- July 24, 2014
- By Dr Jock Mackenzie
- 0 comments
Inquests and clinical negligence claims
If someone close to you has died in hospital and it is not clear why, their death is likely to be reported to the Coroner who, in turn, may decide to hold an Inquest. You may then find yourself in rather unfamiliar territory, unsure of what an Inquest is, what it does and what to expect from the process. At the same time, you may be trying to come to terms with the death of a loved one when you are both unsure of the cause of their death and have concerns regarding their medical treatment.
The purpose of an Inquest
The Coroner, who is an independent judicial officer, needs to be satisfied that he or she can explain who the deceased was, where they died, when they died and how they came by their death. It is this latter issue, the cause of death, which is usually the most difficult in medical treatment cases. In most such cases, these four facts are readily determinable from the information available from the hospital following the death; however, this is not always so, and sometimes a post mortem may need to be performed to help determine the cause of death, either performed by the hospital pathologist or by an independent pathologist commissioned by the Coroner. It is possible that the post-mortem will establish the cause of death as natural and the Coroner will then not need to hold an Inquest. However, if the cause of death remains unknown even after the post-mortem or if the Coroner considers that the deceased may have died an unnatural death (or in certain other limited circumstances), he or she will continue the investigations and hold an Inquest, during which further evidence can be obtained that may enable the Coroner to determine what happened. It is important to be aware that an Inquest is an inquisitorial ‘fact-finding’ process, rather than an adversarial process typically associated with Courts, and it is not a process to apportion blame.
The Inquest hearing and the evidence
Most medical treatment-related Inquest hearings are held in public, usually without a jury, and the Coroner decides the verdict having heard all the necessary evidence. The Coroner’s officer will usually inform interested parties to the Inquest who is to give evidence at the hearing. In medical treatment cases, this will normally be a member of the deceased’s family to confirm who the deceased was and the pathologist who performed the post-mortem to explain the findings and the likely cause of death. It is also possible that other witnesses will be required to give evidence regarding the facts surrounding the death, including other family members and/or hospital staff. Sometimes medical experts are required by the Coroner to give specialist evidence to help explain some of the medical issues.
Witnesses will almost always have provided to the Coroner a written witness statement in advance of the hearing although it may be required that oral evidence is also given by the witness. Witnesses whom the Coroner wishes to call to give evidence are mandated to do so once informed, and may be summonsed by the Coroner to ensure that they attend. The Coroner will ask initial questions of a witness, but any interested person may be allowed to ask their own questions, subject to the Coroner agreeing as to the appropriateness of the questioning (having regard to the purpose of the Inquest being about finding facts and not apportioning blame). Other evidence that may often be required at an Inquest in a medical case includes the deceased’s medical records.
As most Inquests are held in public, anyone can attend, so, depending on the nature of the Inquest, there may be some press interest and media reporting. Additionally, an Inquest is a formal occasion, so those attending should be dressed smartly, although comfortably.
Usual verdicts in medical cases
At the end of an Inquest, the Coroner will decide on a verdict, which is the legal determination of who died, where and when they died and how they died, such that the death can be formally “registered”. The verdicts that a Coroner may give in a medical treatment case include:
This refers to a death caused by the normal progression of a natural illness which has not been contributed to by any form of ‘unnatural’ human intervention, at least to any significant degree. If the deceased had a pre-existing medical condition, the Coroner will consider whether the death was caused by the underlying condition or some ‘unnatural’ intervention which resulted in that condition becoming fatal when otherwise death would not normally be expected (see also accidental death/misadventure below).
This refers to a death that was ‘unnatural’ but not ‘unlawful’. In the medical treatment context, such a verdict is used when the deceased died as a result of actions by either themselves or others which had unintended consequences, such as treatment of an underlying condition causing death when it would not normally be expected that such a condition would result in death. This verdict, however, does not suggest any fault on the part of the treating health professionals.
‘Misadventure’ has many similarities to ‘accidental death’, but a distinction is when, for example, a health professional deliberately undertakes a particular task, such as a planned surgical procedure, which results in death as an unintended consequence. In reality, ‘accidental death’ and ‘misadventure’ are almost the same.
Neglect or lack of care
For a verdict of ‘neglect’ to be recorded, there must have been a gross failure to provide the very basic necessities of life, such as food, water, warmth or treatment, and there must also be a connection between the ‘neglect’ and the cause of death. As a verdict, it is unusual to have ‘neglect’ on its own and it is usually used to express a contribution towards another cause of death (e.g. “natural causes with neglect”). Such verdicts are very rare in medical cases, as they come about only if there has been an absence of basic medical attention.
There are some other verdicts (such as suicide, unlawful killing, stillbirth, alcohol or drug-related) that are very unlikely to be relevant to medical treatment cases.
If the Coroner (or jury) is unable to determine the cause of death on the basis of all of the evidence, an ‘open’ verdict may be recorded, which signifies that none of the other verdicts have been sufficiently proved.
A Coroner can also give a ‘narrative’ verdict. This is a verdict that explains in a narrative form, often in some detail, the circumstances in which the deceased came by their death. It is often given by a Coroner in combination with one of the verdicts above and will typically include observations by the Coroner regarding treatment failures that either caused or contributed to the death; such a verdict can be a powerful way of exposing problems or mistakes that have been made. The Coroner, however, will be very mindful not to stray into commenting on matters of civil liability and will seek not to indicate negligence.
Coroner’s reports to prevent future deaths
In addition to recording the verdict, where the Coroner believes that there is a continuing risk of death, he has powers to report the circumstances of death to the relevant authorities with the power and responsibility to take steps to try to prevent further such deaths in the future. Any such authority that receives such a report has 56 days within which to provide a written response to the Coroner explaining what steps have been taken, what steps are still to be taken or why no steps have yet been taken. The Coroner sends the report and response to the Chief Coroner, who publishes them on the judiciary website: http://www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/summary-of-reports-to-pfds/
Most Inquests are held without legal representation being required and the Coroner will seek to ensure that the Inquest process is conducted fairly and thoroughly so that the correct facts can be ascertained. It is, however, possible, and sometimes important, to have legal representation at an Inquest. The role of a specialist solicitor or barrister/Counsel at an Inquest hearing is both to support the family of the deceased through the process and to question witnesses who may have important factual information regarding the circumstances surrounding the deceased’s death. Not only is this to assist with navigating the Inquest process, but also such information can be very useful in helping decide whether or not to pursue a claim for clinical negligence subsequently. While questioning should not stray beyond the confines of the Inquest’s purpose, nevertheless there are often useful discussions which may be directly relevant to any consequential civil claim.
Obtaining funding for the preparation for and representation at an Inquest can be difficult and in only exceptional cases will funding be available from the Legal Aid Agency (such funding is means-tested). Very occasionally legal expenses (before the event) insurance may cover funding, but more often than not representation will need to be funded by way of either private funding or a Conditional Fee Agreement (CFA). It is notable that it is possible in cases in which there is a subsequent successful clinical negligence claim to recover Inquest costs as costs incidental to the civil proceedings.
The Ministry of Justice has provided two helpful Guides to the Inquest and Coronial process, which may offer additional help and which can be found at:
Anthony Gold are both clinical negligence and Inquest specialists, experienced in preparation for and representation at Inquests and in pursuing subsequent clinical negligence claims, so please do not hesitate to contact us for any further information or assistance.