Inquest and death certification update

Coroners & Justice Bill

The Coroners & Justice Bill was announced in the Queen's Speech in December 2008. The Bill was debated at the Second Reading on 26 January 2009. The House of Commons voted for it to be sent to a Public Bill Committee that will now scrutinize the Bill clause by clause.

Part 1 of the Bill ¹ is concerned with coroners, and is divided into seven chapters: death investigations; notification, certification and registration of deaths; treasure investigations; coroner areas and appointments; governance; further and supplemental provisions. Draft secondary legislation in the form of new Coroners rules and regulations are awaited. Thus a detailed overview is not provided at this stage. However, many aspects of the proposed reforms have been welcomed, including:

the creation of new posts of Chief Coroner and Deputy Chief Coroner, who must be High Court or Circuit Court judges;

Proposed statutory duty requiring medical practitioners to report deaths to a coroner

The majority of deaths are currently referred to coroners by doctors, although there is no statutory requirement for doctors to do so. There is a common law duty on all citizens to give information that may lead to the coroner holding an inquest, to establish the cause of death.

Guidance to doctors has also been issued by the General Medical Council:

‘You must co-operate fully with any formal inquiry into the treatment of a patient… You must disclose to anyone entitled to it any information relevant to an investigation into your own or a colleague's conduct, performance or health. You must assist the coroner… in an inquest or inquiry into a patient's death by offering all relevant information. You are entitled to remain silent only when your evidence may lead to criminal proceedings being taken against you.’

However, there is no statutory list of the particular types of death that should be referred to coroners, although many GPs and doctors working in NHS Trusts comply with guidance drawn up by their Trust and local coroners. When reviewing the previous draft Coroners Bill, first published in 2006, the Constitutional Affairs Select Committee recommended that the Government introduced a positive statutory duty for doctors to refer certain categories of death to coroners.

A consultation was undertaken in 2007. Responses came from those involved in the coroner service, voluntary groups who work with the bereaved, APIL, AvMA, registrars of deaths, medical practitioners from general practice and NHS Trusts, and individuals with experience of the coroner service. A number of those responding felt that the duty to report should be expanded to other public service personnel, such as nurses, midwives, police, fire service and ambulance personnel. Others disagreed, highlighting a concern that imposing reporting duties on other public bodies and their personnel could cause distress to bereaved families if funeral arrangements had to be delayed.

The Ministry of Justice has decided that only registered medical practitioners will have a duty to report relevant deaths to the coroner. ³ The cases or circumstances where deaths should be reported and the mechanisms for doing so will be dealt with in secondary legislation, to be drafted and subject to consultation after the Coroners & Justice Bill has received Royal Assent.

However, it is anticipated that the new medical examiners, working alongside senior coroners in their jurisdictions, will have an important role in ensuring that relevant deaths are not under-reported. The introduction of a statutory duty will not prevent deaths being reported to the coroner as they are at present by, for example, police officers or prison governors, nor will it prevent bereaved relatives from asking the coroner to investigate a death if they have suspicions about the circumstances.

Cremation Regulations 2008

The Cremation (England & Wales) Regulations 2008 came into effect on 1 January 2009. ⁴ They modernize and consolidate all previous regulations, replacing the Cremation Regulations 1930 as amended, which were widely regarded as old-fashioned and confusing.

Dame Janet Smith's Third Shipman Inquiry Report ⁵ made it clear that many of the death certificates and cremation forms completed by Shipman were wholly inaccurate. The Regulations are intended to close one such loophole. The 2008 Regulations impose a duty on the usual medical attendant to report when completing the cremation medical certificate (new Cremation Form 4):

The examination findings;

The 2008 Regulations allow family members applying for cremation to inspect the medical certificate and confirmatory medical certificate before a cremation takes place. ⁷ Family members applying for cremation will also be able to make representations to the medical referee if they have any concerns about unexpected symptoms or discrepancies in the case. ⁸ The 2008 Regulations are an interim measure, and are intended to precede long-term plans to ensure that all death certificates are scrutinized by a second doctor.

