Coroners produce rule 43 reports into deaths to prevent future fatalities. Providers must follow a number of steps to stay out of them, says Adam Hartrick
A summary of coroners’ reports to prevent future deaths, from July 2008 to March 2009, has been published by the Ministry of Justice. All these reports have to be sent to the ministry for the attention of the lord chancellor.
Coroners can raise reports to seek to prevent any future death
Coroners’ extended powers regarding these rule 43 reports came into force in July 2008.
NHS trusts and other health and social care providers will want to minimise the prospect of receiving a rule 43 report, and therefore appearing in MoJ summaries or coming to the attention of the lord chancellor. This could prove particularly problematic if it relates to the same issues more than once.
Covering 207 inquests, the summary names the organisations that received a rule 43 report and gives a brief synopsis of the subject matter in each case. The publication of these reports, in summarised form, follows the amendments made to rule 43 of the Coroners rules 1984 in July 2008.
The scope of the rule has been expanded and it has been given teeth. In particular:
- coroners can raise reports on any matter they consider appropriate to seek to prevent any future death, not just similar deaths;
- a written response to the report must be made within 56 days to the coroner;
- all interested persons to the inquest and the lord chancellor will be sent a copy of both the report and the response;
- the coroner and the lord chancellor may publish the report and the response and provide a copy of both documents to any person or organisation with an interest in the matter;
- the lord chancellor may publish a summary of all rule 43 reports that have been made.
It is difficult to discern trends from this first summary, but recurring themes include:
- information, monitoring and management of dietary needs in hospital;
- inadequate documentation;
- communication issues - both within organisations and with external bodies such as the police;
- staffing issues - notably that staffing levels were not as they should have been, or staff were not adequately trained;
- medication management.
Keep out of trouble
To avoid a rule 43 report, trusts and other health and social care providers are advised to:
- initiate a serious untoward incident investigation to look at the circumstances surrounding the death of any patient that is anything other than entirely natural;
- arrange an urgent review to consider any immediate steps that can be taken to prevent or reduce the risk of repetition of circumstances that may have contributed to a death;
- implement lessons and recommendations arising from the incident as soon as possible;
- demonstrate to the coroner that lessons have been learned and recommendations implemented, if necessary with oral evidence from senior management at the inquest.
A coroner does not need to issue a rule 43 report if he or she can be satisfied that the organisation in question has considered the matter seriously, learned the lessons, disseminated them to its staff and implemented change. The key is to be proactive and take control.
A High Court decision - R (Farah) v HM Coroner for the Southampton and New Forest District of Hampshire (2009) - has confirmed that, in reaching conclusions and giving public judgements, coroners are entitled to give a verdict and a judgement about who the deceased was, how and by what means (and, in some cases, in what circumstances), and when and where the deceased came by his or her death.
Beyond this, a coroner can pass judgement only on matters that are relevant to the determination of these issues. In particular, a coroner must not express an opinion or be unfairly critical, as judged by the evidence available to the them, of any interested party; the high court will declare any such comment unlawful.
This sits well with the Court of Appeal decision in R (Lewis) v HM Coroner for Mid and North Division of Shropshire (2009). This, among other matters, affirmed that, even in an article 2 inquest, there is no requirement for findings on matters that are not causatively relevant to death.
In difficult cases, health and social care providers should consider legal representation at the inquest, or seeking a legal opinion before the inquest to minimise the risk of criticism and, indeed, being the subject of a rule 43 report for all to see.