Staff Attending Inquests/Court and Assisting with Police Investigations Guideline

Transcription

1 Staff Attending Inquests/Court and Assisting with Police Investigations Guideline Guideline Number: 018 Supersedes: 018 Classification Corporate Version No: Date of EqIA: Approved by: Date Approved: Date made active: Review Date: 2 4/1/17 QSEAC 15/08/ /09/ /08/2020 Brief summary of Document: Scope To be read in conjunction with: Owning Committee This guideline has been prepared to advise staff of the procedure and support available if requested to provide information to the Coroner, attend an Inquest or assist in police investigations. This guideline is applicable to all staff Management & investigations of incidents procedure Claims Policy Improving Experience Sub-Committee Assistant Director (Patient Experience) 1 of

2 Version no: Summary of Amendments: 1 New guideline Reviews and Updates Date Approved: 29/01/ Updated Guideline /08/2017 Glossary of Terms: Term HB RCA HSE Definition Health Board Root Cause Analysis Health and Safety Executive Keywords Staff Attending Inquests/Court Assisting with Police Investigations Database No: 018 Page 2 of 17 Version 2.0

3 Contents 1. AIM SCOPE OBJECTIVES ROLE OF THE CORONER REPORTABLE DEATHS POST MORTEM REQUESTS FOR STATEMENTS ATTENDANCE PREPARING FOR THE INQUEST THE INQUEST EVIDENCE FROM THE PATHOLOGIST JURY INQUESTS VERDICTS (CONCLUSIONS) PRESS AND PUBLICITY AFTER THE INQUEST CRIMINAL PROCEEDINGS SUPPORT FOR STAFF APPENDIX 1 - CORONER STATEMENT REQUIREMENTS APPENDIX 2 - WITNESS GUIDANCE APPENDIX 3 - CONTACTS Database No: 018 Page 3 of 17 Version 2.0

4 1. AIM The aim of this guideline is to explain the role of the Coroner; the purpose of an Inquest, and to assist staff who may be involved in the investigation of a death that has been referred to the Coroner or Police. Hywel Dda University Health Board (HB) recognises that staff are more likely to be called to give evidence in a Coroner s Court than any other Court. It is important that staff are well supported in this process, and that they are well prepared so that they can satisfy the Coroner s enquiries. Most staff feel anxious about attending an Inquest, often due to uncertainty about the Inquest process and the role of the witnesses. Preparation is important to minimise any concerns staff feel about providing evidence. 2. SCOPE The guideline is applicable to all staff; however it is generally clinical staff such as doctors,nurses and healthcare support workers that are more likely to be called to give evidence in a Coroner s Court. 3. OBJECTIVES This document provides information about the process, what to expect and who to contact for support and further guidance. 4. ROLE OF THE CORONER The Coroner is an independent judicial officer, a doctor or lawyer, with statutory responsibility for investigating deaths under various circumstances, where the death must be reported to him/her. The Coroner s role is to establish who died, where they died, when they died and how they came by their death (by what means and in what circumstances), including the medical cause of death. The Coroner also has jurisdiction to inquire into any treasure which is found in his/her district and who is the finder of the treasure. It is important for staff to remember that the Inquest process is a fact finding rather than fault finding process to help the Coroner establish the cause of death. There are no parties, prosecution or defence counsel, as in a criminal court. However, if the patient s family decide to appoint counsel, the HB may also appoint counsel. In most cases, the HB will be represented by a solicitor. It is not within the role of a Coroner to enquire into potential issues of medical negligence. The court is open to public and members of the media and it is common for local journalists to be present. In some cases, national press may be present. There are two Coroners covering the HB area: HM Coroner for Pembrokeshire and Carmarthenshire: The Town Hall, Hamilton Terrace, Milford Haven, SA73 3JW, Tel and for reporting deaths HM Coroner for Ceredigion: 6 Upper Portland Street, Aberystwyth, Tel Database No: 018 Page 4 of 17 Version 2.0

