briefing July 2013 Cming yur way nw - the New Crners Regulatins and Rules 1 Intrductin July 25th sees the first fundamental change t Crnial prcedures in ur lifetime cme int frce. They are designed t last a lifetime... here are the basics yu need t knw and prepare fr. 2 Preliminaries Des this affect me? The Crners (Inquests) Rules 2013 (the rules) and regulatins take effect n 25th July 2013 and include all existing matters. It is nt clear what happens if a matter is part heard, thugh it is suggested that matters nt be listed t span acrss the date! Wh are the crners? At first blush there is nt much change. The Chief Crner has been in pst fr 18-mnths and his rle is t mnitr and mdernise the prcess. Crners becme senir crners wh are supprted by area crners and assistant crners. Jurisdictins will cntinue t be merged and the whle system is t becme mre prfessinalised with better training fr crners and with the aim f a mre cnsistent apprach. Having said that, there will still be a significant amunt f lcal practice and differences f apprach can be expected t be taken by different crners. It is expected that the Chief Crner will issue firm guidance n varius matters. Crners will becme senir crners but their current deputies will nt becme area crners. These will be appinted in due curse. Deputies and assistant deputy crners becme assistant crners. N mre hanging arund the mandatry retirement age is 70. Crners are nw a creature f statute. There is sme dubt whether they can be called HM Crner. A ruling is awaited. Funding: wh pays? This will remain a difficult issue. The crnial service is still funded by the relevant lcal authrity. N new mney has been made available t fund this imprved and faster service. 1
This means, in my experience, that crners will cntinue t rely upn the gd will f healthcare prviders t help with the investigatin by btaining statements, cpying dcuments and disclsing papers t ther interested parties. Naturally, it is always wise t help whenever pssible. 3 The investigatin The Crners and Justice Act 2009 (the Act) intrduces a new cncept f a crnial investigatin. The whle prcess (including the inquest itself) is nw knwn as an investigatin which cmmences as sn as a death is reprted t the crner. This means that there des nt have t be a frmal pening f an inquest n ntificatin which is then adjurned. The crner can wait until later in his investigatin t decide whether r nt t hld a frmal inquest hearing. Of immediate imprtance t healthcare prviders: This shuld mean a reductin in the number f inquests which return a cnclusin f natural causes The crner is nw empwered t issue a reprt t prevent future fatalities withut a frmal hearing (see belw) Duty t investigate This is similar t befre. The requirement fr a death t be sudden is remved. The 2009 Act refers t deaths in state detentin which nw (accrding t guidance prvided t crners) extends t immigratin detentin centres (and secure mental health hspitals, (nt that there was t much dubt befre!)). Hwever, it is clear that the duty is extremely likely (as is currently the case) t include mst deaths f peple detained under the Mental Health Act. The sectin reads as fllws: 1 Duty t investigate certain deaths (1) A senir crner wh is made aware that the bdy f a deceased persn is within that crner's area must as sn as practicable cnduct an investigatin int the persn's death if subsectin (2) applies. (2) This subsectin applies if the crner has reasn t suspect that (a) (b) (c) the deceased died a vilent r unnatural death, the cause f death is unknwn, r the deceased died while in custdy r therwise in state detentin. The crner is nw empwered t make preliminary enquiries t determine if the duty is engaged and an investigatin is required. The crner must attempt t identify the persnal representative r next-f-kin and keep them infrmed. The purpse f the investigatin N change here. The principle remains that if Article 2 f the Human Rights Act 1998 is engaged the crner needs t investigate the circumstances surrunding a death. Nt that it makes much difference in practice. The crner is still prevented frm determining matters f civil r criminal liability. 2
