Reflections on Navigating Inquests with Confidence: A Practical Workshop for Healthcare Leaders

Our Inquest Workshop held last month brought together experienced leaders and practitioners from across Independent and NHS Health and Care services, a Senior Coroner and our specialists.

What followed was a rich exchange of views on the issues that can arise during the inquest process and expert opinions on how to successfully navigate through them.

Delegates heard presentations on key topics such as the impact of PSIRF, a Senior Coroner’s insights, an analysis of patterns in Prevention of Future Death reports, the law around Corporate Manslaughter, the potential impacts of Hillsborough Law and the impact of inquests on the workforce. A number of panel and networking sessions took place throughout the day and there was a Mock Inquest to demonstrate the practicalities of giving evidence at inquests and the twists and turns that are often associated with them.

Impacts on the organisation

We heard during our workshop that the impact of an inquest on an organisation is, more often than not, considerable. Identification and production of documentation, an organisation’s internal investigation, preparation for and attendance at hearings and addressing the consequences of an outcome can all be arduous, exacting a heavy toll in terms of resources, finance and, of course, professional and organisational reputation.

We also heard that although Prevention of Future Death reports are not intended to be punitive, they often feel that way, with a reputational domino effect which can be disproportionate and damaging. No-one would dispute the need to make sure incidents are not repeated, nor the reassurance that improvements give to family members and other patients but a PFD report will only highlight what has not been learned and ignores changes which may have been implemented and are of greater value to the public. Obviously, this perspective is not in line with coronial law but it perhaps does raise questions as to proportionality of the content of some PFD reports. Do they serve the wider public interest; is there is an answer to the nature of such Coronial ‘concerns’ being in essence individual subjective opinions. Could the current system be improved on? The reputational impact of such reports can be profound for providers and whilst the focus on prioritising public interest over institutional liability is a righteous one, it seems that further work remains to be done to truly align the intention behind these reports and the public need for transparency, with the knock-on effect they can have.

Organisations are also often having to address parallel investigations. The use of a PSII within a Coroner’s court can be of limited assistance requiring effectively two investigations – one for inquest and one to meet the NHS England requirements of the Patient Safety Incident Response Framework. This can often be an internal resourcing issue for organisations with some misunderstanding as to the purpose of a PSII and the scope of the investigation process it invokes. Alongside this type of ‘parallel’ investigation also run other possible investigations, potentially by the police, regulatory bodies and the Health and Safety Executive. Although investigations for Corporate Manslaughter and similar offences are rare, they are increasing in prevalence. How this manifests, especially in light of the Hillsborough Bill of course remains to be seen, but the potential prospect of increased volume of inquests that reach the Article 2 threshold, the elevated degree of adversarial approach at hearings and significant statutory offences at play certainly give food for thought. 

Impacts on personnel

It was a common and accepted view at our Workshop, that whilst an inquest is not a trial and ‘blame’ is not at issue, for those involved it can certainly feel like an ordeal and this feeling has increased in recent times. The coronial process will likely always be stressful for those having to attend to give evidence in whatever capacity. The feeling that inquests are becoming more adversarial and ‘blame’ focussed is a concerning one. This raises questions as to whether inquest hearings are indeed morphing from an inquisitorial process into a more adversarial ‘blame’ oriented legal platform, one which teeters on the edge of crossing that line into Inquiries or negligence trials. It is often easy to feel that Coroners are under pressure to be less rigorous in keeping to their statutory remit. 

For personnel who attend inquest hearings to give factual evidence a heightened adversarial process will obviously make the process harder in a many ways, not least in the way it an affect self-esteem, morale or mental health. In an environment where a lot of health and care witnesses are not registered clinicians and where recruitment is challenging, the impact on service delivery can be difficult to manage.

Equally important to all involved in our discussion was recognition of scenarios when employee and organisational perspectives may conflict. In that context thought should always be given as to whether an employee should be afforded IP status in their own right and for their own protection. In discussing this, delegates noted that it is sometimes a matter of degree or the subject matter to which a perceptual ‘conflict’ relates that can drive decision making on legal representation and in some instances this is a difficult decision to make by an organisation.

