Recent developments in inquests law
A summary of recent developments in inquests law, covering limits to the scope of inquests, proposed changes for deaths under DoLS authorisation and…
The Administrative Court reminds coroners that even where Article 2 is engaged they can only enquire into issues that might arguably have contributed to the death
It will be recalled that where Article 2 of the European Convention on Human Rights applies to an inquest the scope of the coroner’s investigation widens to cover not just the means by which the death occurred but the circumstances as well. Over the years there has been a tendency for some coroners to be persuaded by families to enquire into all manner of issues possibly affecting the deceased.
R (on the application of Speck) v HM Coroner for District of York  A.C.D. 47 involved a death in a police station, which all agreed triggered Article 2. The claimant wanted the coroner to investigate why there was no health-based place of safety available for her daughter to be taken to. The coroner declined, hence the application for judicial review, which was refused. Whilst it was desirable for there to be health-based places of safety no authority was under a duty to provide them.
Applying existing authorities, the judgment reminds coroners that:
- they must investigate matters that caused, or at least arguably appear to have caused or contributed to, a death;
- they have discretion to investigate matters that may have contributed to the death (nonetheless they must exercise their discretion properly – the Chief Coroner has recently revised his guidance to coroners on discretion https://www.judiciary.gov.uk/wp-content/uploads/2016/02/law-sheets-no-5-the-discretion-of-the-coroner.pdf );
- they have no discretion to investigate issues which cannot even arguably be said to have made any real contribution to the death;
- they are entitled to reach a conclusion that an issue is too remote before hearing the evidence – otherwise coroners would be bound to hear all the evidence that any interested person suggested could be relevant.
This is a really useful case for healthcare providers and other organisations. The principle also applies to non -Article 2 inquests.
Proposal that deaths under Deprivation of Liberty Safeguards (DoLS) will no longer need to be reported to the coroner
A DoLS authorisation should be in place for incapacitated patients in care homes and hospitals who are under continuous supervision / control and not free to leave. Readers will be aware that, at the moment, the death of anybody under a DoLS authorisation must be reported to the coroner, who in turn must hold an inquest. This is the case even where it is obvious that the death was due to natural causes and there is a doctor willing and able to certify this. The Chief Coroner has issued guidance to coroners - https://www.judiciary.gov.uk/wp-content/uploads/2013/09/guidance-no-16-dols.pdf.
Many aspects of the DoLS authorisation process have been described as not fit for purpose. They are a huge financial drain, not least on coroners who have to hold many additional inquests. There are knock on effects on hospitals and care homes that have the burden of providing evidence. Families become worried, and some assume there must have been problem with the care. The Law Commission made detailed proposals for a revised system, and undertook a public consultation last year. Their response to that was published on 25 May 2016.
There has been a large amount of rowing back from the original proposals for separate schemes for supportive care, restrictive care, and care in hospitals and hospices. However from the inquest perspective the following changes are to be taken forwards:
- amendment of the Coroners and Justice Act 2009 to remove the proposed new authorisation scheme. DoLS authorisation alone will then not create a requirement for reporting to the coroner, or the holding of an inquest;
- The new medical examiner system (see article in this bulletin) will provide scrutiny of deaths under DoLS authorisation (and all others).
Whilst at the moment these are only proposals (there is a further limited consultation open until 23 June) we can anticipate that this is getting close to the final DoLS-lite scheme that will be implemented. It seems unlikely that the final changes will be implemented before 2018 at the earliest.
In R (on the application of LF) v HM Senior Coroner for Inner South London  EWHC 2990 (Admin) the Administrative Court was asked to consider whether a patient with severe learning difficulties being treated on an intensive care unit was in state detention – in which case the coroner would be obliged to hear the inquest with a jury. It is surprising to many that ICU treatment might constitute state detention, but this is one of the many unforeseen consequences of the Supreme Court’s decision in Cheshire West (https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf). This markedly lowered the bar, making many aspects of the hospital care of incapacitated patients a deprivation of liberty.
