inquest is
highly likely to be an entirely unfamiliar and daunting experience.
Bereaved families will be faced with a detailed enquiry into
personal and emotional events for which we believe they need
careful and sensitive advice.
The inquest brings into contact legal
professionals, medical professionals, the judicial office of the
coroner and the family to analyse in detail events in the life of
the deceased leading to their death. The inquisitorial nature of
the proceedings means that, strictly speaking, there are no
parties. There are therefore no ‘sides’ to advance cases and it is
the coroner who leads the inquiry rather than holds a trial.
Clearly, however, the stakes are high for all concerned. It is
therefore important for clients to understand the benefits,
strengths and limitations of the procedure.
The coroner is restricted from providing
a verdict which would attribute either civil liability or criminal
liability of a named person; those being determinations to be
reached in the civil or criminal courts. Nevertheless, the
fact-finding process and observations by the coroner can have a
great effect on individuals or institutions whose actions may
subsequently become the subject of criticism.
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For further information, please contact
Alison McClure in the
Clinical Negligence team on 023 8085 7345 or email alison.mcclure@bllaw.co.uk.
initial advice
Our experience is that families seek
legal advice to understand the inquisitorial process and for
representation at the inquest. In practical terms, we will ask:
- has a
formal complaint to the hospital or other medical professional
already been made?
- are medical
records available?
- has the
coroner released any statements?
- has the
coroner released the post mortem report?
- will the
coroner need notifying that there is legal
representation?
Assuming that the family would like legal
representation, we notify the coroner as soon as possible. We
request disclosure of any available documentation. This is then
reviewed and we look at the scope of the inquiry envisaged.
Generally, this means forming a view on the witness evidence and
medical expert evidence which the coroner proposes to call.
The coroner has discretion as to what
evidence is called. However, representations can be made in writing
or at a pre-inquest hearing. We believe that representations and
good communication should be established early with the coroner and
his officers to avoid the possibility of procedural delays or
adjournments dealing with evidential issues.
Having reviewed the documentation, we
will advise in writing. We will ascertain the likely length of the
inquest and the number of witnesses and experts to be called. This
is important so as to prepare for the inquest but also so that we
can advise on the likely cost of representation.
Many inquests are dealt with in half or
sometimes a whole day. Usually, the coroner will give his verdict
on the same day.
A few weeks before the inquest, we like
to sit down with the family to meet them, discuss their concerns
about the events, go through evidential details, discuss the
procedures, give legal advice and deal with questions. We go
through the documentation. We will then consider and advise as to
the representation required, options available and costs.
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funding
The general position is that legal aid
funding for inquests is only available in ‘exceptional’
circumstances. Our experience is that this applies in only very few
medical cases. If legal aid funding is available, this is most
likely to be when the right to life under Article 2 of the Human
Rights Act legislation is involved. Consequently, for most medical
incidents, families will have to look at either:
- private
funding; or
- legal
expenses insurance
When looking at the costs, it is
necessary to consider the following:
- anticipated
length of hearing
- solicitor
acting as advocate
- barrister
acting as advocate
- instructing
independent medical experts
In many cases where there may be a
clinical negligence claim for compensation after the inquest the
costs of the inquest can be included as part of the costs of
investigating a clinical negligence claim and on that basis we may,
in appropriate cases, be able to act under a conditional fee or ‘no
win no fee basis’.
We are always happy to discuss the likely
costs with clients and consider a range of helpful options. In
general circumstances, particularly where there are young
dependents, we may consider acting on a pro-bono basis.
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hearing
For the family, the hearing is an intense
and emotional experience. They will see the doctors who treated
their relative giving evidence in the witness box and answering
questions about that treatment.
Generally, we meet early before the
hearing. Even if family members are not giving witness evidence, it
can be an extremely stressful occasion. We believe that providing
supportive and helpful guidance can at least help to ease some of
those pressures.
The coroner leads the enquiries and the
questioning. The venue and atmosphere of the inquest is that of the
court room, although as stated earlier, it is not a trial.
Depending upon the issues, the coroner may take evidence from a
pathology expert either first or last and hear the other witnesses,
usually the treating clinicians, accordingly.