5 5. REPORTABLE DEATHS The Coroner investigates deaths reported to him/her. There is no statutory duty upon a doctor to report any death to the Coroner. It is considered good practice for doctors to be aware of reportable deaths and to report them promptly and correctly. A list of reportable deaths is as follows: It cannot readily be certified as being due to natural causes; The deceased was not seen by a doctor within the 14 days prior to the death; There is any element of suspicious circumstances or a history violence; The death may be linked to an accident (whenever it occurred); There is any question of self-neglect or neglect by others; The death has occurred or the illness arisen during or shortly after detention in police or prison custody (including voluntary attendance at a police station); The deceased was detained under the Mental Health Act; The death is linked with an abortion; The death might have been contributed to by the actions of the deceased himself (such as a history of drug or solvent abuse, self injury or overdose) The Death could be due to industrial disease or related in any way to the deceased s employment The death occurred during an operation or before full recovery from the effects of an anaesthetic or was in any way related to the anaesthetic (in any event a death within 24 hours should normally be referred); The death may be due to a lack of medical care; There are any other unusual or disturbing features to the case; The death occurs within 24 hours of admission to hospital (unless the admission was purely for terminal care or the cause of death is beyond doubt and does not fit with the above criteria). It is recommended to report any death where there is an allegation of medical mismanagement. Where there is any doubt as to how to proceed, advice should be sought from the Medical Director or the relevant Hospital Director. The Doctor should inform the Medical Director or local Hospital Director if a death is reported to the Coroner, or any concerns are raised with the Coroner regarding the clinical management of a patient. This will ensure that any remedial action to manage any patient safety risks can be considered. 6. POST MORTEM In most cases of deaths reported to the Coroner, a post-mortem (autopsy) will be carried out, which is the examination of a body after death. Post mortems are carried out for two reasons: if the death has been reported to the Coroner and he or she feels that a post mortem is necessary to determine the cause of death; or at the request of the hospital in order to provide information about an illness or cause of death, and to further medical research. If a post mortem is ordered by a Coroner, it must take place by law, whether the deceased s next of kin has given their agreement or not. The post mortem will take place independently of the HB and findings can only be released to clinicians or other third parties with permission from the Coroner. If the post mortem is requested by a hospital, written consent must be obtain from the next of kin. Relatives can also ask for a post-mortem. Database No: 018 Page 5 of 17 Version 2.0

6 7. REQUESTS FOR STATEMENTS If an Inquest is to be held, witness statements will be required. The Coroner s office will contact the Legal Services Team in the HB to request that statements be obtained from all relevant staff involved in the patient s care and treatment. The Legal Services Team will then liaise with the relevant staff via the General Manger/Director or Head of Department. Staff should obtain advice from the Legal Services Team before making a statement. Staff should contact their line manager/senior manager upon receipt of a request for a statement to discuss the facts surrounding a patient s death. Support will be available from the Legal Services Team and also the Solicitor appointed from within NWSSP Legal and Risk Services, who represent the HB. It is usual practice for a meeting to be held with the legal team/representatives and the HB witnesses prior to the Inquest. The statements should be forwarded to the Coroner within 28 days of receipt of the request. The Coroner will then share these statements with the family. A prompt and accurate statement may reduce the likelihood of the requirement to attend the Inquest in person. In these circumstances the statement may be admitted as written evidence. After receiving the HB investigation report and statements, the Coroner will then decide whether or not staff are required to attend as witnesses. Information on the format and content required for witness statements can be found at Appendix ATTENDANCE The invitation to attend an Inquest is really an order and the Coroner has the legal authority to issue a witness summons (a legal order to attend). If a member of staff has not been invited to attend, it may still be appropriate for them to attend. Managers or Consultants are encouraged to attend to support staff. 9. PREPARING FOR THE INQUEST The Coroner s office will contact the HB s Legal Services Team when a case has been accepted for an Inquest. If a member of staff receives formal communication from the Coroner s officer they should immediately inform their line manager/senior manager who will then inform the Legal Services Team. Please note the Coroner can call on the police to assist him, with his enquiries, as Coroner s Officers. This is due to resource issues in his service rather than any implication that there is a need for a police investigation of a criminal nature. Managers should ensure that the General Manager/Hospital Director/Clinical Director is informed of the Inquest and of any wider implications for the HB. All cases accepted for Inquest will require a review by the HB department in which the deceased was receiving treatment. This will result in a written report (Root Cause Analysis) providing clear information about patient care preceding the death, any areas of concerns, and most importantly any lessons that can be learnt. This RCA document is usually requested by the Coroner, who will wish to be reassured that any remedial action has been taken where there are any identified failings in care/treatment. Some patient deaths will not require this level of input from the HB, for example if the majority of care took place in another HB area or out of country. Database No: 018 Page 6 of 17 Version 2.0

