3rd November 2017
Nick Fairweather looks at the Conclusions that might be pursued at Inquests by families who have lost loved ones due to substandard medical treatment.
Inquests and Coronial law have a long and rich history but are now covered by the Coroners and Justice Act 2009. A Coroner has a duty to investigate a death within their jurisdictional area if it occurred in custody or state detention, where the cause of the death is unknown or where the Deceased appears to have died a violent or unnatural death
The 2009 Act replaced ‘Verdicts’ with ‘Conclusions’ but the approach beyond this remains the same.
- At the start of any Inquest, the Coroner will explain that the Inquest has to answer 4 questions. The first 3 of these are usually straightforward, namely (1) Who was the Deceased? (2) When did he die? and (3) Where did he die?
- The remaining question is (4) How did the Deceased die? In most cases ‘how’ means ‘By what means?’. When Article 2 of the European Convention of Human Rights applies, however, ‘how’ is more widely interpreted to mean ‘In what circumstances did the Deceased come by his or her death?’ It is in answering the ‘how’ question that a Coroner or Jury has to reach a Conclusion about the death.
- A Conclusion can be ‘Short-form’ or ‘Narrative’ or a combination of both. Short-form Conclusions include:- Accident or Misadventure; Alcohol / Drug Related; Industrial Disease; Lawful/Unlawful Killing; Natural Causes; Open; Road Traffic Collision; Still Birth; and Suicide.
- Lawful/Unlawful Killing and Suicide have to be proved beyond all reasonable doubt. All other Conclusions have to be established on the balance of probabilities.
- ‘Accident’ and ‘Misadventure’ are similar although the former involves situations beyond human control whereas the latter covers some deliberate human act which unexpectedly leads to death.
- Unlawful Killing includes Manslaughter by Gross Negligence.
- Natural Causes covers situations where, initially, it was thought that the Deceased’s death may have been ‘unnatural’ but, upon full inquiry, at the end of the Inquest, the reason for the death was found to be some natural disease or condition. If there was medical intervention, before death, and this caused the death, the correct Conclusion will be Misadventure. If the Deceased would have died in any event then the correct Conclusion will be Natural Causes.
- An Open Conclusion is given where there is insufficient evidence to prove any other Conclusion. This is rare and discouraged by the Chief Coroner’s Guidance as a “last resort”. It is pointed out that a Narrative Conclusion might be preferable.
- The Coroner or Jury may reach a Narrative Conclusion either instead of, or in addition to, a Short-form Conclusion – as an expansion upon it. In a non Article 2 case a Narrative Conclusion should be a brief, neutral, factual statement and should not express any judgement or opinion. The emphasis is on brevity and the avoidance of judgmental words. The Chief Coroner’s Guidance gives the following as an everyday example of a Narrative Conclusion:- “He/she died from a complication of necessary medical treatment OR of a necessary surgical procedure”
- In Article 2 Inquests a Narrative Conclusion is the norm and may be judgmental using words such as ‘inadequate’, ‘inappropriate’, ‘insufficient’, ‘lacking’, ‘unsuitable’, ‘unsatisfactorily’ and ‘failure’. Words such as ‘negligence’, ‘breach of duty’, ‘breach of Article 2’ and ‘careless’ should still be avoided as breaching the prohibition on Conclusions appearing to address questions of civil liability.
- Neglect is not a Conclusion of itself but is a finding with a strict legal definition which can be recorded as part of the Conclusion (Short – Form or Narrative) if it is made out on the evidence heard – e.g. “Suicide contributed to by Neglect”. Neglect is far narrower than the concept of negligence (breach of a duty of care) in law and has been classically defined in case law as:- “……….. a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position…who cannot provide it for himself. Failure to provide medical attention for a dependent person whose position is such as to show that he obviously needs it may amount to neglect.”
Inquests are a complex, challenging but important area of practice for medical negligence lawyers. Where a death has occurred in hospital, or another healthcare setting, there will be important questions that need to be answered about the treatment (or lack of treatment) that the Deceased patient received.
The Conclusions that we most often encounter in Health Care cases are Accident or Misadventure, Natural Causes, Suicide or a Narrative Verdict. Securing a Rider of Neglect, where appropriate, is important for families in highlighting cases where the most serious errors have occurred.
In broad terms I favour a Narrative Conclusion where possible and a Neglect finding where appropriate. Even in a non Article 2, non – Jury Inquest the investigation is invariably very full and thorough and a Narrative Verdict can be extremely helpful without the need necessarily for it to contain valued judgements – an example given by the Chief Coroner’s Guidance is:-
“The evidence leads me to find that the registrar did not seek advice from the consultant who was nearby and available at the time and the registrar knew that. The registrar acted on his own”
Overwhelmingly Inquests can be used to get to get to the bottom of what happened and get answers for families as well as the evidence secured being able to be used to piece together what happened, what went wrong (where there were failings) and thus hopefully lead to a prompt and early resolution of civil proceedings.
Nick is a Medical Negligence Solicitor with many years experience dealing with inquests and medical negligence claims.
If you or a loved one need the assistance of an experienced and accredited team of Medical Negligence Solicitors with an inquest or potential case then please do not hesitate to phone us free on 0800 999 5585, request a call back or submit your case details.