After the coroner’s questions, the legal
representatives, or if unrepresented, a spokesperson for the
family, has an opportunity to question and cross-examine the
witnesses. Care must be taken that the questions fall properly
within the scope of the inquiry. Whilst the coroner will allow some
questions relevant to liability to be put to the witnesses where
they touch on the circumstances of the deceased’s death, he may be
forced to disallow questioning which appears directly to invite a
verdict making a ruling on liability.
All the evidence of the hearing is taped.
A transcript can be obtained after the hearing, but there is a
transcript fee payable to the coroner’s office for providing
this.
Generally, the coroner will give his
verdict on the same day. He will ask the legal representatives for
their submissions and representations, usually before adjourning
for a short while to consider and prepare his verdict. This is then
read out by him in open court.
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verdicts
The usual verdicts encountered are death
due to natural causes, accident/misadventure or, infrequently, due
to unlawful killing. Considerable significance is often placed by
family members and representatives on the final short form verdict.
However, it is important to realise that the verdicts are framed in
terms of the cause of death and generally not so as to express a
view on legal culpability.
a) narrative verdict
A coroner may choose to give a narrative
verdict. Although standard descriptions may be used, the only
requirement is that the coroner gives a clear and concise
statement. Whilst these can be phrased neutrally, there is greater
potential for actual or implied criticism of the actions taken in
the circumstances leading to the death of the deceased.
b) neglect verdict
The coroner may find that a death has
occurred because of neglect. Such a finding will have a powerful
effect on any subsequent proceedings. Generally, under case law,
certain criteria must be fulfilled for the coroner to make a
‘neglect verdict’. Classically, cases have concerned a failure to
provide treatment at all to vulnerable persons. In the medical
setting, cases concern clear/gross failures, perhaps a failure to
observe basic medical monitoring procedures. Classically, there has
to be a failure to provide treatment based on the patient’s
condition as it appeared, for example, to the hospital staff. Now
the test is what the staff should have known about the condition.
It must be shown, on the balance of probabilities that:
- but for the
neglect, the deceased would have survived; or
- the neglect
significantly contributed to the deceased’s death
Although the purpose of the inquest is to
examine the circumstances of the death, a verdict of neglect will
mean that the family is in an extremely strong position if they
then decide to bring civil proceedings.
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Human
Rights Act 1998
The Human Rights Act incorporated the
European Convention on Human Rights (ECHR) into English law. The
relevant section is the right to life under Article 2. Earlier it
was described that only in ‘exceptional’ circumstances would
funding by legal aid be available. These are the types of case
which may fall into this category. Examples of these situations
would be when an individual’s life is directly dependent upon the
state’s procedures, such as where lethal force is considered
necessary from a police marksman. Other situations might concern
the supervision of a suicidal prisoner who would, by definition, be
under the care of the state.
Under Article 2, the state is under a
duty not only to protect the right to life, but also to undertake a
proper inquiry where there may have been a breach of that right. In
these circumstances, the scope of the duty under ECHR may outweigh
the usual restrictions on the scope of the coroner’s inquiry. This
is to enable the state to fulfil its investigatory obligation.
Examples of the implications of this approach will be:
- where the coroner makes a verdict of death due to a ‘systems
failure’ by the state’s systems and procedures to protect the right
to life; and
- where there is the need to avoid deaths from occurring in
similar circumstances in the future
This is a complex and developing area of
law. We are able to provide expert advice, drawing upon team
working between clinical negligence and human rights law
specialists.
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summary
We believe that the coroner’s inquest is
a great opportunity in the process of thoroughly investigating the
medical circumstances of a patient’s death. It provides early
disclosure in the form of witness statements from the relevant
medical staff. Those staff are questioned in a public forum and
have to answer the coroner’s questions.
Families are understandably anxious about
this unfamiliar process. Even many experienced criminal and civil
advocates will not have had the opportunity to attend that many
inquests, unless they specialise in medical and/or human rights
law.
We are able to offer experienced clinical
negligence advice and advocacy services for coroner’s inquests. We
can provide early cost effective assessment of cases and
representation and support for families.
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