7 If there have been any criticisms about the care or an incident that occurred during NHS treatment, the Legal Services Team will co-ordinate the production of witness evidence for the eventual Inquest. In such cases, it is usual for the HB s solicitor to be asked to meet the witnesses to support them in the preparation of evidence. Any areas of concern should be discussed fully. Staff can be accompanied by a representative of their professional body, medical defence organisation, trade union or friend when attending any meetings with the HB Legal Services Team. Witnesses should ensure they retain a copy of their statements. The Legal Services Team will arrange for the HB s solicitor to contact and if necessary interview the witnesses in sufficient time prior to the Inquest to support their preparation. All staff are reminded that prompt contact with the Legal Services Team allows adequate time to prepare witness evidence and provide support to individual staff members. Members of staff should not be contacted by the Coroner s officer for statements without prior arrangement and staff have the right to refuse until an agreed appointment can be made. The Legal Services Team will liaise with the Communications Team and relevant senior managers to ensure press releases are prepared to respond to any media interest. Staff should not give any comment or press statement as part of an Inquest and any request from media should be referred to the communications team. 10. THE INQUEST All witnesses will be informed of the date, time and place of the Inquest and should make every effort to be punctual and aim to arrive at least half an hour prior to the start of the hearing and be smartly dressed. It is advisable not to wear brightly coloured clothing, out of respect for the deceased and their relatives. Witnesses may choose to bring a friend, work colleague, representative of their professional body, medical defence organisation or trade union to support them on the day of the Inquest. A member of the Legal Services Team and/or the HB Solicitor will also be present. The Coroner should be addressed as Sir or Ma am. The Coroner will sit behind a bench at the front, with Counsel (barristers) and/or solicitors on the first front row in front. The Coroner will decide in what order witnesses will be called. Witnesses will be called to the stand and will be sworn in by the Coroner s Officer before giving their evidence (the witness will be asked to swear on a holy testament to tell the truth or if the individual does not have a faith, an affirmation can be given). Several holy books of different faiths will be available. Usually Coroners will have limited understanding of medical terms and conditions, so will seek clear jargon-free explanations on behalf of themselves and the family. Reading over the prepared statement and medical records in advance will allow the witness to respond with greater ease. If a witness needs to refer to the medical records, they should ask the Coroner for the opportunity to do so before answering. Witnesses should only answer the question asked and not attempt to answer questions outside of their area of expertise. Witnesses should not feel compelled to answer any question about an event that they are unable to recall or an event where they were not directly involved. If a witness does not know the answer to a question then they should say so. Database No: 018 Page 7 of 17 Version 2.0

8 Witnesses should always seek guidance from a Coroner if any question is unclear or requires further clarification, before providing an answer. Relatives are invited to ask questions after the Coroner has finished questioning the witnesses and some families choose to be represented at the Inquest by a solicitor or barrister. The HB solicitor may then ask questions after the family has finished. A witness is not expected to answer any question which could incriminate them and should decline to do so. If professional conduct or competence is called into question an adjournment can be requested so legal representation can be arranged. Once the witness has given evidence they will be asked to step down. Witnesses must remain in Court, until released by the Coroner. The Inquest is recorded and a copy of this can be released upon request after the Inquest. A guide for witnesses can be found at Appendix EVIDENCE FROM THE PATHOLOGIST Before the start of the Inquest, it may be possible for the HB to obtain a copy of the post mortem, depending upon its significance to the issues under investigation. This will be at the discretion of the Coroner. Even though pathologists are normally employed by HBs, they are directly accountable and reportable to the Coroner for all matters relating to post mortem examinations, subsequent reports and attendance at Inquests. Senior clinicians are advised to remain in Court until the pathological evidence is heard as it may be that only after consultation between clinicians and the pathologist at the Inquest a precise formulation of cause(s) of death can be made. 12. JURY INQUESTS The majority of Inquests are held with the Coroner sitting alone. However, under Section 7 of the Coroners and Justice Acts 2009, a number of instances exist where a jury must be called. These may include where a death was in custody or state detention including Section 3 of the Mental Health Act or was the subject of a Deprivation of Liberty Order and the death is violent, unnatural or of unknown cause; the death resulted from an act or omission of a police officer in the purported exercise of their duty, the death was caused by a notifiable incident, poisoning or disease, or the Coroner thinks that there is sufficient reasoning to do so. An Inquest with jury may also be held under Article 2 of the European Convention on Human Rights, to protect life, when the state s enhanced investigative obligations under Article 2 is or may be engaged. As well as being known as an Article 2 Inquest, it can also be known as a Middleton Inquest. The investigation will consider in depth whether there was a failure by the state to meet its Article 2 obligations to make adequate provisions for healthcare standards and the lives of patients and whether there were defects in the system(s) which contributed to the death. A jury is selected in the same way as when summoned to Crown Court and the jurors are selected from the electoral register. A jury will consist of no less than seven and no more than eleven members. Database No: 018 Page 8 of 17 Version 2.0