Amended Rule 43 Coroners Rules 1984, and new Rules 43A & 43B

Rule 43 of the Coroners Rules 1984 was amended with effect from 17 July 2008. ⁹ The intention was to give greater prominence to coroner reports to improve public health and safety. While most organizations previously responded to Rule 43 coroner reports, they were under no obligation to do so, and some did not. The amended rule introduced a new statutory duty for organizations to respond.

Another disadvantage of the old regime was that there was no unequivocal statutory power permitting coroners to share the report and the response with properly interested persons and other relevant organizations. Some coroners shared reports and others did not. Therefore, some families were unable to see how it was intended that lessons should be learned to prevent a death similar to the death of their family member, often stated as an important consolation for them.

In addition, information was not being collected centrally, in a form that was readily accessible. ¹⁰ So issues which were subject to reports in one coroner district, and which may have had relevance to other coroner districts, were not always identified and disseminated nationally. Potentially, important opportunities to save lives were being missed. Under the amended Rule 43, and the new Rules 43A and 43B: ¹¹

Coroners have a wider remit to make reports to prevent future deaths. The report does not have to confine itself to similar deaths. ¹² Instead, he or she may deal with ‘a concern that circumstances creating a risk of other deaths will occur or will continue to exist in the future…’; ¹³

Corporate manslaughter and coroners inquests

The main provisions of the Corporate Manslaughter & Corporate Homicide Act 2007 came into force on 6 April 2008, and may be relevant to certain inquests where issues of unlawful killing arise.

The 2007 Act is aimed at cases where management failures lie across an organization and it is the organization itself that may face prosecution. However, individuals are also potentially liable for gross negligence manslaughter and for health and safety offences. The 2007 Act does not change this, and the Ministry of Justice has indicated that prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

A detailed outline of the 2007 Act is beyond the scope of this paper. However, the essential elements of the offence are that:

the way in which a relevant organization ¹⁸ manages or organizes its activities ¹⁹ causes a person's death; ²⁰

Similarly s16(1)(a)(i) Coroners Act 1988 as amended by the 2007 Act now includes corporate manslaughter within the categories of mandatory adjournment, ²⁴ so that an inquest must be adjourned when a coroner is informed that any organization has been charged with such an offence.

However, if, following a criminal investigation, a decision not to prosecute has been taken by the Crown Prosecution Service, ²⁵ coroners may need to consider whether there is reasonable cause to suspect that a deceased person has come about their death as a result of a gross breach of duty implicating senior managers. If there is reasonable cause to suspect such circumstances, then this may require an appropriate coronial investigation.

In the healthcare setting this might arise, for example, where a death results from an infectious disease such as clostridia, and where there is reasonable cause to suspect that there may have been gross failures on the part of senior managers to heed expert medical advice regarding the steps required to control and eliminate an outbreak or to minimize further spread. ²⁶ Matters which may arise prior to the hearing include:

arguments about excluded categories of death. For example, deaths resulting from public policy decision-making by a public authority, ²⁷ deaths resulting from activities considered to be exclusively public functions, ²⁸ and deaths resulting from organizations carrying out emergency services; ²⁹

Bodycote HIP Ltd: flawed unlawful killing jury direction; guidance on the use of narrative verdicts

For an example of a flawed corporate manslaughter direction to an inquest jury in the context of two workplace deaths due to asphyxiation by argon gas (before the coming into force of the 2007 Act) see R v HM Coroner for Herefordshire ex parte Bodycote HIP Ltd. ³⁴ Allowing the employer's appeal against a verdict of unlawful killing, Blake J held that the coroner had failed to direct the jury's mind properly to the need for one individual at least to have had sufficient foresight and responsibility to have done something different from that which was in fact done. ³⁵ The jury's verdicts of unlawful killing were therefore quashed. Nevertheless since serious issues needed to be investigated, fresh inquests were directed into both deaths.

