The Litigation Series – Week 3 – Medical Negligence Inquests- What Does A Bereaved Family Need To Know?

Dealing with the loss of a family member as a result of substandard care can be devastating. If you have lost a loved one because of suspected medical negligence it is possible that an inquest could be opened to investigate how they died. Our medical negligence department has extensive experience in supporting bereaved families and representing their interests in Coronial proceedings, as well as in any associated civil claim.

What is an inquest?

An Inquest is an investigation overseen by a Coroner, into how someone has died. An inquest will only be held where the person’s death was either sudden and the cause is unknown, the death was unnatural and/or violent, or they were in state custody at the time. Therefore, not every death that occurs whilst the person is receiving medical treatment will be subject to a Coroner’s investigation, only where it falls into one of the above categories.

What is the purpose of an inquest?

The purpose of an inquest is to find the answer to the following four questions:

1. The identity of the deceased
2. Where they died
3. When they died
4. How they died

The inquest process can often form a key part in a family’s pursuit for answers and accountability, although it can often prove to be a stressful and daunting process for unrepresented families.

A Coroner’s investigation is very different to a civil liability investigation and the Coroner is not looking to attribute blame on the parties involved, but simply to establish the facts.

Although non-adversarial, the inquest is a crucial exercise in which families and their legal representatives are able to obtain disclosure, hear key evidence, have the opportunity to put questions to those involved in their loved one’s care and uncover some answers as to what happened. Moreover, where failings and/or substandard care is identified, the Coroner has the power to make recommendations to the relevant institutions, with a view to ensuring lessons are learned and similar deaths are prevented in the future.

Although the purpose of an inquest is not to apportion blame to an individual or organisation such as a Hospital for the death, inquests can be the start of civil medical negligence proceedings.

What happens before an inquest hearing?

There are several issues that should be decided upon before an Inquest hearing takes place, regardless of the length of the hearing itself.

Interested Persons

Where a Coroner opens an investigation into an individual’s death, they will liaise with that person’s family (or their instructed solicitors), and any other parties that were sufficiently involved in the person’s care and death. These bodies/individuals, including the family, will usually be granted “Interested Person” (IP) status. This may include the relevant NHS trust, care staff, individual clinicians and paramedics. IPs are given the opportunity to provide and receive the relevant disclosure in proceedings and make submissions, where invited by the Coroner.

Legal representatives acting on behalf of the IPs will usually draft written submissions on the key issues that should determined before the inquest itself and the issues to be addressed.

Scope

It will be the Coroner’s decision as to how broad and deep an investigation will be and this is referred to as the ‘scope’ of the inquest. The Coroner must ensure that the relevant facts and circumstances surrounding the death are fairly investigated. The legal representatives on behalf of the family and other IP’s are able to make submissions on what issues they consider to fall within the relevant scope, but it is for the Coroner to make a final decision.

Jury

In the majority of cases, a Coroner will hear the inquest alone. However, there are some circumstances in which a Coroner may or must sit with a jury. For example, where a death occurs in policy custody, the Coroner must sit with a jury. The Coroner has a general discretion to sit with a jury where they believe there is “sufficient” reason to do so. An example of a case where a jury could be called, but is not required, would be a death in a mental health setting. Legal representatives would be able to make submissions either for or against a jury and the Coroner will make the final decision.

Witnesses and Disclosure

In order to answer the above 4 questions, evidence must be gathered. Disclosure for the purposes of inquests can include (but is not limited to): medical records, investigation reports, police and ambulance reports/records, CCTV or body worn footage, scene photographs, and policy and protocol documents. The gathering of this this disclosure is crucial as it will begin to set out what happened. Additionally, it assists with who and how many witnesses should provide statements and/or appear in person to be questioned at the Inquest. My colleague, Emma, will go into more detail about this in part 2 of this blog.

Pre-Inquest Review hearings

The Coroner will usually list at least one pre-inquest review hearing before the inquest proper. These are administrative hearings in which the Coroner will not hear factual evidence but will address any procedural issues for the inquest itself. The legal representatives of the IPs will have the opportunity to make oral submissions on these issues, which can include:

• The scope of the inquest.

• Who should be called to give witness evidence.

• Whether independent expert evidence is required to help the coroner reach conclusions about how the deceased died and, if so, the specialisms required.

• Whether a jury is required for the inquest.

• The length of the inquest.

• Whether Article 2 of the Human Rights Act is engaged.

Article 2

Article 2 refers to The European Convention on Human Rights, which is incorporated in domestic law through the Human Rights Act 1998 (HRA). Article 2 of the HRA imposes positive obligations on the state to protect its citizens’ fundamental right to life.

Whether Article 2 is engaged or not will likely affect the scope of the inquest. An Article 2 inquest (sometimes known as a ‘Middleton’ inquest) allows the Coroner to investigate someone’s death in somewhat more detail than is allowed in a ‘Jamieson’ inquest (the term for an inquest where Article 2 is not engaged). In an Article 2 inquest, the remit of the investigation is to determine not only the four questions as listed above, but also in what circumstances the death occurred.

Article 2 can be engaged for the purpose of an inquest where the state or its bodies, such as care homes or hospitals, are involved in an individual’s care and subsequent death. However, the Coroner must also determine that, either the person was in state detention at the time of their death, or that there was a failure to adequately protect against a real and immediate risk to life which ought to be known about.

It is important to note however, that even where the Coroner deems that Article 2 is not engaged, a full and complete investigation will still take place into the death.

Other than widening the scope of the investigation, Article 2 can also be important for funding options, as outlined below.

What funding options are available for representation at the inquest?

Funding legal costs can often present a barrier to families who are looking to instruct a solicitor to represent them at an inquest. We do not believe that this should be the case, where we also consider that there are good prospects of a medical negligence claim succeeding, we can agree to work on a ‘no win, no fee’ basis.

Alternatively, it may be possible to obtain public funding to meet the costs of legal representation. Following a reform to the funding system on 12 January 2021, where Article 2 is arguably engaged, it is now possible to obtain non-means tested Legal Help and Exceptional Case Funding for bereaved families.

This funding can meet the full costs of your legal representation at the inquest and, where we consider this may be a viable option, we can work with you to make the application on your behalf.

What type of medical negligence inquests can Hodge Jones & Allen help with?

Below is a brief overview of some of the cases in which we have represented bereaved families:

• The inquest into the death of a 33-year-old man with Downs’s syndrome, who died following extreme constipation and faecal impaction after Care Home staff failed to properly monitor his diet and gross failings on the part of Hospital staff who did not respond appropriately to his deteriorating condition.

• The inquest into the death of a new-born baby who suffered a hypoxic brain injury due to umbilical cord occlusion, which the Coroner found could have been avoided had a caesarean section been performed at an earlier stage.

• The Coroner found neglect on the part of hospital staff contributed to the death of a man whose aneurysm went untreated at Manchester hospital for eight years.

• The inquest into the self-inflicted death of a 54-year-old father with a history of mental health issues, who died whilst on leave from inpatient care. The Coroner identified numerous failings in his care provided by the Mental Health Trust.

In any instance where there is concern that a loved one has died following substandard care, our medical negligence experts are happy to discuss this and investigate whether they can help in representing the family at the inquest. Our team has extensive experience in representing bereaved families in inquests into deaths which have occurred in varied circumstances and across a number of health care settings.  For a free initial consultation with one of our medical negligence team please call 0330 822 3451 or request a call back online.

Part 2 in our blog series detailing the inquest process and how it works can be found here.