9 The role of the jury is to listen to the evidence, ask appropriate questions and reach a factual verdict, based on the evidence provided. 13. VERDICTS (CONCLUSIONS) When all evidence has been presented, and, prior to the conclusion (previously called verdict) being given, the Coroner will normally provide an oral summary. A conclusion is given on the balance of probabilities, except for a small number of exceptions. There are a number of possible conclusions, such as natural causes, suicide, accident/misadventure and unlawful killing. An open verdict will be given where the evidence is inconclusive. Evidence must prove, beyond a reasonable doubt for a verdict of suicide to be given. Narrative conclusions are provided more regularly, which provides a factual statement of the circumstances in which a patient died. Clinical negligence cannot be indicated in any way by the given conclusion. The Coroners Inquest Rules 2013 allow recommendations to be made to organisations where action is believed to be necessary to prevent similar deaths (Regulations 28 and 29). 14. PRESS AND PUBLICITY As Inquests are held in public, the press will often be present. Staff attending an Inquest should not speak to the media and should refer enquiries to the communications department. Staff should be aware that the press may report details of the case including the identity of witnesses as Inquests are heard in a public court. 15. AFTER THE INQUEST The conclusion and any recommendations/comments will be shared with the relevant departments for consideration. Discussion will take place regarding lessons learnt and actions to be taken in order to minimise the risk of similar incidents occurring in the future. A subsequent review / audit should be undertaken and an assurance report presented to the Improving Experience Sub- Committee and relevant Quality, Experience and Assurance Sub-Committee. 16. CRIMINAL PROCEEDINGS In rare cases where an external authority (such as the Police, Information Commissioner or Health & Safety Executive) investigates criminal proceedings, the HB, in most circumstances, will allow these agencies to undertake their enquiries and not seek to carry out any activity which may influence the outcome of the external investigation. However, in cases where the HB believes there to be an issue of significant patient safety, the HB will also undertake its own investigation. Staff may also be asked to complete first-hand accounts of their involvement in the incident for the organisation s investigation. This is to ensure that any urgent remedial action can be undertaken to safeguard patient safety. In these cases, the individuals involved may wish to obtain their own legal representation independent from the HB. Those employees performing extended clinical roles are strongly advised to obtain their own legal expenses insurance to cover the costs arising from such advice for example from the RCN/Medical Defence Organisation. The HB will comply with the guidance set out in the Memorandum of Understanding Investigations Incidents involving an unexpected death or serious untoward harm, whilst this does not exist formally in Wales, this provides a valuable framework for managing incidents of this nature Database No: 018 Page 9 of 17 Version 2.0

