Our team can provide expert legal advice to health and social care providers throughout investigations, inquests and public inquiries.
When an incident occurs in a care setting, it can give rise to lengthy and wide-ranging enquiries from a number of sources. In addition to the Coroner and the family, the Care Quality Commission, Health and Safety Executive, the local authority and the police may also be conducting investigations. Insurers will also wish to know about any circumstances that may give rise to civil liability.
With over 45 years’ experience of providing legal advice in the health and social care sector, Anthony Collins Solicitors has an in-depth understanding of the needs of health and social care providers. We are familiar with the processes of such organisations and how they work, from the excellent care provided by individual health and social care workers and managers, through to the responsibilities of the board of directors and how the internal systems work.
This understanding, coupled with our team’s varied and extensive experience, allows us to provide clear, comprehensive and practical advice to providers during the investigations and inquests that may follow a serious incident. Our team can:
- assist providers as they complete internal investigations and review internal investigation reports.
- represent providers during investigations by the police and any relevant regulators (including the Care Quality Commission and Health and Safety Executive). We have also assisted providers where local authorities have launched investigations into the provider’s conduct or activities. Understanding how distressing such investigations can be, our team will ensure providers and their staff understand the process and will assist and support providers as they handle enquiries and requests from all relevant stakeholders.
- support and advise providers through the inquest process. Our assistance will include co-ordinating with the Coroner on behalf of providers, drafting witness statements, meeting with staff to provide an overview of the process and advising on issues surrounding reports for the prevention of future deaths. Where appropriate, our team can also provide advocacy during the inquest hearing.
Where a significant event causes public concern, a public inquiry can be established. The purpose of the inquiry will normally be to establish what happened and to identify the lessons to be learned. Members of our team have advised and represented core participants in some of the most complex and high-profile public inquiries. With this experience and our sector knowledge, we are able to provide expert legal support to providers and/or sector bodies who are involved in or affected by a public inquiry.
Most insurers recognise our expertise and will work with us, at your request, ahead of their normal panel firm, who won’t necessarily be a sector specialist.
Taking legal advice as soon as possible, in relation to a death that was unexpected, can make a significant difference to the outcome of further enquiries. To find out more about how we can support you during the inquest process, please contact Tim Coolican. You may also find our Inquests FAQ download and inquests process diagram helpful.
What is an inquest?
An inquest is a fact-finding enquiry that will allow the Coroner to ascertain the answer to four questions: who has died, where did they die, when did they die and how did they die.
The inquest should not stray beyond this purpose, save for asking questions surrounding remaining concerns that, if unresolved, could give rise to future deaths.
Since the Human Rights Act 1998 came into force, the question of ‘how’ can include ‘by what means and in what circumstances’. In reality, the coroner can ask whatever questions they deem fit in order to ensure that: the full facts are brought to light; culpable and discreditable conduct is exposed and brought to the public notice; suspicion of deliberate wrongdoing (if unjustified) is allayed; dangerous practices are rectified; and those that have lost their relative may, at least, have the satisfaction of knowing that lessons learned from their death may save the lives of others.
[Amin v Secretary of State]
Much will also depend upon the circumstances that prevailed prior to the death. If, for example, the deceased was being looked after by the state (i.e. someone lacking mental capacity), then the hearing will usually be heard before a jury, and will be wider in scope to comply with Article 2 of the Human Rights Act. This means that a care provider will be under scrutiny if someone dies whilst in its control, and it appears that the death was avoidable. There are a range of likely circumstances: a fall, choking, a question of whether the right medication was given, etc.
What happens at an inquest?
The inquest process can vary from case to case, however take a look at our inquest process diagram.
Do I have to go to the inquest?
Sometimes a witness’ evidence can be agreed and it will not be necessary for that person to attend. However, key witnesses will be called to give oral evidence. The family’s wishes will be persuasive if they wish to push for the attendance of individuals. The coroner often issues a summons to ensure the attendance of a witness.
Am I in trouble?
As mentioned above, the inquest is not a trial. There are no parties, no indictment and no defence or prosecution, but interested persons will often be legally represented. Sometimes a regulatory body such as the General Medical Council or Nursing and Midwifery Council will provide representation for its members.
The Coroners and Justice Act 2009 specifically prevents the determination of any civil or criminal liability, and a witness may be protected from giving self-incriminating evidence.
Criminal proceedings can arise out of the circumstances explored by the coroner. If the coroner believes that a crime has been committed, then he/she should stop the proceedings to allow the Crown Prosecution Service to consider the issues and whether there is sufficient evidence for a prosecution.
How do I prepare for an inquest?
If you are asked to attend an inquest, it is vital that you are well prepared. It is likely that you will have made a statement and you should read this before the hearing and take a copy with you, as you will be questioned on this.
Care plans, medical records and other relevant documentation will have been disclosed to the coroner (e.g. medical administration records). If these have a direct bearing on your evidence, consider them before you attend the hearing. You will need to be familiar with your organisation’s policies and record-keeping systems too. If you are not familiar, you will be asked why, if your training deficient and if the proper risk assessments have been undertaken. The more senior you are, the more technical questioning is likely to get.
What do I wear to an inquest?
Wear something smart, as if you are attending an interview. You would not expect someone to attend a hearing about your loved one in casual clothing.
What could the conclusions of an inquest be?
The coroner is expected to consider whether a short-form conclusion, would be appropriate. These include: natural causes; alcohol or drug related; road traffic collision; lawful/unlawful killing; suicide; or accident.
The burden of proof is generally on a balance of probabilities, but, sometimes, for unlawful killing, the criminal standard is applied.
If the coroner does not consider that a short-form conclusion will satisfactorily reflect the circumstances of death, then he/she will give a narrative conclusion. This is often the case where the death arises from more than one cause. The coroner cannot use words that suggest civil liability such as negligence, breach of duty or carelessness. However, he or she can use words such as inadequate, inappropriate, insufficient or failure.
Neglect is not a conclusion and is not the same as negligence. For the purposes of the inquest, the coroner will consider whether there is evidence of a gross failure to provide basic care to a person in a dependent position. Therefore, the case of an elderly person in a domiciliary care setting who was malnourished because care workers did not give basic care, could result in a finding of neglect in addition to a short-form conclusion. This may have implications in respect of potential criminal liabilities in respect of neglect
Reports for the prevention of future deaths
A crucial function of the coroner is the statutory duty to report on matters that give rise to concerns that, if not resolved, could lead to future deaths. The coroner will expect attendance from senior management to give evidence about lessons learned. Sometimes, this evidence is given after the evidence relating to the four questions. This is because it can be perceived to be prejudicial.
How should I address the coroner?
Sir or Madam.
What is the background to the inquest process?
Until the Coroners and Justice Act 2009 came into force in April 2010, inquests were considered to be something of a lottery and were very much dependent upon the approach of the individual coroner. This meant that the inquest process could be confusing, and there was a lack of clarity regarding the likely outcome. Since the statutory creation of the role of chief coroner, there has been a push for uniformity in approach and conclusions (formerly verdicts). The system has become more streamlined in order to resolve the increasing backlog of hearings, and there is now guidance issued by the chief coroner to assist practioners. Despite this, inquests have become more complex and, as a result, there has been an increase in families and organisations involved in a death seeking legal advice and representation.