Under the microscope: a note on inquests and NHS Trusts

Under the microscope: a note on inquests and NHS Trusts

14/05/2013

Simon Lindsay

Simon Lindsay

Partner

It must be disconcerting for anyone working in the NHS to read of the nation’s adoration of the service, and then see how NHS-bating has become a national sport. Hidden away from the limelight of the Response to the Francis report is a small example of the relentless scrutiny faced by healthcare practitioners in the form of the Court of Appeal judgment in R (Sreedharan) v Coroner for Greater Manchester [2013] EWCA Civ 181. There are a number of important lessons in this case, not least that the scope and intensity of an inquest involving healthcare issues can still be an intimidating arena for Trusts and their staff.

Dr Sreedharan prescribed Heminevrin to his patient Mr Donohue. Heminevrin is a drug used to relieve the symptoms of alcohol withdrawal, but it is highly toxic if taken in combination with it. This prescription was given without checking Mr Donohue’s recent history or seeing him. He took about 50 tablets, when he had been drinking and he consequently died.

The issue for the Court of Appeal was whether the scope of the inquest as conducted was lawful. More graphically, the complaint made by Dr Sreedharan, was it became a criminal trial for manslaughter with him in the dock. Specifically, a long list of concerns was presented to the Court of Appeal to show that the Coroner had gone too far and investigated matters that were irrelevant or designed to undermine Dr Sreedharan. Among other things, the inquest explored an unrelated PCT performance review postdating the incident, whether Dr Sreedharan returned medical records to the PCT after the death and a referral to the GMC. The Court of Appeal found that while some of the matters explored were of peripheral relevance to the Inquest, most of them did relate directly or indirectly to the death.

The Court gave a helpful summary of the current law on the scope of inquests. It recognised that most Coroners now see little difference between an Article 2 Inquest and a traditional inquest, save in terms of verdict and findings. In other words, a Coroner has to tread a path between an obligation to uncover all the facts and expose discreditable conduct, while not infringing the requirement to give a verdict which explains how the deceased died nor directing proceedings other than for that purpose.

What this ruling emphasises is that the scope of an Inquest can encompass an investigation of matters which may turn out to be irrelevant, but which should be looked into, just in case some relevant detail emerges either for the purpose of establishing the circumstances around the death or to enable the Coroner to make an announcement under Rule 43. Anecdotally, this is common across the country, whereby Coroners are prepared to look into matters more thoroughly and more aggressively even where it is not entirely clear that they relate to the cause of death. This is not changing the boundaries of an inquiry, it is merely taking advantage of the inherent flexibility in them. It is also consistent with a current trend to scrutinise healthcare performance more closely.

It also means that Trusts will need to be prepared to release more information than otherwise would have been expected. More staff will be required to attend inquests, production of SI reports will become the norm rather than the exception and performance data will become a more common feature at inquests. This is entirely consistent with the duty of candour in the current standard contract terms and the requirements of the NPSA guidance in Being Open (23.11.2011). The Government’s first response to the Francis Report emphasised that mortality data must be accurate and patients should be able to trust what they are told as a fair and honest account. It is likely that once transposed into an inquest arena, the expectation will be that the Trust should demonstrate that it is being open and transparent.

There is a view that if something goes wrong, it is usually somebody’s fault and unless the mistake is paid for by the person responsible it is more likely to be repeated. At the same time, post-incident investigations undertaken within the NHS are usually expected to adopt a no-blame approach. The inquest process still seems to pay lip-service to both ends of the spectrum. A stock phrase at the outset of an inquest is that ‘no-one is on trial, least of all the deceased’. At the same time it is becoming common for inquests involving healthcare staff to be a trial by ordeal in all but verdict and sentence. And yet there is little that can be done to protect such staff or the Trust from gratuitous intimidation, particularly given the cost of a challenge to an inquest and the likelihood that, even if successfully challenged, it will only mean the inquest will be repeated.

If inquests are inappropriately undertaken and a legal challenge is not feasible, there is nothing to stop a Trust raising a concern with a Coroner or perhaps with a Senior Coroner.

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