Disclosure following patient deaths has become a “hot topic” in recent times and, particularly, since the events in Mid Staffordshire and Morecambe Bay. There are more inquest hearings for health and care providers than ever before. Commissioners and regulators are being drawn into inquests where not previously the case. Proper preparation is vital.
What’s it all about?
Traditionally, coroners requested statements and reports from care providers and sometimes the notes, records and investigation reports as well. In fact, the power of the coroner was very limited. While, as a matter of good practice, care providers almost certainly complied with this request (as a matter of public policy), the actual and legal obligations were, at best, obscure.
The landscape has now changed so much in the last few months that not disclosing anything requested by a coroner is now untenable – irrespective of the “correct” legal position. Indeed, perhaps we should be considering a regime of “voluntary disclosure” to coroners more akin to preparing lists of documents in a civil trial or disclosure in criminal proceedings?
The inevitable consequence of this will be that many inquests will become a “trial” (in all but name) of the care provided. The public scrutiny of issues is becoming much more intense. You will need to prepare very carefully and have policies and procedures in place to deal with evidence collection. Witnesses will need a lot of support. This has the inevitable cost consequences in terms of both finance and manpower. In difficult cases you will need expert inquest lawyers dedicated to supporting you and your staff to ensure you give the proper assistance to the coroner and avoid censure or (at worst) falling foul of some new criminal offences.
Proper management of inquests may no longer be a part time job – they can have a significant impact on your organisation and present a substantial reputational risk.
The Background – a duty of candour
We are all well aware of the wide ranging ramifications of Robert Francis QC’s report and his particular recommendation regarding full disclosure of all relevant information to the coroner. While the Government has, so far, stopped short of imposing a statutory duty of candour on healthcare professionals, there is a contractual duty of candour on NHS organisations.
Interestingly, the contractual duty is public sector specific and does not automatically have an impact or effect on the private sector. That is, unless a private sector provider enters into a contractual agreement with an NHS body, using an NHS Standard Contract, to provide public sector services. NHS bodies are required to commission clinical services using the NHS Standard Contract so, it is likely that independent health care providers will be impacted by this duty – or at least they should be.
Of course, in the “court of public opinion” private providers would be open to significant censure if they acted otherwise and future NHS or other public authority contracts would surely be at risk (at best).
It is now fair to say it will be extremely difficult for health and care providers to withhold anything documented from disclosure into the public domain, subject to the requirements of the Data Protection Act 1998 and Freedom of Information Act 2000 (although the grounds for disclosure under these Acts are now being widened in the public interest – so it will be difficult to rely on that in most cases).
This should be borne in mind when anything is committed to record. This is not to say, of course, that less should be recorded. Full documentation is more important than it has ever been. However, the way in which something is recorded and how it is managed should be approached with future disclosure in mind. In particular, healthcare providers should carefully consider how they will approach taking and recording evidence from staff as part of incident investigations, without compromising on the thoroughness of the investigations.
The Health Select Committee report on the principal recommendations of Robert Francis QC following the public inquiry into the Mid Staffordshire NHS Foundation Trust was prepared on 18 September 2013. The report makes it clear that legal accountability is important but it is even more important that legal advice based on defensive considerations is not allowed to impede the proper relationship between clinical professionals and patients. In addition, it is stated that:
“defensive and overly legalistic considerations of the best interests of Trusts should not be allowed to override the duty to be open and transparent about adverse incidents. It is particularly important that NHS bodies provide full and candid explanations to relatives bereaved as a result of an adverse incident”.
So, what should you be doing?
How should the changing landscape affect your approach to preparing for an inquest?
Once you are aware a patient’s death will be investigated by the coroner you should take all reasonably practicable steps to explore what information your organisation holds that may possibly be of relevance to the care of the deceased patient and the circumstances leading up to his or her death.
The process of preparing the evidence and deciding what should be disclosed to the Coroner today is almost akin to the standards used in civil negligence claims or criminal proceedings. When interpreted into the inquest context, this essentially means anything that might assist the coroner, the family or other interested parties who have complaints or concerns or even, as is becoming increasingly common, any “position” or “argument” advanced by the family. Ultimately, it is for the coroner to decide what is relevant to his or her investigation and whether he or she will rely on the documents disclosed. However, disclosure to the coroner is effectively disclosure into the public domain as he will almost certainly share disclosure with the other interested persons and, indeed, if he considers the documentation relevant to his inquiry then he is obliged to do so.
While it is important to bear in mind that the strict purpose of an inquest is not to apportion fault or blame and it certainly should not be a trial, inquests have become increasingly contentious and evidence such as reviews of the care and internal reports (the findings of which may not necessarily be accepted by your organisation) could be used by others to question, criticise and cast doubt on the quality of care provided and influence the conclusions drawn by the coroner.