The prvisin reads as fllws: 5 Matters t be ascertained (1) The purpse f an investigatin under this Part int a persn's death is t ascertain (a) (b) (c) wh the deceased was; hw, when and where the deceased came by his r her death; the particulars (if any) required by the 1953 Act t be registered cncerning the death. (2) Where necessary in rder t avid a breach f any Cnventin rights (within the meaning f the Human Rights Act 1998 (c. 42)), the purpse mentined in subsectin (1)(b) is t be read as including the purpse f ascertaining in what circumstances the deceased came by his r her death. Interested persns There are sme additins t the list but the changes d nt affect the psitin f healthcare prviders. Transfers Investigatins are mre likely t be transferred then previusly. This can be dne by request f a senir crner r by directin f the Chief Crner. This can take place in rder t transfer an investigatin t a crner wh is mre experienced in handling a particular type f inquiry (e.g. majr disaster) but culd include transfer fr the cnvenience f the family. Althugh it nt likely t be a majr prblem, in time it culd lead t healthcare prviders, n ccasins, dealing with crners and attending inquests much further afield then befre. Pst-mrtem examinatins (PME) The crner has pwer t rder whatever type f examinatin he thinks necessary. This can include a partial pstmrtem r a scan. A PME need n lnger take place in the crner s district r neighburing district (a prvisin ften previusly ignred). Any suitable and apprpriate practitiner can be requested t cnduct the PME. It will remain t be seen if sme crners cntinue t use lcal hspitals even where the death ccurred in the hspital. There is cnsiderable pressure n crners t reduce the csts f PMEs; sme crners are gruping tgether t put the wrk ut t tender. After the PME The crner has three ptins: If the PME reveals a death by natural causes the investigatin can be discntinued The matter may prceed t inquest even if the PME reveals a death by natural causes (e.g. if there is an issue f neglect) T hld an inquest if: There is still reasn t believe death was vilent, unnatural r cause unknwn 3
The deceased died in state detentin If it is decided t hld an inquest, then it must nw be pened as sn as practicable. Suspending the investigatin r (if pened) the inquest Three things t bear in mind: The crner must suspend an investigatin if requested by a prsecuting authrity which may invlve a charge f hmicide r related ffence r where such a criminal charge has been brught The crner must suspend if there is a public inquiry int the deaths The crner may suspend where he feels apprpriate (e.g. Health & Safety Executive (HSE) investigatin) 4 The inquest Nw a part f the investigatin. The inquest must be technically pened in public. Hearings are t be in public unless there are reasns f natinal security r if it is in the interests f justice nt t s t d. Time is f the essence Increasingly crners are under pressure t deal with matters quickly fr the benefit f families. As a rule f thumb, inquests need t be cmpleted within six mnths frm the date the crner is made aware f the death. Inquests nt cmpleted within 12 mnths must be reprted t the Chief Crner, with an explanatin fr the delay. What sanctins might be impsed in apprpriate cases are nt clear, but the Chief Crner is clear that he will use his pwers if required. An inquest des nt have t be pened nw straight away but as sn as reasnably practicable nce the crner determines the duty t inquire int the death arises. This can be at any time during the investigatin, but is mst likely after the PME reprt is t hand. Setting the date Be prepared t get yur witnesses and staff lined up immediately. Dates fr future hearings shuld be set straightaway as far as pssible. Healthcare prviders and clinical staff are much less likely t receive sympathy frm crners if suitable and cnvenient dates are nt prvided immediately and upn request. The crner must ntify all interested parties within a week and make the arrangements fr the inquest t be in public. Pre-inquest hearings It is recgnised that these are an increasing feature. They remain discretinary but are suppsed t be in public. The Chief Crner is expected t issue guidance. There is n suggestin that they shuld becme a mre regular feature. Disclsure A thrny issue where, in the past, there has ften been cnfusin and lack f directin. 4
