Disclosure to and by the coroner
Over the last few years there have been huge changes to both law and practice with regard to disclosure of information to coroners.
Over the last few years there have been huge changes to both law and practice with regard to disclosure of information to coroners. The relevant parts of the Coroners and Justice Act 2009 (CJA) came into force in July 2013, with their associated Coroners Investigation Regulations and Coroners Inquest Rules, including criminal sanctions for intentionally suppressing relevant documents. The issue had already been considered by the Francis enquiry. More recently, the High Court has considered what must be shared with the coroner, and how coroners should then decide what to disclose onwards to other interested persons. The statutory duty of candour cements these changes into place.
Disclosure to the coroner
Under the old coronial law, coroners had virtually no powers to require disclosure of documentation, or even to insist on the provision of witness statements. Their powers were confined to summonsing witnesses to attend and give oral evidence. Whilst not specifically set out in the investigation or inquests rules (and therefore open to being overlooked), CJA Schedule 5 now gives coroners the power to require evidence to be given or produced:
- At the inquest by giving evidence and producing any document in the person’s custody or under their control relating to a matter relevant to the inquest;
- To provide a written statement during the investigation (previously provision of statements was a voluntary matter);
- To produce any documents or any other thing relevant to the investigation;
- A caveat remains in respect of privileged material that would not be required to be disclosed in civil proceedings;
- Ultimately, there are powers of entry, search and seizure.
To be effective, these powers require the coroner to serve a formal notice that also sets out the consequences of not complying. Obviously, for day-to-day matters, coroners will use an informal approach, at least in the first instance. There is an opportunity to respond and explain that compliance is not possible or is unreasonable, following which the coroner then makes a decision after considering the importance of the information and the public interest. Note that a document is in a person’s custody whether they are in possession of it or merely have a right to possession of it.
Intentional suppression or concealment of a document believed to be relevant, or its alteration or destruction, can result in criminal sanctions including a fine of up to £1000 or up to 51 weeks in prison. For these purposes, the definition of relevant is very wide – “if a person conducting an investigation…would (if aware of its existence) wish to be provided with it”. Clearly great care and thoroughness is required when dealing with disclosure issues. Without suitable records evidencing due process, it could be very difficult to prove that an inadvertent non-disclosure wasn’t intentional.
In practice, many coroners now routinely request access to medical records for healthcare related inquests.
Disclosure by coroners to interested persons
Part 3 (paragraphs 12-16) of the Inquest Rules deals with disclosure by the coroner to other interested persons. The onus is on interested persons to request disclosure, and of course they won’t always know what the coroner holds – although in reality blanket requests are usually made by experienced advisors. The starting point is that the coroner must disclose relevant (in the coroner’s opinion) documents upon request as soon as is reasonably practicable. Examples specifically mentioned in the Rules are post mortem examination reports, other reports provided to the coroner during the investigation, and any other document the coroner considers relevant to the inquest (which clearly may include the deceased’s medical records). Disclosure may be by electronic copy and redaction may be undertaken. Alternatively, the document may be made available for inspection.
Rule 15 provides some restrictions on disclosure in that the coroner may refuse where:
- There is a statutory or legal prohibition on disclosure (which may cover privileged material shared only with the coroner)
- The consent of any author or copyright owner cannot reasonably be obtained
- The request is unreasonable
- The document relates to contemplated or commenced criminal proceedings or the coroner considers it irrelevant to the investigation
As a change to the old rule, the coroner may no longer charge a fee for disclosing documents to interested persons before or during an inquest.
Consideration by the High Court
The case of Worcester County Council and Worcestershire Safeguarding Children Board v HM Coroner for the County of Worcester (2013) EWHC 1711 (QB) has been considered by the Chief Coroner and turned into his law sheet number 3. His heading is perhaps pertinent – that disclosure is to the coroner and not to the public.
Essentially, after the death of a 16 year old girl by hanging, the Local Safeguarding Children Board (LSCB) undertook a serious case review which included obtaining 10 Individual Management Reviews (IMRs) and six Information Reports (IRs) as well as an overview report in draft form pending the outcome of the inquest. The coroner requested all three types of documents and was reluctantly provided with the overview report only. The coroner therefore applied to the High Court and the LSCB cross-applied that the reports were either protected by the public interest immunity or were unnecessary. The LSCB deployed the long used argument that disclosure was not in the public’s interest as those contributing to future enquiries may not be candid if they knew that reports given would not remain confidential. It was argued on behalf of the coroner that he could not fulfil his statutory function without making proper enquiries and that he believed that reports would assist him in determining the scope of the inquest by identifying the underlying factors, the identity of relevant witnesses, and documents and the lines of enquiry it would be necessary to pursue with those witnesses. This included whether an Article 2 inquest was necessary. The High Court sided with the coroner, as the public interest in support of a full and appropriately detailed inquest firmly outweighed the claim for non-disclosure, bearing in mind that disclosure was to the coroner rather than the public.
Onward disclosure by the coroner to interested persons would be a matter for determination by the coroner on each occasion. The law sheet draws attention to the analogy with police reports that are commonly given to the coroner but not disclosed to interested persons, not least because they are not primary evidence.
Hence coroners should explain that there is a two stage process with disclosure to the coroner initially being sought and then representations made as to any onward disclosure.
Disclosure obligations to the coroner are now onerous, and the consequences of non-compliance severe. Organisations providing healthcare services are complex, and frequently there are a number of processes going on simultaneously with the coroner's investigation, often with written accounts being obtained before the coroner requests information. This might be for risk management purposes or to respond to complaints. Whilst ideally only one factual account will be provided by each staff member, this isn't always achieved. It is essential that the individual dealing with the disclosure process knows precisely what documentation exists elsewhere within their organisation. Any significant discrepancies are best explained in a further statement.
If the documentary evidence suggests that there may have been more than one possible sequence of events, it is for the coroner to hear all the evidence and make findings of fact. It is not appropriate to provide solely the account preferred by the healthcare provider. If there is any doubt about what to disclose to the coroner, legal advice should be sought on a case-by-case basis.
Whilst some documents will be privileged from disclosure, where there is problematic evidence, the approach must be to get the issue into the open and deal with it, and not to pretend it doesn't exist.