Coroners must call a jury if they have reason to suspect that a death occurred in custody or otherwise in state detention and the death was violent or unnatural or the cause of death is unknown. The judgment stated that the notion that all ICU patients who lack capacity to consent to treatment are being deprived of their liberty was a wholescale and unwarranted extension of the Cheshire West principles. No jury was required on this occasion. As an aside, one of the judges also expressed the opinion that an inquest isn’t always necessary where somebody dies of natural causes whilst under the Deprivation of Liberty Safeguards, which is contrary to the Chief Coroner’s view (see preceding article).
Whilst this appears to be a helpful judgement for health and social care providers (and coroners), it is very difficult to square it with the reasoning in Cheshire West which was a judgment from a superior court. We understand that it is being appealed.
Widening the ambit of Article 2?
In December 2015 the Chamber of the European Court of Human Rights gave its judgment in Lopes de Sousa Fernandes –v- Portugal (no. 56080/13). The deceased underwent surgery to her nose and developed meningitis. It was found that there was a negligent delay in diagnosing this, and that this constituted a breach of Article 2 of the European Convention on Human Rights, even though it may not have caused the death. The decision was a surprise. Previously it had been understood that in a hospital case where the patient was undergoing voluntary treatment for a physical condition more than “mere” negligence was required to engage Article 2.
If this remains the law there will end up being many more Article 2 inquests, with their wider scope and greater potential for coroners and juries to reach conclusions that are overtly critical of care providers. In addition many more claims under the Human Rights Act, in which causation will not always need to be established, can be anticipated.
It has just been announced that the decision has been referred to the Grand Chamber for further consideration. We must wait to see if the status quo is restored.
Medical examiners to scrutinise death certificates
For many years the registration of deaths has required the completion by a recently involved doctor of a medical certificate of cause of death (MCCD) – more commonly referred to by medical professionals as the death certificate. Studies have long since illustrated that the information provided is frequently inaccurate. Far greater concerns arose following the conviction of the mass murderer Dr Harold Shipman, given his role in certifying his patients’ deaths. The subsequent public enquiry included a review of the process, which concluded in 2003 that there needed to be independent scrutiny of the cause of all deaths that didn’t involve the coroner. A system of independent medical examiners was proposed and although progress was slow, pilots were set up. The necessary primary legislation was incorporated into the Coroners and Justice Act 2009, but this aspect has not yet been brought into force.
The matter was invigorated by the Francis enquiry and a subsequent public consultation. The decision has recently been made to proceed, and a further consultation was launched in March 2016 covering some of the details. This is open for responses until 15 June 2016 and features twenty pages of draft regulations and associated forms.
In addition, further regulations are to be brought in that will unequivocally make it the duty of medical practitioners to report potentially unnatural deaths to the coroner. At the moment their only statutory duty is to provide an MCCD to the registrar, although in practice doctors have long since done the reporting to coroners. We have provided further details elsewhere in this bulletin.
The proposed new process
Unless the death is reported to the coroner, a qualified attending practitioner (QAP),who has to be a registered medical practitioner, must complete an attending practitioner’s certificate (which will still be referred to as the MCCD). The proposed general qualifying criteria have been changed slightly so that the doctor must have attended the deceased in the preceding 28 days (currently 14 days). Some flexibility has been built in, aimed at GPs who are QAPs but cannot promptly provide a certificate – other GPs in the same practice who have seen the patient in the previous 12 months can certify.
The actual information on the attending practitioner’s certificate is largely the same as current MCCDs, apart from a box that is completed later by the QAP (or their administration team), confirming a medical examiner has scrutinised and accepted the proposed medical cause of death. However, before completing the certificate, the QAP must now review relevant medical records, the results of any medical examination of the body, and any other relevant information, to establish the cause of death to the best of their knowledge and belief (which is the same level of certainty as now). Advice can be sought from the medical examinerat this stage.
Whilst not a statutory requirement, for all deaths doctors will be encouraged to complete a two page form titled Final Entry in Clinical Record Following a Death before they fill in the MCCD or speak to a medical examiner. This includes a synopsis of the circumstances of death, medical history and record of any external examination of the deceased. There are boxes to tick for whether the death was unexpected, sudden but not unexpected, expected, or whilst on an individualised end of life care plan. Confirmation is also sought about implants, medical devices or communicable diseases. The preliminary view on cause of death is prompted. There is also space to document any advice from the medical examiner or coroner, and the decision about whether the doctor feels able to prepare an MCCD for review by the medical examiner, or identifies the need to refer to the coroner.