Even when a conflict of whatever nature is not at issue, it is fair to say that staff can still feel a pressure to present evidence that serves both the requirements of the inquest and the perceived interests of the employer – thus feeling the pressure at both ends from both court and employer.

The impact this all has on the workforce cannot therefore be underestimated. Recognising this and supporting employees with the process is key.

Coronial Expectations 

It is plain that Coroners look favourably on well-prepared and candid witnesses. A full and frank explanation of any issues that arose during a care pathway remains the best way to mitigate against any Coronial wrath.

The shift away from Root Cause Analysis towards a Patient Safety Incident Framework has left Coroners in a position where they are not now always getting the same level of specific introspection on deaths at an organisational level that they had become used to and thus organisations who do not have a ‘dual’ approach to investigation and inquests are more likely to be left with a Prevention of Death report. Although resource heavy, investigations along these lines can mitigate heavily against adverse results/PFD report. 

It is of note that demonstrating that any consequential learning has already been implemented is the only effective way to avoid Prevention of Future Death reports. This highlights the need for organisations to ensure that investigations (PSII and Inquest) take place early following an incident and that lessons learnt have been well considered and implemented before inquest. This of course can be challenging as a complex inquest may drill in to the facts and circumstances surrounding an incident possibly over multiple days and weeks of detailed evidence. This luxury of time and resource may be one that an organisation does not have and thus it is not unusual for additional matters to be identified during the course of an inquest hearing. Providers try to give ‘reassurance’ in terms of actions to be taken but again if not in actuality implemented the decision to issue a PFD report is Coroner specific and may even be dependent on that Coroner’s experience with an organisation previously.

The takeaway here I suggest is to use as much resource and time that an organisation has early on in the process just following the incident to establish facts via records and pertinent interviews and then to explore in detail lessons to be learnt (regardless of their relationship to the death in question). Although this may appear onerous and will require top heavy resourcing immediately following an incident, this will mitigate against what could be a far more resource heavy commitment being forced upon you following fall out from a PFD report, Neglect Rider and reputational damage.  

The future 

The advent of “Hillsborough Law” may have significant impact on the framework surrounding the coronial process and what will be required from organisations.  

Once law, the Hillsborough Law (Public Accountability Bill) would establish both a proactive duty to disclose relevant acts or information to the Coroner, and a reactive duty to do so. It will require drawing attention to details of particular significance and the provision of a position statement on relevant matters. The aim of the Bill is clear relative to the duty of candour; it provides teeth to counter the concept of organisational cover ups and institutional defensiveness. 

In and of itself the Bill is to be admired, but at what cost? With proposed provision of position statements within an inquisitorial process (especially if relating to causation or breach of duty), which can impact heavily on civil claims, regulatory scrutiny and reputation there would seem to be a real prospect that the revered Inquest process as we know and dating back to medieval times is hi-jacked to another purpose entirely.

The concept of a ‘levelling up’ is also an interesting one and as discussed within our workshop one that seems unlikely to have the desired effect of making the inquest process more streamlined and promoting less organisational legal representation. In fact I would suggest that this will have the opposite effect and will add overall to the picture of a coronial process that is no longer inquisitorial and which has crossed the floor into the domain of fault, blame and adversarial proceedings. 

With criminal offences created for failure to comply with such duty of candour, early investigation of deaths and identification of issues at a senior level will be an essential practice for organisations seeking to fall on the right side of compliance.

To some this will simply enshrine the practices they already have. To others it will require a more fundamental change in approach. At the end of the day, the current direction of travel blurs the boundaries between an adversarial fact finding process and an adversarial fault related process. 

Conclusions 

No matter whether your organisation provides independent health and social care or treatment as an NHS Trust, the pressures and impacts of the coronial process on organisations and their staff can clearly be significant. It would seem that those pressures can only be increased with the tone and direction of travel being an increasingly adversarial arena.

The need to identify potential issues early and fully prepare for and engage with the inquest process is essential.

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