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Coroners versus Covid-19

How to deal with coroners’ outstanding requests for statements/to attend court

Preparing for the worst of Covid-19 is placing unprecedented demands on the NHS. At the same time, some coronial jurisdictions are continuing to satisfy their statutory function as normal – that is no criticism of them; the Chief Coroner is yet to follow the Lord Chief Justice’s approach by setting out less imposing ways in which coroners should operate. This is a real shame as coroners inevitably require the assistance of those in the NHS to support their investigations and inquests; a tricky conflict to manage, but here’s a suggestion as to what the NHS can do.

NHS trusts should have a reasonable working relationship with their local senior coroner, and that relationship will be more important than ever before. The author suggests this is a time of understanding and collaboration from Coroners; not of business-as-usual and threats of the use of statutory powers if statements are delayed or witnesses unable to attend at court.

For those trusts in coronial areas where the coroner is carrying on as before, we are advising those trusts to write to their senior coroner in sympathetic but robust terms setting out the latest guidance from NHSE and NHSI to NHS trusts to “maximise staff availability”. The operational demands on clinicians are like never seen before. This inevitably means it will not be possible to comply with other operational demands, such as providing statements or attending court. Whilst those demands are important, they cannot reasonably be seen to compete with managing this pandemic within the NHS.

For individual clinicians concerned by pressures put on them by their in-house legal team or local coroners, whilst your obligation to assist the coroner has not disappeared, if you have a “reasonable excuse” then you should make that clear to your legal team, who will support you. The author can foresee the reasonable excuse argument being rather persuasive in current times!

Update 

On the 19 March 2020 the Chief Coroner sent a “Note” around to Coroner’s with further “Substantive Guidance” to follow next week. As it stands, the Chief Coroner is allowing Senior Coroner’s latitude in whether to adjourn inquests or not. That is a real shame; it was hoped for more certainty and perhaps a stronger line taken to protect the NHS. Maybe the Guidance next week will bring just that.

He has however been very clear on 3 day and over hearings and inquests with juries due to start on and after 31 March…..they are to be adjourned until September onwards.

So, it remains the position that NHS trusts will need open dialogue with their local Coroners if operational pressures make it impossible to offer the Coroner any meaningful assistance for the foreseeable future. Individual Coroners will need to consider whether the presence of an NHS witness or witnesses at court will have an impact upon the public health effort against COVID-19 .

The chief coroner does however offer some mitigation advice around remote access for witness giving evidence i.e. via face time, skype, video conference. Coroners’ courts and technology have seldom been the greatest of allies, and so whether this is realistic remains to be seen.

Clear guidance is hoped for, and is expected by the Chief Coroner. Until then, please contact us to discuss any concerns you may have and how we can assist with working with your coroner.

Dewi Ap-Thomas
Partner

DDI: 0151 242 6898
dewi.ap-thomas@weightmans.com

David Birch
Partner

DDI: 0113 213 4014
david.birch@weightmans.com

Martin English
Principal Associate
DDI: 0151 242 7988
martin.english@weightmans.com

Rachel Kneale
Partner
DDI: 020 7822 7175
rachel.kneale@weightmans.com

 

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