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Reports to prevent future deaths

Julie Ford Legal Director 0207 280 9338 Julie.ford@hilldickinson.com

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What will this Session Cover?

1. What is a report to prevent future deaths 2. Chief Coroners guidance 3. Practical tips 4. Latest developments

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Introduction

The Coroners (Investigations) Regulations 2013 28 1) This regulation applies where a coroner is under a duty under paragraph 7 (1)

• f schedule 5 to make a report to prevent future deaths.

2) In this regulation, a reference to a "report“ means a report to prevent other deaths made by the coroner. 3) A report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner are relevant to the investigation.

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Introduction continued

4) The Coroner- a) Must send a copy of the report to the Chief Coroner and every interested person who in the coroner's opinion should receive it: b) Must send a copy of the report to the appropriate Local Safeguarding Children Board (which has the same meaning as in regulation 24 (3)) where the coroner pleased the deceased was under the age of 18: and c) May send a copy of the report to any other person who the coroner believes may find it useful all of interest.

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Introduction continued

5) On receipt of a report the Chief Coroner may- a) Publisher copy of the report, or a summary of it, in such manner as the Chief Coroner thinks fit: and b) Sent a copy of the report to any person who the Chief Coroner believes may find it useful or of interest

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Introduction continued

29 3) the response to a report must contain- a) details of any action that has been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise set out a timetable of the action taken or proposed to be taken: or b) An explanation as to why no action is proposed. 4) The response must be provided to the coroner who made the report within 56 days of the date on which the report is sent.

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Chief Coroner’s Guidance No 5

The timing of the report Normally the report will be made after the inquest is concluded. That is because of the pre-condition to making a report provided by Regulation 28(3), above.

• Previously, the coroner’s concern could only arise from evidence given at the

inquest.

• Now, however, the concern may arise from ‘anything revealed by the investigation’

(including the inquest).

• The wording of para.7 of Schedule 5 therefore permits a report to be made before

an inquest is heard

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Chief Coroner’s Guidance No 5 continued

The nature of the report

• The report need not be restricted to matters causative (or potentially causative) of

the death in question.

• It can be ‘anything’ revealed by the investigation which gives rise to concern that

‘circumstances creating a risk of other deaths will occur …’

• The questions raised give rise to sufficient concern with the coroner that action

should be taken to prevent future deaths, not deaths in circumstances similar to the deceased’s death, but relating

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The Coroners concerns

• The report, having set out the details of the investigation (and inquest) and the

circumstances of the death, must then list the coroner’s concern.

• The coroner should express clearly, simply and ‘in neutral and non-contentious terms’ the

factual basis for each concern.

• In some cases the action to be taken following the coroner’s concern will be obvious. But

it is not for the coroner to express precisely what action should be taken. The latter is a matter for the person or organisation to whom the PFD report is directed.

• Coroners should be careful, particularly when reporting about something specific, to

base their report on clear evidence at the inquest or on clear information during the investigation, to express clearly and simply what that information or evidence is, and to ensure that a bereaved family’s expectations are not raised unrealistically.

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The Coroners concerns continued

• Reports should not apportion blame, be defamatory, prejudice law enforcement

action or the administration of justice, affect national security, put anyone’s safety at risk, or breach data protection for example by naming children or breaching medical confidentiality.

• Coroners should not make any other observations of any kind, however well

intentioned, outside the scope of the report.

• Phrases such as ‘I am appalled’ or ‘I am disgusted’ or ‘shame on you’ should not

be used.

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Chief Coroner's Guidance No 5

• The coroner should not recommend what that action should be taken but the coroner can

highlight the area of concern and draw attention to it .

• It is not for a coroner to make recommendations as to what specific action should be
• taken. The wording of the 2009 Act does not go as far as, for example, the New Zealand

law which permits coroners to make recommendations (section 22A, Coroners Act 1980). The coroner in England and Wales may draw attention to an area of concern for the person/organisation to consider, such as: ‘You should consider a review of your procedures on safety and the use of ladders’. But that is not a specific remedial recommendation.

• The report should be sent out (a) within 10 working days of the end of the inquest, or (b)

within 10 working days of the time, earlier, before inquest, when the matter of concern is revealed and considered during the course of the investigation.

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A letter in place of a report

Where the duty to make a report does not arise, but the coroner wishes exceptionally to draw attention to a matter of concern which has arisen during the investigation (including the inquest), the coroner may choose to write a letter expressing that concern to the relevant person or organisation. For example, the matter in question may not relate to a risk of future deaths. Such a matter could be discussed with interested persons at the inquest and the correspondence could be copied to them (paragraph 37 letter).