Blake J also observed that one possibility that might need to be explored at the future inquests was the use of a narrative verdict. Even if a properly directed jury could not or did not conclude that the evidence justified a finding of unlawful killing on a criminal standard, it might well conclude that it was necessary to recite particular circumstances of concern that caused the deaths in a narrative verdict, either as part of, or as an alternative to, a verdict of accidental death, which was the obvious short form alternative verdict to unlawful killing.

Blake J also observed that narrative verdicts might have a particular relevance in cases where a jury wanted to record particular breaches of duties, or particular failures to foresee risks, which should be recorded so that the relevant industry could be alerted, and so that all others concerned with the tragedy could learn lessons for the future.

The decision in Savage and coroners' inquests

In Savage v South Essex Partnership NHS Foundation Trust, ³⁶ the Claimant's mother committed suicide after absconding from the hospital where she had been detained under the Mental Health Act 1983.

Article 2(1) of the European Convention on Human Rights requires the State not only to refrain from the intentional and unlawful taking of life (the negative obligation) but also to take appropriate steps to safeguard the lives of those within its jurisdiction (the positive obligation). In addition, the State, usually through the medium of an inquest, must provide an effective investigation into the circumstances of a death where agents of the State have played, or appear to have played, a part. ³⁷

At the inquest into Mrs Savage's death, a jury determined that the absconding precautions were inadequate. Her daughter subsequently brought a claim for damages under sections 6, 7 and 8 of the Human Rights Act 1998 ³⁸ on the basis that her mother's right to life under Article 2 of the European Convention on Human Rights had been breached. At issue was whether the Trust had taken reasonable steps to prevent the risk of suicide, in particular, whether there had been a failure properly to assess the risk of absconding from the hospital.

At first instance Swift J determined a preliminary issue in the Trust's favour, namely that the Claimant would have to establish ‘gross negligence’ such as would be sufficient to sustain a charge of manslaughter to succeed on breach of Article 2. The decision was reversed on appeal, and upheld by the House of Lords.

Substantive opinions were given by two members of the Appellate Committee, Lord Rodger and Baroness Hale with which the other three members of the Committee, Lord Scott, Lord Walker and Lord Neuberger, agreed. ³⁹

Baroness Hale had little doubt that it was right in principle to apply the approach adopted in Osman ⁴⁰ and Keenan ⁴¹ to patients detained in hospital under the Mental Health Act, as it applies to persons detained under other powers in other institutions. She held that the trigger was a ‘real and immediate risk to life’ about which the authorities knew or ought to have known at the time, albeit such a trigger has ‘rarely been shown’. But once the duty was triggered, it was necessary to do ‘all that reasonably could have been expected… to prevent that risk’.

Lord Rodger also agreed that the principles which the European Court has developed for prisoners and administrative detainees must apply to patients who are detained under the Mental Health Act and that, as a public authority, the Trust was under a general obligation, by virtue of Article 2, to take precautions to prevent suicides among detained patients in its hospital. In particular, he held that Article 2 imposed on hospital authorities and their staff not only an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide, but also an operational duty to try to prevent a particular patient from committing suicide if they know, or ought to know, that there was a real and immediate risk of her doing so.

However, he also went on to express the duty in terms which did not appear to be limited to patients who had been detained under the MHA: ‘In my view, it is abundantly clear that, where there is a real and immediate risk of a patient committing suicide, Article 2 imposes an operational obligation on the medical authorities to do all that can reasonably be expected of them to prevent it’.

In the light of the decision in Savage, most inquests involving the suicide of patients detained under the MHA should now trigger an enhanced ‘Middleton’ ⁴² or ‘Article 2 inquiry’, as is currently the case with most prison and Police custody deaths. The duty will arise where it is arguable that there was a ‘real and immediate risk to life’, which the institution knew or ought to have known at the time, and that all that reasonably could have been expected to prevent that risk, was not done.

