Lessons learned from the Duncan Bennett case

A recent case has thrown in to sharp focus the considerable powers of coroners to demand a person or organisation to deliver up information relevant…

Summary

A recent case has thrown into sharp focus the considerable powers of coroners to demand a person or organisation to deliver up information relevant to an investigation and inquest. That power extends to the potential severe punitive action to be taken when there has been a failure to comply with the coroner’s demands.

Mr Duncan Bennett, described as a “clinical lead” for a London care home has pleaded guilty to intentionally withholding evidence and information from a coroner who was investigating the death of a vulnerable teenager. The coroner fined Mr Bennett for his non attendance and referred the matter to the CPS. Mr Bennett pleaded guilty to the offence at Wimbledon Magistrates Court on 16 August 2019 and awaits sentence. He has been warned that a period of imprisonment could follow. It has been reported that this is the first such prosecution under powers granted to coroners under Schedule 6 of the Coroners and Justice Act 2009 (“the Act”).

The details

Coroners have considerable power and discretion to call for relevant evidence to ensure that they can undertake a full and fearless investigation. The courts rarely intervene with the coroner’s discretion. The coroner has statutory powers to request the attendance of people in order to give evidence or provide a written statement, and that information and paperwork are delivered up to the coroner or made available for inspection. Many working in the health and social care sector will be familiar with the exercise of these “Schedule 5” powers in some cases and fines can follow for non-compliance, although this is rarely necessary.

However, to exercise powers under Schedule 6 of the Act, is exceptional, and as Mr. Bennett has discovered, a failure to comply with such a request can (and will) result in a prosecution in the criminal courts and could lead to a fine, imprisonment or both. It is highly likely that Mr Bennett was given many warnings in this case. The coroner will have taken this action as a last resort and as a firm reminder to those required to co-operate with the coronial investigation, that they must provide compelling reasons for non-compliance with the coroner’s request.

What does this mean for me?

This is an important case for those in the private healthcare sector who on a personal level might not be regulated. Those care providers often hold key and highly sensitive information about an individual’s care which is vital not only for the inquest investigation but also to answer a grieving family’s questions. To ignore such a request in addition to adding to the distress of the family will inevitably create reputational damage for the care provider and invite further scrutiny by the regulator.

The case exposes the very real problems that can arise in relation to governance, record keeping, competency, due diligence and the principles of transparency and candour. In any inquiry and inquest into the death of a person in a care setting, the CQC, as the key regulator, will be invited to participate in the coronial process as Interested Persons. In this case that would be inevitable given the nature of the death. It is likely that the care provider will be under considerable scrutiny in terms of its oversight of Mr Bennett’s fitness to hold such a senior position and there will be questions asked about the home’s governance. The decision making of board members will be under the spotlight.

It may be the case that Mr Bennett was suffering from stress or worried about what would be revealed by the disclosure of information. That has had little impact on the outcome of the investigation in any event as the jury found the death to have been contributed to by the neglect of the service. Ignoring the coroner has clearly made matters worse for the family, for Mr Bennett and the service itself. Co-operation may not have made a significant change to the outcome, but would have made an already difficult process less traumatic for all those involved.

Failure to comply with a request from the coroner under the Act, or if needs be, to properly challenge any request will always be of relevance to the CQC. A care provider that is not prepared for and properly advised in these circumstances leaves themselves really exposed to the type of problems encountered by Mr. Bennett, the publicity that has ensued and the challenging scrutiny of the CQC.

Suggestions

Specialist healthcare and inquest lawyer, Sarah Knight, suggests the following:

  1. Where concerns are raised following the death of a service user, the care provider should seek immediate legal advice and assistance before any internal investigation is commenced.
  2. If a problem in the care provided is identified, then advice should be sought on the application of the duty of candour.
  3. If a coroner’s investigation is launched and an inquest anticipated, very careful consideration must be given to the impact of disclosure of information and the consequences of failure to comply with any notice issued.
  4. The CQC will almost certainly review the registration of any care provider that is the subject of criticism or inquiry in the coroner’s court. Engaging with lawyers that understand the subtleties of this coronial system and its interaction with the regulatory landscape will be an advantage. 

For further information about any of the issues in this update, please contact Sarah Knight, Principal Associate in the Healthcare Regulatory team, on 0121 200 7288 or sarah.knight@weightmans.com.

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