The basic principle is based upn transparency bth n the part f the crner and the interested parties. Healthcare prviders need t be prepared t face censure if it is the case that relevant dcuments r infrmatin have nt been sent t the crner. It is the duty f the crner t disclse dcuments but it is envisaged that crners will rely n the gd will f interested parties especially institutinal rganisatins. The fllwing pints need t be nted: The crner must disclse relevant dcuments t interested parties upn request. T sme this might be helpful in future. Disclsure shuld be by electrnic means, where pssible. The dcuments are set ut in rule 13: Disclsure f dcuments at the request f an interested persn 13. (1) Subject t rule 15, where an interested persn asks fr disclsure f a dcument held by the crner, the crner must prvide that dcument r a cpy f that dcument, r make the dcument available fr inspectin by that persn as sn as is reasnably practicable. (2) Dcuments t which this rule applies include (a) (b) (c) (d) any pst-mrtem examinatin reprt; any ther reprt that has been prvided t the crner during the curse f the investigatin; where available, the recrding f any inquest hearing held in public, but nt in relatin t any part f the hearing frm which the public was excluded under rule 11(4) r (5); any ther dcument which the crner cnsiders relevant t the inquest. The crner can refuse t disclse if (rule 14): There is a statutry r legal prhibitin (e.g. plice reprts) Cpyright issues arise and cnsent can nt be btained The request is unreasnable The dcument relates t cntemplated r actual criminal prceedings The crner cnsider the dcument is irrelevant t the investigatin and where the crner des nt intern t rely n it The crner cannt charge fr dcuments disclsed during an investigatin. The Chief Crner is expected t issue guidance shrtly. Crnial pwers t require evidence The Act makes it easier fr the crner t require disclsure f dcuments frm thers. The Act gives the crner the pwer t summn witness and require the prductin f dcuments. 5
In discussins, crners universally regard this as a pwer t require prductin f investigatin reprts and internal statements frm, and interview ntes with, staff. In effect, this mirrrs the civil curts pwers f disclsure/discvery. It is suggested the pwer shuld be used sparingly and as a last resrt. The crner has the pwer (where apprpriate) t direct evidence be given by vide-link r frm behind a screen. Written evidence: rule 23 The ld rule is expanded. The Chief Crner is encuraging crners t read evidence and admit dcuments t save mney and time and t avid witnesses being brught t curt unnecessarily. It may be that this shuld be suggested t the crner by interested parties mre frequently. The new rule reads as fllws: Written evidence 23. (1) Written evidence as t wh the deceased was and hw, when and where the deceased came by his r her death is nt admissible unless the crner is satisfied that (a) (b) (c) (d) It is nt pssible fr the maker f the written evidence t give evidence at the inquest hearing at all, r within a reasnable time; there is a gd and sufficient reasn why the maker f the written evidence shuld nt attend the inquest hearing; there is a gd and sufficient reasn t believe that the maker f the written evidence will nt attend the inquest hearing; r the written evidence (including evidence in admissin frm) is unlikely t be disputed. New ffences: beware! There are sme new ffences under the Act, including: Failure t cmply with a ntice requiring evidence t be given r prduced Altering evidence Preventing evidence frm being given Destrying r cncealing dcuments Giving false evidence The rules n cntempt f curt remain. Recrding prceedings The crner is nw bliged t take a recrding f prceedings and is bliged t prvide a cpy f the recrding t any interested party. Crners n lnger have t take a frmal nte and can rely upn the recrding; thugh it is anticipated persnal ntes will still be taken. 6