10 If staff are asked to provide information to the Police or Health and Safety Executive (HSE) they must contact the Legal Services Team before providing information. If staff are unable to contact the Legal Services Team, the officer must be asked to contact the Chief Executive s Department, and ask the officer to confirm the nature of the documentation requested completing the relevant S29 Data Protection Act request form, together with their contact details and assure them that the HB will respond as soon as possible. Under no circumstances should any hospital records be released or information given over the telephone. Any written records relating to the care and treatment of patients and/personnel records for member of staff must not be handed over to any party without the specific authorisation of the Legal Services Team. Staff are asked to explain that they are in the process of seeking authorisation and that the request will be dealt with promptly. In some circumstances, a police officer will require verbal information regarding a patient s condition/injuries, without at that stage requiring a full statement (eg when deciding whether an alleged assailant should be charged with causing Grievous Bodily Harm or not). Such verbal information may be released by a Doctor, provided the patient consents to the release, or in the Doctor s opinion, there is an over-riding duty to society. In cases of doubt, the A&E Consultant will advise. If a police officer or HSE inspector requests a statement from a member of staff in connection with an ongoing investigation, the individual should ask them to confirm the nature of the statement, ie are they asking for a voluntary witness statement. Staff are not obliged to provide a witness statement, however this is entirely a decision for the member of staff. The HB would advise staff as follows: Decline to provide a statement at that stage, but confirm that the request will be considered and respond as quickly as possible; Take the officer s contact details; Contact the Legal Services Team, your union, or seek legal representation for further advice. Where staff are required to attend an interview under caution, staff are advised to: Ask the police officer to agree a suitable date for the interview so that you can take legal advice; Take the officer s contact details; Contact the Legal Services Team who will arrange for you to take legal advice. If a police officer compels a member of staff to attend an interview under caution, ie the staff member is arrested and taken to the police station, staff are advised to contact the Legal Services Team immediately and arrangements will be made for an independent solicitor to attend the police station where they will advise and support the member of staff through the course of the interview. 17. SUPPORT FOR STAFF The HB is committed to developing a working environment that promotes the health and well-being of its employees. The health of staff can be affected if they are involved in traumatic incidents, complaints or claims. Staff may be distressed, anxious and concerned about their involvement, the consequences of this for the patient, the family, themselves and their colleagues. For some staff, the distress and loss of confidence involved can affect the individual s ability to continue to work and maintain a normal home life. Database No: 018 Page 10 of 17 Version 2.0

11 The first line of support is the individual s line manager, who should be involved as soon as possible. Much of the reassurance required by the staff member can be given by the manager, informing the staff member of the process and referring them to the appropriate resources and services. Depending on the nature of the incident, it may be possible for the manager to provide support to staff during the incident, for example where patients or relatives may be getting disruptive or uncooperative and unwilling to listen to staff. The line manager should be aware of those members of staff who may be vulnerable, perhaps due to similar past experiences or who have particularly close involvement with the incident or with those involved in it. Staff should be seen individually and extra support provided if required. Support can be provided from the Occupational Health Department, as well as the Staff Pscyhological and Well-Being Service. Contacts can be found at Appendix 3. The fitness of staff to undertake or continue their full range of duties following a stressful event should be risk assessed and consideration given to appropriate adjustments to duties or responsibilities should be this necessary. A list of contacts can be found at Appendix 3. - References Coroners Investigation Regulations Coroners Inquest Rules Coroners and Justice Act Health and Safety at Work etc. Act 1974 Database No: 018 Page 11 of 17 Version 2.0

12 18. APPENDIX 1 - CORONER STATEMENT REQUIREMENTS The following is a guide on how statements for the Coroner should be prepared and the information they should contain: Format The statement should be typed on HB headed paper State clearly in the header which incident the statement refers. Details of names, dates of birth/death, hospital number and dates of specific incidents should be included. The statement should clearly identify: Your name; Your current position; Position at the time of the incident; Any relevant qualifications that you hold; Number of years experience in the relevant area; and Where you are based, eg clinical area and directorate. The statement should include, to the best of your knowledge, the numbers of staff on duty and the number of patients on the ward. In the footer the statement the pages should be numbered, it should be signed and dated. Content Write the statement in chronological order providing an account of your involvement with the patient. The statement should be factual and not contain any personal opinion about matters outside your field of expertise. The statement must not contain any hostile, offensive or unnecessarily defensive comments. The statement should be written in the first person singular, e.g. I saw... You must be as accurate as possible in relation to dates, times and dosages of drugs etc. Statements must not be written without access to the health care records. Clearly state what you can and cannot recollect from memory and what has been taken from the records. Reference should be made to relevant policies, procedures and guidelines in use at the time, if appropriate, and copies attached to the statement. If you deviated from any policies/guidelines explain reasons for this. Database No: 018 Page 12 of 17 Version 2.0