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A letter in place of a report continued

• Should be discussed at the inquest with the interested persons.
• The content of the letters should be copied to all interested persons.
• May give reassurance to families that where the evidence gives rise to

concern, but there is no risk of future deaths, such concerns have been acknowledged.

• Regarding issues that arise unexpectedly during the inquest, issuing such a

letter provides the interested person with an opportunity to respond to the can discern that in some cases avoiding a report to prevent future deaths.

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A few facts…

• There has been approximately 116 PFD’s issued (as reported on the Chief

Coroner’s website), since the 1 July 2018.

• Between July 2017 and June 2018 there were 377 PFD reports submitted.
• Between 2016 and 2017 there were 375.
• In the 2015-16 period it is reported that there were 571 PFD reports issued.
• In 2014-2015 504 PFD reports were issued(which was the first total recorded

in the Chief Coroner’s reports).

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Practical tips

• Do the concerns raised relate to your organisation?
• Has a RCA or SI been undertaken? If so, what of the recommendations arising from it?
• Are there any areas for learning above and beyond what has been covered in the investigation

report?

• What learning might arise even where no harm has occurred?
• Is live evidence required from an individual involved in the preparation of the report or action

plan?

• Do you have evidence that any lessons learned have been embedded within the organisation?

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Challenging a PFD report – don’t!

R (Dr Siddiqi and Dr Paeprer- Rohricht) v Assistant Coroner for East London

• The claimant's alleged that the factual basis upon which the PFD report had

been issued was incorrect and the remedy sought was to withdraw it.

• The application was dismissed at the permission stage.
• Mr Justice Lavender confirmed that the coroner has no power to withdraw a

PFD report once made and the appropriate remedy for those wishing to take issue with the content of a PFD report was to respond to it as provided for in part 7(1)of schedule 5 CJA 2009.

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The Grenfell Tower PFD report

In the aftermath of the Grenfell Tower fire, Dr Wilcox has reported to the Chief Executive of NHS England the following concerns;

• Survivors of the fire, first responders and site workers were or may have been exposed to

significant inhalation of smoke and dust containing toxic substances, and risk developing health conditions (including possibly mesothelioma following possible asbestos exposure).

• Without appropriate health screening, there is a risk of missed or delayed diagnosis reducing life
• expectancy. The NHS needs to undertake risk evaluation then consider an appropriate regular

health screening programme stop is effective also need guidance and information to help understand the potential consequences of exposure to the hazardous environment of the site of the fire.

• People affected by the incident have suffered harm to mental health or emotional trauma and

need appropriate mental health support.

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The Grenfell Tower PFD report continued

• Generally a "scale and risk assessment of need and care provision needs to be undertaken to

minimise affected persons slipping through the net and being lost from appropriate supportive services"

• The full material upon which the senior coroner has based a report is not available. She does

comment however about the lack of health screening programme put in place to monitor the health of survivors on an ongoing basis and that the extensive NHS mental health support made available to bereaved, survivors and residents, is only funded until March 2019

• In this case, the Senior coroner temporarily lifted the suspension of her own investigation to

issue the report, which she understood would not conflict with the public enquiry, police investigation and any prosecutions.

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Observations on the Grenfell Tower PFD

• This case illustrates that there does not need to be any similarity between

the future deaths which the coroner seeks to prevent and the deaths which the coroner has investigated.

• It would appear that the coroner has taken into account the risk of deaths

from suicide precipitated by mental ill-health in order to bring mental health support within the scope of her report (although this is not specifically confirmed in report).

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Observations on the Grenfell Tower PFD continued

• This case is a good example of how the coroner is not restricted to matters

revealed in evidence at the inquest. In this case, concerns about future health screening are not relevant statutory questions the coroner would have to answer at an inquest in relation to the deaths and in any event, the evidence which might be heard by the coroner may be very limited owing to the convening of the public Inquiry.

• Although the coroner has set out her concerns, she has been careful not to

specify what action should be taken. That said, this is one of those cases where arguably the action to be taken, broadly described, in light of the concerns, is obvious.

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What’s the point?

• On 28 March 2013, the coroner, following conclusions which were returned of

the death of six people in the fire at Lake no house in 2019, made important potential life-saving recommendations under the old rule 43 regulations.

• It would appear that the concerns raised in the report have not been acted

upon and this was a point of discussion following the Grenfell Tower fire.

• There is some chatter that PFD reports should be afforded the status which

makes them binding unless overruled.

• Nothing has happened yet, but watch this space.

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Any Questions?

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