On 27 May 2021, following an inquiry into the effectiveness and capacity of the Coroner Service in England and Wales, the House of Commons Justice Committee published a report calling for a number of “fundamental” reforms to be made to the service, most notably that there should be a legal “equality of arms” during inquests, with bereaved people having an automatic right to public funding for legal representation. Some of the key findings and recommendations relevant to medical law practitioners are addressed below.
There are 85 local Coroners’ services throughout England and Wales, all of which are administered and funded by local authorities. There have been continued calls for more than 20 years for a national Coroners’ service, including from Dame Janet Smith after the Harold Shipman inquiry and the Luce Review.
The Coroners and Justice Act 2009 [“CJA 2009”], implemented in 2013, provided for the appointment of a Chief Coroner to give national leadership to coroners but not a national service. The CJA 2009 also contained provisions for the Coroner Service to be inspected by the Inspectorate of Courts Administration (excluding inspection of judicial decisions) and for a system of appeals to the Chief Coroner from coroners’ judicial decisions. Neither was implemented, each has since been repealed, and the Inspectorate of Courts Administration was abolished in 2011. The Ministry of Justice reviewed the effectiveness of the CJA 2009 in 2015 but has not published the results or conclusions of that review.
The Committee found that there have been substantial improvements to the Coroner Service since the 2009 Act was implemented in 2013, including guidance and mandatory training for all coroners and coroners’ officers, appraisals for Assistant Coroners, and improved consistency by amalgamation of smaller areas. The Committee also highlighted that the Coroner Service had responded well to Covid-19.
However they made a number of critical findings which included, inter alia, the following:
- Help and support for bereaved people is variable between coroner areas and depends on the priorities, capacity and skills of the local coroner service and local volunteers in the Coroners’ Courts Support Service which are not consistent.
- There is a lack of consistency in how coroners manage inquests (including pre-inquest review hearings) in particular in relation to the disclosure of documents to bereaved people in advance of the inquest. Bereaved people are at a disadvantage when they do not have access to the evidence, and in order to achieve fairness it is important that the process for obtaining evidence is explained clearly to them.
- The majority of witnesses to the inquiry, two Chief Coroners, and almost everyone who has been commissioned to review aspects of the Coroner Service see the need for a unified service for England and Wales. There is unacceptable variation in the standard of service between coroner areas. The quality of each local coroner service should not have to depend on whether the local authority funding the service and the Senior Coroner for that local authority’s area have a shared understanding and priorities for provision for the service.
- As with calls for a national service for England and Wales, there is an overwhelming and long-standing view that the Coroner Service would benefit from the presence of an inspectorate overseeing its work.
- The failure of health and social care bodies to fulfil their duty of candour to bereaved people during coroners’ investigations and inquests is disappointing.
- There is an inequality of arms when it comes to legal representation between public bodies and bereaved people. Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one.
- It is unacceptable that the people who have been bereaved are not entitled to automatic non-means tested legal aid at inquests into multiple deaths following a public disaster. These inquests are complex and ‘equality of arms’ is a fundamental requirement to make sure those who have been bereaved can participate fully.
- The current arrangements for challenging coroners’ decisions are unwieldy and cause unacceptable delays, stress and often expense, for bereaved people.
- There may be circumstances where, with the consent of the bereaved people concerned, it would be sensible for the High Court to be able to direct that the particulars of the Record of the Inquest be amended as appropriate without ordering a fresh inquest.
- The system for the Coroner Service to contribute to improvements in public safety is under-developed. The absence of follow up to coroners’ ‘prevention of future deaths reports’ is a missed opportunity.
- The current arrangements for publishing coroners’ reports and responses to those reports require improvement. The information published is the bare minimum and is difficult to search and analyse.
The Committee made the following recommendations in respect of the above findings:
- The MOJ should, as a matter of urgency, provide funding for support services for bereaved people at inquests (such as those provided by the Coroners’ Courts Support Service), so that this support is available in every Coroner Area.
- Senior Coroners are encouraged to make sure that bereaved people are made aware by their staff of the specialist support organisations that are available to them both locally and nationally.
- The MOJ should implement a statutory Charter of Rights for bereaved people, modelled on the criminal justice system’s victims’ code.
- The MOJ should amend the Coroners’ Rules to make it patently clear that the duty of candour extends to the Coroner Service. The Government should consider whether a similar duty to be candid at inquests should be extended to all public bodies.
- The MOJ should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for representation is also available for the people that have been bereaved.
- The MOJ should introduce an automatic entitlement to non-means tested legal aid for representation for bereaved people at inquests into mass fatalities.
- The MOJ should introduce a system of appeals similar to that in section 40 of the Coroners and Justice Act 2009 as originally enacted.
- The MOJ should unite coroner services into a single service for England and Wales.
- The MOJ should establish a Coroner Service Inspectorate to report publicly on how well each area accords with the Chief Coroner’s ‘Model Area’, its readiness in case of mass fatalities and the level of service provided to bereaved people.
- Consequent upon the establishment of a national service and an inspectorate, there should be a review of the mechanisms available for handling complaints against coroners.
- The MOJ should provide funding so information about the risks to public safety discovered by coroners and inquest juries is freely available online, along with the actions that have been proposed in response.
The Committee’s conclusion that there “is a still an unacceptable variation in the standard of service between Coroner areas” confirms the experience of practitioners in the field. The lack of consistency in the conduct of inquests between Coroner Areas is stark, and the depth and quality of the investigation into the deceased’s death remains a postcode lottery.
A coroner in one local authority area investigating a hospital death may hold several pre-inquest review hearings, order extensive disclosure, and instruct three independent experts of varying disciplines to advise on the standard of care and causation, whereas a coroner in a neighbouring area investigating a similar case may provide little disclosure, refuse to obtain any expert evidence at all, and insist that the matter be heard in half a day.
In the absence of any formal route of appeal, and with judicial review of a decision the only option (a costly process with often very limited prospects of success), the result is that unrepresented bereaved families often go to an inquest with incomplete disclosure of medical records, when (without independent medical advice, or any medical knowledge) they are unaware of what more they need, or what the notes and records mean.
In stark contrast the other interested parties to the inquest (e.g. hospital trusts) typically have legal representation, and their representatives can gain an understanding of complex medical issues from their own witnesses, who are often experienced consultants.
The Committee highlighted that in complex inquests like Hillsborough the relevant public authorities – such as the police and medical services – are legally represented at public expense, and that it was unfair that bereaved people should not have similar representation. Practitioners however know that it is not just in the high-profile cases that public authorities are legally represented at public expense.
It is commonplace for hospital/mental health trusts and local authorities to be represented in inquests involving clinical care or mental health. In contrast, representation for most bereaved families must be on a conditional fee basis when it can be extremely difficult, pre-inquest and often with inadequate disclosure and little time for advance investigation, to persuade solicitors of good prospects for an ensuing damages claim.
Many practitioners will agree with the Committee’s conclusion that bereaved people should not be put through the difficult process of meeting complex legal requirements – and be means-tested for legal aid – when the public authorities they often face in court are legally represented at tax-payers’ expense.
It remains to be seen whether a cash strapped, post-pandemic government will be prepared to accede to the Committee’s recommendations. The response from Government is due by 27 July 2021.