Certainly, if the press are present, such criticism makes for a good headline.
Where you find yourself in a position of being required to disclose such material to the coroner, you need to consider your approach carefully. While it is absolutely right that care providers are subject to transparency, it is equally right that such transparency should be fair and in context.
For example, if a review of the care was conducted and your organisation does not accept the findings, or some of the criticism, you may not wish for them to be accepted into evidence undisputed and further action will need to be taken. Careful wording will need to accompany the disclosure to the coroner to make your organisation’s position clear. The coroner may decide not to rely or disclose the report (unlikely), or it may be necessary to prepare additional evidence to put the evidence in context – or even to dispute it, in extreme cases.
It may also be necessary to ask the coroner to call additional senior management witnesses from your organisation to counter the evidence, or put it in context. In difficult (but thankfully still rare) cases you might want to consider seeking evidence from independent expert witness and request that the coroner adds them to the witness list.
Of course, there will be cost consequences associated with the careful management required and the approach to take at each inquest needs to be considered in the context of the issues in that particular case, and other similar cases, and the risk to your organisation. Increasingly it is becoming a full time job.
Coronial powers to compel evidence
Coroners now have the power, under the Coroners and Justice Act 2009 (Schedule 5), to compel a person to produce any documents (or any other thing) in the custody or under the control of that person which relates to a matter relevant to the inquest within such a period as the coroner considers reasonable. A person can also be compelled to provide evidence about any matter specified in a notice issued by the coroner.
Failure to comply with a summons (without reasonable excuse) can result in a £1,000 fine. Such a fine can be imposed on any individual who does not comply with the notice.
Now that there is pressure on coroners to complete investigations within six months of the date of referral of the matter to them, wherever possible, coroners are increasingly using the above powers to enforce deadlines for the provision of witness statements. Timeframes for compliance vary as it is dependent on what the particular coroner considers to be reasonable, but health and care providers should be aware that coroners have the power to impose such deadlines as set out in a notice and a fine if the notice is not complied with.
If such a notice is issued against your employees and it is considered that the subject of the notice will not be able to comply or it is unreasonable to do so in the circumstances, this can be put to the coroner, but whether or not the notice should subsequently be revoked or varied is a matter for the coroner to determine, taking into account the public interest in the information in question being obtained and the likely importance of that information. Much will depend on the quality of the relationship between your organisation and the local coroner.
Could you end up in the clink? Criminal offences when obstructing full, open and honest disclosure
There are now a number of new criminal offences in relation to disclosure, which can result in a fine of up to £1000, 51 weeks imprisonment or both.
It is an offence for a person to:
- Intend to distort or otherwise alter any evidence, document or other thing that is given, produced or provided for the purposes of a coronial investigation.
- Prevent any evidence, document or other thing from being given, produced or provided for the purposes of a coronial investigation, or to do anything that the person knows or believes is likely to have that effect.
- Intentionally suppress or conceal a document that is, and that the person knows or believes to be, a relevant document, or to intentionally alter or destroy such a document.
A document is relevant if it is likely that the coroner would wish to be provided with it, if aware of its existence.
It is for this reason important that proper and reasonable investigations are made within your organisation to find out what information is held. All staff need to be aware of the obligation to assist. But how do you determine if a document might be relevant? One possible way out of that dilemma might be to list the documents and information you hold, send it to the coroner and then he can determine what he would like to see and from whom he might like to hear evidence.
That might be the safest way to avoid censure and any potential offence.
Disclosure from the coroner
The legal position in relation to disclosure from the coroner has also been strengthened. Coroners are now obliged to provide disclosure of a copy of the following documents (or make available for inspection) to an interested person as soon as is reasonably practicable after it is requested:
- Any post mortem examination report.
- Any other report provided to the coroner during the course of the investigation.
- Where available, the recording of any inquest held in public.
- Any other document which the coroner considers relevant to the inquest.
This is subject to there being a statutory or legal prohibition on disclosure, the consent of any author or copyright owner not being reasonable obtainable, the request being unreasonable, the document relating to contemplated or commenced criminal proceedings, or if the coroner considers the document irrelevant to the investigation. However, speedy disclosure from the coroner should become the norm and you are entitled to expect it.
The coroner may disclose the document in electronic format, redacted or simply make the document available for inspection at a particular time and place. The Chief Coroner is encouraging the use of electronic disclosure. The coroner may not charge a fee for any document disclosed to an interested person before or during the inquest (but can charge after an inquest has taken place).