Further, given Lord Rodger's conclusion (to which the other members of the Appellate Committee agreed) as to the application of the positive obligation under Article 2 to all patients who presented a real and immediate risk of suicide, whether detained or not, it is arguable that the suicide of any patient under the care of the State should involve an enhanced inquiry, where there is reasonable cause to suspect a breach of the substantive Article 2 obligation.

Warren: the need for independent expert evidence in Article 2 inquests

In R v HM Assistant Deputy Coroner for Northamptonshire ex parte Warren & (1) GSL(UK) Ltd (2) Nestor Primecare Services Ltd (3) Dr Ahmed (4) Dr West (Interested Parties), ⁴³ the deceased prisoner committed suicide in prison. There was no dispute as to the applicability of Article 2 European Convention on Human Rights and the need for an enhanced inquiry.

It was apparent from the Prison Ombudsman's report that the prison GPs and forensic psychiatrist had been aware of new psychotic behaviour prior to the suicide. At a pre-inquest review, the Assistant Deputy Coroner decided to call the Prison Ombudsman's psychiatric nursing expert. The coroner refused to call the family's independent psychiatric expert, partly on the ground that the expert had considered in their report the standard of care which would have been provided to the deceased within an NHS mental health unit.

On appeal, while refusing to make an order requiring the coroner to call the family's expert, Foskett J nevertheless held that an inquest in that case without independent expert psychiatric & primary care evidence, in addition to expert nursing evidence, would not be Article 2 compliant.

Platts: Article 2 inquiry where deceased had recent contact with NHS, the police and the court service; whether ex-girlfriend was an interested person

In R v HM Coroner for South Yorkshire (Eastern District) ex parte Platts & Chief Constable of Yorkshire (Interested Party), ⁴⁴ the deceased killed himself after stepping into the road in front of a lorry. In the months before his death he had developed depression and mental health difficulties.

The documents before the coroner showed that the day before he died, the deceased had stabbed himself and had been admitted to an NHS hospital, where he had expressed a wish to die. He had become agitated and violent, the police had been called, and he was arrested prior to a proper psychiatric assessment. He was charged with a breach of the peace, and was detained in police custody overnight. He died shortly after his attendance at a Magistrates Court the following morning, when he was released after the CPS offered no evidence.

Both at court and at the police station the deceased had intimated that he wanted to die. The coroner took the view that there was nothing in the documentation to suggest that the State was in breach of any duty owed by it to him under Article 2 European Convention on Human Rights. He decided to limit the scope of the inquest to the road traffic aspects of the death.

He also declined to allow the deceased's ex-girlfriend to examine witnesses at the inquest, holding that she was not a properly interested person within the meaning of Rule 20(2)(h) Coroners Rules 1984, and that she was in fact a stranger to the inquest.

On appeal, Wilkie J reversed both decisions. He held that it was plainly wrong for the coroner to say that there was nothing at all in the documentation which gave rise to a possibly arguable case that the State in one or other of its manifestations was at fault in failing to address the deceased's mental condition. In particular, he had made repeated statements that he wanted to die, all of which were made within a matter of hours before he apparently caused a road accident in which he was killed.

The concerns raised by the evidence were such as would have caused any reasonable coroner to form the view that the threshold required for an Article 2 investigation had been crossed. The coroner's decision was therefore quashed and a declaration issued that the death required an Article 2 compliant investigation.

The coroner had also erred in failing to regard the deceased's ex-girlfriend as a properly interested person within the meaning of Rule 20(2)(h). Although the coroner had concluded that she was concerned to see whether or not the system had let the deceased down, he did not regard that as sufficient to allow her to participate in the inquest. While the court had to be slow to interfere with the exercise of the coroner's discretion, he had totally failed to engage with a number of issues arising from the evidence. That failure, together with his erroneous conclusion that she was a stranger to the inquest notwithstanding his acceptance that she was motivated by more than idle curiosity, meant that his decision was Wednesbury unreasonable.