After completing the MCCD in draft the QAP must then forward it to the medical examineralong with relevant medical records and any other relevant information. Themedical examiner will, it is hoped within one to two working days:
- Scrutinise the medical records
- May require external examination of the body, which they can personally carry out or arrange for someone else to (which may be a trained non-medical examiner)
- Discuss the cause of death with a member of the bereaved family, and offer an opportunity to raise any concerns – it is envisaged that ordinarily this will be by telephone
- Consider whether the death should be reported to the coroner
- Invite the family member to sign a form confirming their discussion, unless the coroner becomes involved. In practice this will usually be signed by the informant at the time the death is registered
- Sign a notification of confirmed cause of death and forward it to the registrar, copy to the certifying doctor / hospital or practice, or
- If a different medical cause of death is felt appropriate, contact the certifying doctor and try to get them to agree to the alternative or, where necessary, refer to the coroner.
Upon receipt of the notification of confirmed cause of death, the certifying doctor or their administrator completes the box on the MCCD that confirms the date of the medical examiner’sconfirmation. They then arrange for it to be delivered to the registrar – which as now will usually be achieved by giving it to the informant who will be registering the death, usually a relative.
Qualified attending practitioner
Who will pay?
The whole process is to be funded by a fee, ordinarily to be paid to the local authority by families of the deceased, envisaged to be in the range of £80 to £100. This compares favourably with the current total fee of £184 paid by families of those being cremated, which is the disposal method of 75% of bodies in England and Wales. However, it will be a new fee for those choosing burial. Essentially the system is envisaged to be self-funding and considerably cheaper for most than the existing process.
No more ash-cash
One significant impact on some doctors will be that there will no longer be the opportunity to earn fees for completing cremation forms. The current cremation system involves three separate doctors, the first two paid £82 each, plus an average of £20 for the medical referee who finally authorises the cremation.
The consultation is open until 15 June. It can be found at https://www.gov.uk/government/consultations/death-certification-reforms
Proposed new duty requiring doctors to report certain deaths to coroners
It has long been considered strange that there is no statutory duty on doctors to report potentially unnatural deaths to their local coroner. Whilst they are arguably under a common law duty, the fundamental reporting duty has long since fallen on the local authority’s registrar, based on the information set out by the doctor in the Medical Certificate of Cause of Death (more commonly referred to by medical professionals as the death certificate). The Coroners and Justice Act 2009 made way for this situation to change, and after a 2010 consultation, draft regulations have now been published. They are currently subject to further consultation, as part of the wider death certification consultation that remains open until 15 June 2016.
Following submissions to the 2010 consultation, the draft regulations make no radical changes to the circumstances that require a report to the coroner. However, they aim to provide more clarity and part of the current consultation seeks views as to whether this has been achieved. The proposed circumstances are set out below, with further guidance to be published in due course:
- as a result of poisoning, the use of a controlled drug, medicinal product or toxic chemical;
- as a result of trauma, violence or physical injury, whether inflicted intentionally or otherwise;
- is related to any treatment or procedure of a medical or similar nature;
- as a result of self-harm, (including a failure by the deceased person to preserve their own life) whether intentional or otherwise;
- as a result of an injury or disease received during, or attributable to, the course of the deceased person’s work;
- as a result of a notifiable accident, poisoning or disease;
- as a result of neglect or failure of care by another person;
- the death was otherwise unnatural;
- in prison, police custody or other state detention;
- where there is no attending practitioner as prescribed by regulations made under s.20 or no such practitioner is available to certify the cause of death within a reasonable period following the death; or
- the identity of the deceased person is unknown.
The consultation doesn’t hint at any change to the need to report natural deaths where the deceased is under a Deprivation of Liberty Safeguards (DoLS) authorisation, or equivalent order from the Court of Protection. However, the Law Commission have very recently published the outcome of their 2015 consultation on reforming the DoLS process, and recommend that the government amend the law so that it is no longer mandatory to report the death of such a patient from natural causes to the corner. More detail is provided elsewhere in this bulletin.
It is envisaged that doctors who routinely under or over report will initially be given further training. If the problem persists they will be reported to the local authority or NHS trust medical director. They face being reported to the General Medical Council if the issue isn’t resolved and where there is wilful failure to report, the police may become involved.