article
Trial by inquest?
23 July 2008
Simon Tait and Barbara Anthony of law firm Browne Jacobson examine
the impact of the Human Rights Act and the potential impact of the
forthcoming Coroner’s Bill.
Inquests can be an uncomfortable process for
public bodies and their staff. The Human Rights Act 1998 has
had a profound impact on the way that inquests are conducted,
particularly when the circumstances surrounding a patient’s death
are challenging. The recent MOD inquests, concerning the
deaths of soldiers in Iraq, have clearly shown the prominence of
inquest verdicts within the media. Those cases illustrate
that a Coroner's verdict can refer to a public body's failure if
the evidence demonstrated that a failure occurred.
The extent of the inquiry
Since the introduction of the Human Rights
Act, attempts have been made to use Article 2 to broaden the scope
of the Coroner's inquiry. Article 2 requires the Coroner to
carry out a more lengthy and detailed inquiry when a person dies
whilst they are in the care of the State. In such cases,
Trusts are at risk that the inquest may become a mini-trial with
families requiring disclosure of sensitive information.
Arguments are sometimes made that NHS patients
should be treated as being in the care of the state. Normal
hospital deaths usually do not fall within this category, unless
the circumstances surrounding the death are so serious that they
merit a more robust investigation.
Deaths involving prisoners will always require
an Article 2 inquest. But what about deaths involving patients
detained under the Mental Health Act 1983? The recent case of
Savage v South Essex Partnership NHS Foundation
Trust may now make it easier for families to argue
that detained patients who die should receive an “Article 2”
inquest. This follows the Court of Appeal’s decision that the
position of a detained patient is more akin to the position of a
prisoner than an ordinary hospital patient. Therefore
Trusts involved in the treatment of prisoners or detained patients
for any healthcare condition need to be prepared for Article 2
inquests.
The Coroner's Bill and disclosure
Another important aspect of the Human Rights
Act is the requirement of the Coroner, under Article 6, to carry
out a fair hearing and request disclosure of documents.
The Government has recently announced that it
intends to bring the Coroner’s Bill before parliament as soon as
parliamentary time allows. Coroners do not currently have the
power to compel disclosure of information and have to apply to the
High Court for a disclosure order. The Bill will rectify this
by giving Coroners powers equivalent to the High Court. It is
therefore important that Trusts have in place proper systems for
providing information and documents to the Coroner.
Rule 43 recommendations
Currently, Rule 43 of the Coroner's Rules 1984
permits Coroners to make recommendations to an authority with power
to take appropriate action where they believe such action could
prevent similar fatalities. The Coroner's Bill will now
require organisations that receive Rule 43 recommendations to
respond to the Coroner. The Chief Coroner is tasked with
monitoring this process and to provide a summary of them in his
annual report to parliament.
Trusts should therefore expect to see more
Rule 43 recommendations from Coroners. It is vital that
Trusts carry out their own investigations promptly following a
death of a patient. Adverse publicity can often be minimised
if the Trust can demonstrate at the inquest that lessons have
already been learned from the death.
Inquests in the Future
The combined effect of the Human Rights Act
and introduction of the Coroner's Bill, may mean that Trusts will
increasingly face more detailed and potentially challenging
inquiries. It is clear that the Coroners Bill is intended to
ensure that an Inquest is an inquiry for the family’s benefit, and
Healthcare providers need to ensure that they are fully prepared
for hearings.
Trusts should liaise with their legal advisors
as soon as issues regarding disclosure or the extent of the inquiry
arise. Inquests are becoming increasingly important to the
outcome of future claims. Preparation for them will be
key.
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