Bicknell: need to hold inquest after cremation and multi-agency healthcare inquiries

In R v HM Coroner for Birmingham & Solihull ex parte Bicknell, ⁴⁵ the deceased, who had been suffering from mental health problems, had died soon after being admitted to a nursing home. Despite the deceased's daughter's concerns about his treatment, his death was certified by the attending GP as being due to pneumonia, it was not reported to the coroner, and a funeral and a cremation took place. After an investigation by the National Care Standards Commission, the owners voluntarily closed the home.

The deceased's daughter took up her concerns about the death with the coroner, and provided him with the report of a medical expert. The report was very critical of the medical records maintained during the stay at the home, and raised concerns about the increased dose of sedative medication the deceased had received, and the restrictive effect of the ‘bucket chair’ into which he had been placed.

The coroner concluded that, despite the expert's dissatisfaction with the records as a basis for providing a cause of death, there were no grounds for saying that the cause of death was unknown, and no reasonable cause to suspect that he had died an unnatural death. He held that he was not required to hold an inquest under s8 of the Coroners Act 1988.

McCombe J held that in the light of the expert's report and many other factors, the coroner should have decided that an inquest ought to be held and should have reported the facts to the Secretary of State under s15 Coroner's Act 1988. ⁴⁶ His decision to the contrary was Wednesbury unreasonable.

If the circumstances in Touche ⁴⁷ gave rise to a conclusion that an inquest ought to be held, then the instant case was an even clearer one. The expert had raised the distinct possibility that the death was caused or contributed to by the excessive doses of sedative drugs, coupled with the restrictive effect of the chair and the possible failure to give adequate antibiotic treatment. Those circumstances, together with the family's observations, clearly gave rise to ‘reasonable cause to suspect’ that the deceased had died an unnatural death within the meaning of s8 of the Coroners Act 1988.

When one added to those factors the more general concerns raised by the National Care Standards Commission in relation to all the residents of the home, it became a compelling conclusion that there was a reasonable cause to suspect an unnatural death. Although the death had occurred more than five years before the instant proceedings, and there would be difficulties in assembling additional evidence at an inquest, ⁴⁸ the coroner had stated that such difficulties were irrelevant to the decision as to whether an inquest should be held, and there was no reason to go behind the judgment of the coroner on that issue.

Ex parte Catherine Smith: whether references to ‘serious failures’ in narrative verdicts impugned Rule 42 Coroners Rules 1984; disclosure; legal aid

In R v HM Assistant Deputy Coroner for Oxfordshire ex parte Catherine Smith & the Secretary of State for Defence (Interested Party), ⁴⁹ a number of issues arose in the context of an inquest into the death of a serviceman in Kuwait, who had died of hyperthermia. In seeking to quash the verdict the family raised a number of issues including: the failure to deem the inquest Article 2 compliant; inadequate disclosure (neither the family nor the coroner received a full copy of the Army's Board of Inquiry report); the failure to empanel a jury and funding. The family's request for legal aid was refused.

The MOD cross-appealed that the coroner's narrative verdict had impugned Rule 42(b) Coroners Rules, which stated that ‘no verdict shall be framed in such a way so as to appear to determine … any question of civil liability…’. The coroner had referred in his narrative verdict to a ‘serious failure to recognize and take appropriate steps to address the difficulty that the deceased had had in adjusting to the climate’.

In a wide-ranging judgment Collins J held that:

the Article 2 investigative duty arose because the circumstances of the death gave rise to concerns that there may have been a failure by the Army to provide an adequate system to protect the deceased's life;

He also observed that in the light of the obligations under Article 2 it may be that Rule 40 Coroners Rules, which prohibits an address by any party on the facts, needed to be amended or removed to render the inquiry Article 2 compliant. But in any event Jamieson required the coroner and jury to fully, fairly and fearlessly investigate all facts touching upon criminal and civil liability.