Legal briefing: Will the coroner be able to run your hospital?

Ever since the murders committed by.GP.Harold Shipman came to light, there have been calls for a radical overhaul of the coronial system, which still preserves many features of its medieval beginnings.

The government published a draft bill for consultation last year. It has now reported back on the responses it received and the changes it proposes to make. According to the government, the bill will provide five key reforms:

• Bereaved people will be able to contribute more to coroners' investigations, and there will be a new appeals system if they are unhappy about decisions;
• national leadership will be introduced through a new chief coroner and a Coronial Advisory Council;
• coroner posts will be full-time. Current boundaries will be reshaped to ensure a fair distribution of work, and good links with relevant agencies;
• coroners will have new powers to obtain information and summon witnesses, which will ensure better investigations and inquests;
• coroners will have better medical support and advice at both local and national level.

In January the government announced its intention to give more teeth to the public safety role of the coroner. Coroners make what are currently called rule 43 reports. These highlight a death to whichever organisation needs to act to prevent that type of death happening again. The government proposes that where coroners issue such a report, they will also be able to require organisations to respond by setting out what action they will take.

Legal obligation

The coroner will be able to request a written response in a specified timeframe and there will be a legal obligation for agencies and organisations to deliver this. To ensure accountability, these reports and responses will be monitored by the chief coroner, plus an annual report will be made to the lord chancellor and laid before the Commons.

This is a significant change. It is designed to make sure lessons are learnt from coronial investigations, and that these lessons can be shared nationally. At Bevan Brittan we are certainly aware of cases where the same reports have been made by the same coroner to different organisations following separate inquests. In the healthcare field such reports often have a national perspective, and any changes that can bring about a more co-ordinated response will no doubt be welcomed.

However, these powers need to be exercised carefully. Coroners are not always best placed to make decisions about how procedures should be changed, and they need to avoid trying to run the health service from their own courtroom.

Impact assessment

The intention behind rule 43 has always been to allow coroners to raise their concerns about a death to fulfil their public safety obligations. But all too often those reports go beyond the scope of the present power and prescribe changes without considering their real impact. Any organisation receiving such a report should be given a fair opportunity to consider the issues for themselves before determining the appropriate response. We are all aware of the negative impact in terms of patient safety that can flow from arbitrary NHS targets where the consequences of change are not properly evaluated.

It is already the routine practice of many lawyers working in this field to try to evaluate the potential of rule 43 reports. Robust governance arrangements and detailed investigation of untoward incidents happen as a matter of course. Senior managers are regularly called as witnesses to tell the coroner about the changes already made in response to an unexpected death, well before the coroner is able to draw his or her own conclusions. Such an approach is also vital for retaining public confidence in local health services and mitigating the adverse media coverage that can follow.

If the government's changes come to fruition, it will be even more urgent for organisations to show they have learnt the lessons from an unexpected death, and learnt them quickly.

Duncan Astill is an associate and lead of the Birmingham healthcare team at Bevan Brittan LLP

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