Submissins: rule 27 As befre, n party can address the crner n the facts. Submissins n law nly please! Juries Mst f us wh deal with inquests regularly knw that crners tend t avid juries, if pssible. Cst and time ften being cited as the reasns. The new rules emphasise that inquests must be held withut a jury except in limited circumstances. A jury must be summned if: The deceased died in custdy r state detentin and death was vilent, unnatural r cause unknwn (n lnger any need fr jury inquest where deceased died in custdy frm natural causes) Death resulted frm an act r missin f a plice fficer in executin f duty Death caused by accident, pisning r disease which must be reprted t a Gvernment department r inspectr There is a residuary pwer enabling the crner t call a jury if he believes there is sufficient reasn. Legal aid? N change here, nly in exceptinal circumstances will this be available and where applicants qualify financially. As an aide memire (and nt part f the new rules) if requested t d s, the Lrd Chancellr can authrise the funding f representatin in individual cases. The Funding Cde sets ut the fllwing alternative grunds f granting this exceptinal funding: There is a significant wider public interest in the applicant being legally represented at the inquest Funded representatin fr the family f the deceased is likely t be necessary t enable the crner t carry ut an effective investigatin int the death, as required by article 2 f the Eurpean Cnventin n Human Rights (the right t life). These tests are very difficult t satisfy. Over 90 per cent f requests are nrmally turned dwn. The cnclusin f the inquest The inquisitin (the frm which the crner r jury used t cmplete) is replaced by a dcument entitled The Recrd f the Inquest. The term inquisitin is cnsidered ld fashined and is ablished. The term verdict is cnsidered t be t cnjure up ideas f criminal prceedings and will be termed the cnclusin. Shrt frm cnclusins and narrative cnclusins can be made. Hencefrth: cnclusins will be set ut n the recrd f the inquest. As befre, n cnclusin can be framed as t appear t determine issues f criminal (n behalf f a named persn) r civil liability. The crner (r jury) must make a determinatin (t be recrded n the recrd f the inquest) n the fllwing questins (as befre): 7
Wh the deceased was When the deceased came abut his r her death Where the deceased came abut his r her death Hw the deceased came abut his r her death (t include the circumstances in Article 2 cases) I am sure we will all get the hang f it shrtly! 5 After the inquest The crner can charge fr disclsure f dcuments and tapes after the inquest. Appeal? The riginal right f appeal t the Chief Crner cntained in the Act has been repealed. The existing means f redress and challenging decisins remains by way f judicial review prceedings. It remains unlikely that healthcare rganisatins will wish t incur the expense r additinal publicity incurred by this. Reprts t prevent future deaths: Schedule 5 (f the Act) reprts There have been ne r tw changes t beef up what used t be knwn as rule 43 reprts. They are nw in Schedule 5 f the Act and have a statutry basis. It is wrth nting the fllwing pints which arise frm the new regulatins: The crner is nw under a duty t reprt n any actins he feels might prevent future deaths. The reprt has t g t the persn r rganisatin with pwer t take actin. This replaces the ld pwer whereby crners may make such a reprt. Therefre it is n lnger a matter f discretin. The duty arises at any time during the investigatin. A reprt culd be made even if there is n inquest and if an urgent prblem is identified, befre the inquest is held. The requirement t respnd t such a reprt is als strengthened in that any actins prpsed have t be accmpanied by a timetable fr implementatin. The time limit fr a respnse remains at 56 days. Reprts and respnses are sent t the Chief Crner wh may publish further. As we knw, such reprts are already sent t ther interested parties (including the family) and the CQC (fr healthcare prviders). It is likely that crners will be under pressure t issue mre reprts as this is seen as an integral part f prtecting the public and gd gvernance. The Chief Crner might fllw up reprts with relevant Gvernment departments. Althugh the chance t make submissins might be reduced, if reprts are made befre a hearing, the key advice remains the same. Healthcare bdies are well advised t identify key risks and issues as sn as pssible t demnstrate t the crner that actin has already been taken. 8