13 If you use abbreviations, ensure that full terminology is given at least once, with the abbreviation to be used in brackets. Technical terms can be used but you should try to explain them in lay terms where possible. You may find it helpful to number the paragraphs so that it is easier to use your statement when giving your evidence at the Inquest. Conclude your statement with the phrase the contents of this statement are true to the best of my knowledge and the date, your designation and your signature. Signed and dated statements are legal documents and may be disclosed to a patient, their representative and legal adviser. Always retain a copy of your statement for future reference. When drawing up a statement you have the right to seek advice from your legal defence body or union. Advice can also be sought from the/legal Services Team. Copies of statements must not be placed in a patient s records. This also applies to any complaint, or claim correspondence! Database No: 018 Page 13 of 17 Version 2.0

14 19. APPENDIX 2- WITNESS GUIDANCE When giving evidence in Court DO: Speak clearly and slowly Answer the question asked Keep the answer as succinct as possible Ask the question to be repeated if it was not audible Reply I don t know if you do not know the answer Reply I can t remember if you cannot remember a particular point Be courteous Take your time Think about the question and the answer before giving it Stick to what you know from your own knowledge Ask to refer to the witness statement if you need to refresh your memory Tell the Coroner you do not understand the question if that is the case Direct all answers to either the Coroner or the family of the patient if they are in Court, and not the barrister or solicitor Familiarise yourself with the contents of your witness statement at least the night before and, if necessary, again during the morning before the Inquest starts Inform the barrister or solicitor, before the start of your evidence, if any of the contents of the statement are incorrect Tell the truth Tell only what you know and what is within your area of expertise Database No: 018 Page 14 of 17 Version 2.0

15 DON T: Guess or speculate on the answer to a question Argue with the barrister, solicitor or family Ask questions of the barrister or solicitor or rhetorical questions Get angry or upset Keep going if you need a break Be rushed into giving an answer without thinking Be forced to answer questions at a pace with which you are uncomfortable, answer questions at your own pace Allow yourself to be browbeaten into saying yes when you have said no to the same or similar question several time already Give the barrister or solicitor the answer he wants simply to get him off your back Speak to other witnesses about your evidence Speak to anyone about the case if there is a break and you are still in the middle of giving your evidence Swear or use coarse language unless you are repeating something you overheard which is relevant to the case; Turn up at Court only 5 minutes before the case is due to start; arrive either at the time the solicitor has directed or, in any other case, at least half an hour before the case is due to start; Waffle; Worry or concern yourself with the argument the barrister or solicitor is seeking to make; stick to the facts; Database No: 018 Page 15 of 17 Version 2.0

16 Try and anticipate the questions the barrister or solicitor is going to ask you in a few minutes time; take each question one at a time; Refuse to answer a question, unless you are told by the Coroner that you may do so. Turn up and tell the Coroner that you have had not had the chance to read your witness statement recently or you are not sure if the contents of it are true (this will cause unnecessary delay) Tell the Coroner the contents of your statement are true, even though you know one or two points are not, but you feel that you must stick to the statement because you have signed it on a previous date (if the statement contains an inaccuracy that must be corrected at the outset) Worry or concern yourself about how you will come across; if you be yourself you will be fine. Database No: 018 Page 16 of 17 Version 2.0

17 20. APPENDIX 3 - CONTACTS Legal Services Team Louise O Connor, Assistant Director (Patient Experience / Legal Services), WGH x 4478 Louise.O Connor@wales.nhs.uk Janet Griffiths, Legal Services Manager (Carmarthenshire) GGH x 4093 Janet.Griffiths3@wales.nhs.uk Sue Evans, Legal Services Manager (Ceredigion/Pembrokeshire) WGH x 3545 Sue.Evans2@wales.nhs.uk Jane Whalley, Redress and Legal Advice Manager GGH, x 2144 Jane.whalley2@wales.nhs.uk Communications Yvonne Burson, Head of Communications, Hafen Derwen, Yvonne.burson@wales.nhs.uk Medical Records Steven Bennett, Health Records Manager, PPH , GGH Steven.bennett@wales.nhs.uk Staff Psychological and Well-Being Service Suzanne Tarrant, Head of Service, WGH Occupational Health Department Vanessa Davies, Head of Occupational Health BGH , GGH , PPH , WGH Chaplaincy Euryl Howells, Senior Chaplain, Hywel Dda University Health Board, or Euryl.howells2@wales.nhs.uk Database No: 018 Page 17 of 17 Version 2.0