Coroner’s Court: Minimising the risk of a Regulation 28 Report during the pandemic
In this article, we explore how the risks of a Regulation 28 Report can be minimised during the pandemic
Coroners have duties when conducting an investigation into a person’s death under Part 7 of Schedule 5 of the Coroners and Justice Act 2009, which is applied under Regulation 28 of the Coroners (Investigations) Regulations 2013. A Coroner must issue a report where anything revealed by the investigation gives rise to the Coroner being of the opinion that there are:
- concerns that circumstances creating a risk of other deaths will occur, or will continue to exist in the future; and
- action should be taken to prevent the occurrence or continuation of such circumstances, or eliminate or reduce the risk of death created by such circumstances.
A Coroner must send a Prevention of Future Deaths Report (“PFDR”) to whoever the Coroner believes has the power to take such action. The recipient then has 56 days to respond by outlining what action they have taken/will be taking or explaining why no action needs to be taken.
A copy of the PFDR must also be sent to the Chief Coroner and every Interested Person (‘IP’) who, in the Coroner’s opinion, should receive it, for example, the family.
On receipt of the PFDR, the Chief Coroner may publish a copy or a summary of it and also send a copy to any person they believe may find it useful or of interest, for example, the Care Quality Commission.
A PFDR may not be made until the Coroner has considered all the documents, evidence and information that, in the opinion of the Coroner, are relevant to the investigation.
Practical tips to minimise the risk of receiving a PFDR
- Ensure that cases with potential lapses in care, even if not directly causative of the death, are incident reported. An incident report can take place at any time, even if this is after a secondary review of the case and long after the death.
- If there has been no incident report or internal investigation, this may need to be explained to the Coroner and, if it is their view that a report/investigation should have been undertaken and wasn’t, this can lead to a PFDR in itself.
- Ensure that Root Cause Analysis (“RCA”) or Serious Untoward Investigation (“SUI”) reports candidly identify any areas which require improvement or any learning opportunities.
- Ensure that the areas which require improvement have a robust action plan in place which shows how these aspects are going to be improved upon and the relevant timeframe in which these improvements are going to be implemented.
- Even if there has been a delay in the proposed timetable due to the pressures imposed by COVID-19, a revised timetable setting out proposed actions moving forward should be set out.
- Actions or meetings that could not take place during the pandemic should be evidenced as scheduled to take place in the upcoming weeks or months.
- The RCA/SUI author or other appropriate witness should be fully appraised of the up to date position of matters in the action plan and be able to confidently give assurances at the Inquest of the steps taken or that are going to be taken to remedy the areas identified.
- If new training or systems are to be implemented, any up to date audits of these methods of work should be evidenced.
- Any spot checks of new systems and their results should be set out, or an indication that this is going to take place if that is the case.
- If no audit has taken place, an indication of when it will take place along with what will be done if audit results are not up to standard should be set out.
- In terms of training on existing or updated procedures, it may not be enough to say that procedures have been disseminated to staff — how they have been disseminated and how knowledge on these procedures is going to be tested and subsequently refreshed may be an important factor to prepare for the Coroner.
- If a death has raised specific concerns and COVID-19 has meant that specific learning or reflective practice by an individual professional could not take place, this should now take place or a plan of when it is going to take place should be set out within any action plan.
- Any issues that arise during the course of an investigation or in discussion with legal representatives that are outside the scope of what an organisation can remedy should be set out, so that if a PFDR is considered, it can be issued to the appropriate organisation or individual, for example, the Department of Health, the Royal College of Surgeons.
- If an issue has previously been identified and evidence given in relation to at an Inquest, the same evidence should not be put before the court again. It should be shown that proactive steps have been taken to acknowledge why the same issue has arisen and establish what can be done to prevent it if previous attempts have been unsuccessful.
If a PFDR is issued
A PFDR will need to be responded to, in writing, within 56 days of the date of the letter. It should be noted that a PFDR is not punitive in nature and does not give rise to any civil or criminal obligations.
The understanding of a former Senior Coroner in an often referred to practitioner text is that PFDRs need to be issued even in circumstances where corrective action has been taken. If other Coroners are also of this understanding, although evidence can be put before the Court to mitigate the position of a Trust, the issuing of a PFDR cannot be prevented. If it is felt that a PFDR is justified, the actions which have been carried out and/or are going to be carried out to protect future lives in respect of the concern raised should be set out in the body of the response. If applicable, an appropriately evidenced view that no action is required to allay the Coroner’s concerns should be set out.
It is unlikely that judicial review could ever be an appropriate route of challenge to a PFDR if there is some evidence to support the Coroner’s concerns. If it is felt that a PFDR has been unfairly issued, in responding to the report, the recipient can disagree with any matters within the report or rebut any determination expressed by the Coroner. This response to the PFDR will be published.