What evidence should we disclose to the Coroner?

Readers involved with the marshalling of evidence for inquests will be aware of the difficult judgements that this can involve. This issue has of late come into the public consciousness on a number of occasions. Great care is required to protect the positions of the individuals providing evidence, the health care organisations they work for, and of course legal services departments and their lawyers.

This article doesn’t attempt to provide specific advice about what should go into inquest statements. Rather, it aims to help the reader consider the context within which statements are handled, particularly when there are parallel processes ongoing such as serious incident (SI) investigations, complaints, or claims that may have led to the production of their own documentary evidence. Some planning from the outset, when retrospective accounts and opinions are being sought, can save problems arising further down the line. This is particularly true when those commenting have had no or minimal involvement in the matter being considered.

The first Francis inquiry, into care at The Mid Staffordshire NHS Foundation Trust, considered the handling by the Trust’s legal services manager and in-house lawyer of a report that was critical of the care received by a patient, in the context of an impending inquest. Criticisms made in the inquiry’s report were robustly challenged in evidence to the second enquiry, and we will find out very soon what conclusions the second report has reached as its publication is imminent. It has been a very difficult time for all involved.

Along a similar line, readers will be aware that new inquests into the deaths resulting from the Hillsborough disaster have been ordered. One of the reasons was that review of evidence recently disclosed to the Hillsborough Independent Panel identified that many of the initial statements provided by police officers had been amended. This is currently the subject of an investigation by the Independent Police Complaints Commission, and the role of advisers during the process of statement will no doubt be subject to scrutiny.

The difficulty largely arises where statements that have been produced for one purpose exist, yet the content has some relevance to another type of investigation, but also deals with wider issues. In the context of inquests the situation is particularly complicated, as on most occasions the coroner’s inquiry is relatively narrow – into how the deceased came by their death, as opposed to the wider “how and in what circumstances” of an Article 2 inquest. The coroner essentially undertakes a fact finding inquiry, and under the Coroner’s Rules should not hear evidence outside this remit.

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There is no legal requirement to provide the coroner with statements dealing with wider issues, and recent reviews have not altered this. Indeed there is no legal imperative to provide statements at all – the coroner’s only powers being to summons those who can give factual evidence to the court to do so orally. Of course, the process would be virtually impossible for all involved if assistance in the form of statements wasn’t provided, and the regulators of those in professions require their registrants to assist the coroner.

In recent years clinical governance practice across the NHS has become increasingly standardised, and SI investigations are now commonplace, and usually a requirement of commissioners. Along with this, frank explanations when care has significant deviated from the range of acceptable practice and patients have been injured are now the norm. Indeed, there is to be a new duty of candour that will mean that from April 2013 NHS commissioner-provider contracts will require NHS organisations “to tell patients if their safety has been compromised, apologise, and ensure that lessons are learned to prevent them from being repeated”. It may be that the imminent second Francis report will recommend going further.

Nobody can reasonably argue that the new openness is anything other than a good thing. However the limited scope of inquests has not altered, and there are no plans for significant changes in this respect, despite recent reviews of the coronial service. There are good reasons for this. Anyone who has ever investigated even a seemingly straightforward matter will soon has discovered that things are rarely as they seem at first glance. Few professionals do anything other than their best, but in some circumstances providing complex management with finite resources can be impossible. What on the face of it appears to be a simple failure to follow established protocols is often be explained when the wider position is known. Being realistic, some protocols are bound to be aspirational rather than prescriptive. Getting this over fairly within the confines of an inquest can be challenging. The coronial processes simply do not have sufficient check and balances to allow a full and fair exposition of both the facts and wider issues, which inevitably involve opinion on matters that are rarely black and white. Of course the law could be changed to allow coroners to consider these matters. The cost and practicalities would be fearsome, and the state already provides a mechanism by which such matters are considered through the claims process – the rules of which provide greater protection to those whose actions are being scrutinized, such as wider use of independent experts and allowing advocates to address the tribunal on the facts. To import these features into the coronial process, which would be essential to ensure fairness, would vastly increase the complexity and length of hearing.

The chance of concluding the majority of inquest within a year of the death would be remote. Unless such changes are made most inquiries should remain limited. However, families and their lawyers increasingly seek to persuade coroners to explore issues outside their remit. The coronial response to this varies between jurisdictions, although the trend is a significant widening of the scope of issues considered at inquests.

Given this situation, how should healthcare providers deal with the gathering of evidence that may end up in front of the coroners?

Being realistic, where care has been investigated for clinical governance purposes, has been concluded to be wanting, and this has been shared with the bereaved (voluntarily or going forwards under the new contractual duty of candour), it is neither desirable nor practicable for the coroner to be the only person in a court room not to know this. Many trusts now voluntarily share their serious incident investigation reports with the relevant coroner. There is no obligation to share all statements from internal inquiries with the coroner, but there will be times when this is the best course of action once everything has been weighed up.

A common difficulty is that statements produced to inform complaint and SI investigations (and sometimes for coroners) are not infrequently produced before key facts have been properly established, sometimes with the writer appearing to have little idea of what is required of them. Criticism of colleagues is made, and this doesn’t always withstand detailed analysis – plus in some areas there are as many differing opinions as there are people offering them. That said, it is impossible to properly undertake an SI investigation without obtaining and evaluating opinion. Dealing with such statements once they exist can be fraught with pitfalls. Even if they are subsequently confirmed to have reached the wrong conclusions, there is a danger of being perceived as having attempted to cover things up. Far better to ensure that only properly considered factual accounts and opinion are documented in the first place. Ideally these will have been considered, challenged and tested in a forum such as a root cause analysis meeting before being committed to paper. This ensures that all relevant issues have been considered. It may be better for these conclusions to be documented in a meeting note that is used in the investigation report, rather than being expressed as an individual opinion.

As a matter of law, statements for the coroner can be confined to facts, and need not include opinion. Where there are concerns about the care provided, in the first instance these should be reported into clinical governance processes for detailed investigation. Evidence produced to the coroner can then be confined to the facts. The investigation report itself can detail conclusions as to the standard of care, and importantly put these into context, and explain why things didn’t go according to plan. Finally, the loop can be closed by the report setting out the lessons learnt, and steps taken to reduce the risk of the circumstances recurring. This is usually the most effective way of avoiding the coroner concluding that a letter must be written under rule 43 of the Coroner’s Rules because it is considered that a risk to the lives of future patients persists.

In a nutshell, where it is considered that appropriate care standards may not have been reached healthcare organizations must carefully investigate the circumstances, but seek to develop systems that do so in a controlled fashion, that avoids the production of written conclusions (be they critical of care standards or not) until the circumstances have been properly considered and the conclusion suitably tested. If this approach is adhered to then the difficult issue of managing opinion evidence that doesn’t necessarily reflect the reality of the situation will often be avoided.

Where opinion evidence already exists it should be considered on a case-by-case basis, with legal advice being taken where necessary. However, where the opinion is clearly set out in an SI report and has been shared with the family and coroner, there can be no suggestion of cover up. The SI report itself does not form part of the inquest evidence. Sometimes, when all the factors have been weighed up it will be concluded best to voluntarily disclose more than what is legally required. Each situation will turn on its own circumstances.