Revised guidance published on Prevention of Future Death Reports
On 4 November 2020 the Chief Coroner published revised guidance (“the Guidance”) on prevention of future death reports (PFDs).
There are some changes in the Guidance, despite the legal and procedural process of issuing PFDs remaining largely unaffected.
So what are the main additions to the Guidance? A breakdown can be found below:
The Guidance puts more of an emphasis on learning, making the point that “PFDs are not intended as a punishment; they are made for the benefit of the public”. It describes PFDs as being “vitally important if society is to learn about deaths”.
When remedial action has already been taken
When remedial action has already been undertaken, the Guidance states that coroners, when considering PFDs should focus on the current position (generally, the position at the end of the inquest). This means that the coroner ‘may not need to make a report to that body’ if the PFD recipient has already implemented appropriate action to reduce the risk of future fatalities. Therefore, a report to a relevant national organisation may be appropriate. This does not mean that an organisation should not do everything possible to allay concerns as far as they can, but if they are able to show that everything has been done as far as they can/or show commitment to change if it is something that has only arisen at the inquest, it leaves the option for it to be a more national concern, if they are unable to take action. Where an organisation has taken positive action, but this has not yet been fully implemented at the time of the inquest, the coroner may consider factors including the organisation’s commitment to take remedial action and address the coroner’s concerns, as well as the supporting evidence to demonstrate its commitment.
The coroner has stated twice in the Guidance that a PFD is not mandatory simply because an inquest is an Article 2 inquest.
Another key addition is that a coroner may take into account ‘local trends’ as well any other PFDs issued to that individual or organisation. However, coroners should not be drawn into reporting about matters that have not been explored properly at the inquest (or investigation).
An Annex is now provided with the Guidance with seven further illustrative examples of a PFD report, as opposed to just one. Four of these seven relate to health and social care organisations.
Issues not explored at the Inquest
Another key point is that coroners should not be drawn into issuing PFDs about matters that have not been explored properly at the inquest or investigation. However, It remains the case that PFDs do not have to relate to matters which were causative (or potentially causative) of the death in question.
How to challenge PFDs
Put simply the Guidance reflects existing case law stating that once a PFD has been sent, the coroner has no power to withdraw it. The appropriate remedy for correcting any mistake of fact in the report is by responding to it.
Despite the emphasis on PFDs not being intended as a punishment, health and social care organisations will be keen to avoid PFDs where possible. Organisations will also be aware of the potential for further regulatory scrutiny concerning the Care Quality Commission, when PFDs are issued. Whilst there is no guarantee it will avoid a PFD, the best approach to take is provide strong evidence that actions have already been taken (or will be taken) to address any issues. If an issue is anticipated, it is key to have a robust action plan and have a witness from the organisation/Trust at the Inquest who is able to offer assurances on the steps that are to be taken.
Weightmans have a highly experienced team of healthcare regulatory lawyers that support a variety of health and social care organisations through the inquest process. Please do not hesitate to contact us should you have any queries.