Recent legislation provides that a family member can receive free legal aid or advice at an inquest where it is in the public interest. Given the recent publicity regarding hospital deaths, this provision could become increasingly relevant.

Under the Courts and Civil Law (Miscellaneous Provisions) Act 2013, a family member can apply to the coroner to submit a request to the Legal Aid Board for legal aid or legal advice in certain circumstances. This application must be made before the beginning of the inquest, unless the coroner permits otherwise.

The coroner can make a request if the continuance or recurrence of the circumstances of death would be prejudicial to the health or safety of the public. This could arguably apply to a death due to a systems failure in a hospital. There must also be significant public interest in granting legal aid or advice. The act also provides for a request for legal aid for next of kin if the death occurred while the deceased was held under state supervision, – for example, if the deceased was at the time of death or immediately before death:

  • in custody in a prison;
  • in service custody;
  • involuntarily detained under the Mental Health Act 2001;
  • detained under the Criminal Law (Insanity) Act 2006;
  • in custody in a remand centre under the Children Act 2001 or in a children detention school; or
  • a child in care.

If legal aid or legal advice is granted by the Legal Aid Board, no further requests can be made by another family member.

If a family member is not granted legal aid at an inquest, he or she could seek to recoup the costs of legal representation in subsequent proceedings. In Courtney v Our Lady's Hospital Crumlin ([2011] 2 IRLM 328) the plaintiff was allowed to recover the costs of legal representation at the inquest of the death of her daughter. The court held that she was a witness of central importance in the inquest. Her choice to be legally represented at the inquest was reasonable because the explanations about her daughter's death were unsatisfactory and potentially in dispute. The costs of legal representation were recoverable under the Civil Liability Act 1961. The court noted that there may be cases where the facts regarding the circumstances of death were fully disclosed before the inquest and not disputed. In such a case, legal representation for the next of kin would be unnecessary.

It remains to be seen whether the Legal Aid Board could recover the costs of providing legal representation at an inquest where damages are awarded in subsequent proceedings.

For further information please contact Rebecca Ryan at Matheson by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (rebecca.ryan@matheson.com). The Matheson website can be accessed at www.matheson.com.