6 Cnclusin In sme respects, and in the immediate future, there may be little change as t what is ften cmmn practice. Disclsure is nw cmmn and schedule 5 reprts increasingly cmmn. There is n dubt, hwever, that inquests will be managed like, and take n ever mre the appearance f, a civil trial. While blame and fault are still nt in issue, the pressure will be n healthcare prviders t prepare the evidence and t assist the crner with all prper requests. We can expect crners t set strict deadlines and timetables and demand cmpliance with hands-n case management. Crners are likely t examine witnesses (thse that are called) ever mre clsely. Finally, when it cmes t investigating schedule 5 issues, yu can expect mre crners t adpt a practice which is becming increasingly cmmn. While healthcare prviders might have excellent investigatin reprts in place; cmpleted actin plans signed ff by the bard and,a senir manager available t explain the changes t the crner, but what abut ur staff at the cal face? Will they be able t satisfy the crner thse changes and imprvements t prevent future deaths and prblems have been put int practice? In additin t excellent actin plans, we need t make sure that they are implemented and cmmunicated t the staff respnsible, and that they are putting the changes int rutine practice and can cnfirm this t the crner in the witness bx. Fd fr thught. 7 What shuld yu d nw? As the Chief Crner issues guidance and the rules take shape, we will keep yu up t date with develpments. Make sure yur team knws that the rules are changing. Cntact Stuart Knwles r any f ur experienced Inquest team (see belw) t discuss and help guide yu thrugh the changes. If yu wuld prefer mre in-depth training, we can put tgether a sessin fr yur team. Remember t check ur ther free legal resurces at the Healthcare Resurce Centre. If yu d nt yet use ur free, innvative Tailred Inquest Service, cntact us t learn mre. 8 Cntact Stuart Knwles, cnsultant. Tel: 0121 456 8461. Email: stuart.knwles@mills-reeve.cm 9 Legislatin The Crners (Inquests) Rules 2013 Crners and Justice Act 2009 Mental Health Act 1983 Human Rights Act 1998 9
Our inquests team Jill Masn Partner T +44(0)121 456 8367 jill.masn@mills-reeve.cm Duncan Astill Partner T +44(0)1223 222477 duncan.astill@mills-reeve.cm Jill Westn Assciate T +44(0)121 456 8450 jill.westn@mills-reeve.cm Kevin Duce Assciate T +44(0)121 456 8263 kevin.duce@mills-reeve.cm Ruth Creed Assciate T +44(0)121 456 8323 ruth.creed@mills-reeve.cm Sarah Garrd Assciate T +44(0)1603 693291 sarah.garrd@mills-reeve.cm Philip Grey Assciate (Barrister) T +44(0)1223 222463 philip.grey@mills-reeve.cm Katrina McCrry Assciate T +44(0)121 456 8451 katrina.mccrry@mills-reeve.cm Jacqueline Haines Senir Slicitr T +44(0)121 456 8453 jacqueline.haines@mills-reeve.cm Lrna Shastri-Hurst Senir Slicitr T +44(0)121 456 8400 lrna.shastri-hurst@mills-reeve.cm Alisn Maw Senir Slicitr T +44(0)121 456 8454 alisn.maw@mills-reeve.cm Laura Jlley Senir Slicitr T +44(0)1223 222448 laura.jlley@mills-reeve.cm Darryn Hale Slicitr T +44(0)1223 222530 darryn.hale@mills-reeve.cm Lrraine Mseley Paralegal T +44(0)121 456 8293 lrraine.mseley@mills-reeve.cm J Newprt Paralegal T +44(0)121 456 8203 janne.newprt@mills-reeve.cm www.mills-reeve.cm T +44(0)844 561 0011 Mills & Reeve LLP is a limited liability partnership authrised and regulated by the Slicitrs Regulatin Authrity and registered in England and Wales with registered number OC326165. Its registered ffice is at Funtain Huse, 130 Fenchurch Street, Lndn, EC3M 5DJ, which is the Lndn ffice f Mills & Reeve LLP. A list f members may be inspected at any f the LLP's ffices. The term "partner" is used t refer t a member f Mills & Reeve LLP. The cntents f this dcument are cpyright Mills & Reeve LLP. All rights reserved. This dcument cntains general advice and cmments nly and therefre specific legal advice shuld be taken befre reliance is placed upn it in any particular circumstances. Where hyperlinks are prvided t third party websites, Mills & Reeve LLP is nt respnsible fr the cntent f such sites. Mills & Reeve LLP will prcess yur persnal data fr its business and marketing activities fairly and lawfully in accrdance with prfessinal standards and the Data Prtectin Act 1998. If yu d nt wish t receive any marketing cmmunicatins frm Mills & Reeve LLP, please cntact Suzannah Armstrng n 01603 693459 r email suzannah.armstrng@mills-reeve.cm 10