Healthcare providers which have been involved in an inquest will be only too familiar with the provisions of Paragraph 7(1) of Schedule 5 to the Coroners and Justice Act 2009 which provides that the coroner is under a duty to make a Prevention of Future Deaths (PFD) Report where:
‘…(b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and
(c) in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances’
Ordering a PFD report is an important coronial power which, although not intended to be punitive, can have far-reaching effects on a healthcare provider’s reputation and resources. A report can be sent to any relevant public body, including the CQC, healthcare regulators, commissioning groups and the police.
Once issued, this very public order obliges the recipient to respond to the report in writing. The nature of a response is entirely a matter for the recipient. However, a failure to adequately address perceived failings can compound the negative reputational effect of a report.
Challenging a PFD ruling
The very reasonable desire to challenge a PFD ruling has been considered in a recent decision of the administrative court, the matter of R (Dr Siddiqi and Dr Paeprer-Rohricht) v Assistant Coroner for East London Admin Court CO/2892/2017 (28 September 2017).
The claimants, partners in a GP practice, made an application to judicially review the coroner’s decision to issue a PFD report following the death of one of their patients.
The PFD report identified inadequacies in the systems the surgery was operating to deal with patient summaries. The coroner did not conclude that those issues were causal in the patient’s death but was nevertheless concerned that the systems in the surgery might put lives at risk in the future.
Following the inquest, the claimants made representations to the assistant coroner that the failure identified (to note and act upon the deceased’s hospital discharge) was an error made by an individual locum GP and not indicative of a flawed system. The coroner conceded that the error was not systematic, but concluded that there was no power to reverse a decision made under Regulation 28 following the closure of an inquest.
The judicial review application was dismissed, finding that a coroner has no power to withdraw a PFD report once it has been made. The Court found that the appropriate measure to challenge a PFD report was through the right conferred by 7 (2) of schedule 5 CJA 2009, to make a written response.
Practical steps – How can providers avoid a negative PFD ruling?
1. Robust legal representation during an inquest will allow for representations to be made on the issue of PFD where a party believes the Coroner has got it wrong and no reasonable concern actually arises.
2. Preparation in advance of an inquest may allow for the provision of evidence to demonstrate that problems have been remediated, avoiding the need for a PFD report in the first place.
‘The point of a report is to enable a risk to be met. If the risk has gone, it is unnecessary to spend time reporting it.’
Jervis on Coroners (13th Ed) comments at paragraph 13-125
3. If a coroner has made an order under Regulation 28, a recipient should respond to the PFD report in writing. They have 56 days to do so.
- When the coroner’s findings are well founded, set out the remediation and insights gained from the incident. It is an excellent opportunity to demonstrate that the recipient is a reflective and responsive body to the deceased’s family, the coroner and the public at large.
- If the coroner has got it wrong, the response is an opportunity to provide the coroner with a true account to ‘set the record straight’. The Chief Coroner may publish responses. Where an order has been made publically it is fitting that any rebuttal be equally public.