healthcare update - issue 11
Government consultation published on implementation of the Coroners Act
The government has launched a consultation on the implementation
of the Coroners and Justice Act. Although the Act received royal
assent in late 2009, it is not expected to come into effect until
2012. The latest consultation document contains further details of
how the new law is likely to work in practice, and raises several
important issues for healthcare organisations. The government’s
intention is to publish a further consultation in 2011 attaching
the new coroners’ rules.
What are the key issues for health providers in this
consultation?
The government has provided more detail of its proposals in
relation to the reporting of deaths to the Coroner and the scrutiny
of death certificates.
For the first time, there will be a specific duty on medical
practitioners to report deaths to the coroner. Although the
government has, at this stage, rejected the need for a separate
criminal offence for breaches of this duty, it is likely that
deliberate or wilful failure to report would be notified to the GMC
and/or relevant NHS Trust. Healthcare providers will need to ensure
that the new obligations are understood within their
organisations.
Currently, there is no useful national guidance to assist
medical practitioners in deciding which cases have to be referred
to the coroner, and varying local arrangements have been
established. The consultation document sets out a list of
circumstances in which deaths should be referred – including those
where the death “may be a result of neglect or failure of
care” or where the death “may be related to a medical
procedure or treatment”. The definition is very wide and may
lead to more deaths being referred to coroners, rather than fewer,
as envisaged by the government.
Deaths not referred to the coroner are to be scrutinised by a
medical examiner (a new PCT post), who will carry out a
“proportionate review” of medical records, as well as considering
the circumstances leading to the death and any concerns raised by
the family. The consultation indicates that the examiner will also
have access to “existing clinical governance data”. The examiner
will either confirm the cause of death on the death certificate or
refer the death to the coroner.
What issues are raised in relation to
inquests?
There is discussion as to whether there should be a new list of
short form verdicts (to be renamed “determinations”), for example
adding a verdict currently used by some coroners “died from an
unforeseen complication of a necessary therapeutic procedure”.
Comments are also invited as to whether coroners returning
narrative determinations should also indicate the nearest
equivalent short form determination, which would help with
statistical analysis of deaths. It is anticipated that the Chief
Coroner may consider issuing guidance on the circumstances in which
narrative determinations should be used.
At present, narrative verdicts are widely used by coroners in
medical cases, and there has been confusion as to the extent to
which they can point out shortcomings in care without falling foul
of Rule 42 of the Coroners Rules, and whether they should deal with
matters not found to be causative of the death. This may present a
useful opportunity to clarify the position.
The consultation sets out more detail about how the new appeals
process will work, and the government’s intention that this will
not result in unnecessary satellite litigation which will delay
inquests. It is assumed that most appeals will be dealt with on
paper. Nevertheless, the government’s impact assessment assumes
that the new process will cost coroners and local authorities
£2.1m, plus £100,000 additional costs for the Legal Aid Scheme,
which funds very few inquests. Health organisations and insurers
should therefore anticipate that their own costs associated with
inquests will rise when the new law is implemented.
Does the consultation document contain any clues about
what will happen in the meantime?
Yes. The document sets out the government’s view on some
important policy issues, such as encouraging advance disclosure of
evidence. We are already seeing changes in the way in which many
coroners conduct inquests, and we expect this document to encourage
further change pending implementation of the new law.
Have your say
The consultation is open until 1 July 2010, and we intend to
respond to the key issues on behalf of our healthcare
clients.
We will be discussing the proposals at the next meeting of the
Nottingham Litigation and Inquest Forum on 26 May 2010. Please
contact Anna Wetton if you would like to attend.
You can also hear more about the proposals at our seminar in
Leeds on 14 April 2010. To find out more about the seminar or to
book a place, please click here.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.