Introduction

Robert Francis QC (as he then was) opened chapter 22 of his February 2013 inquiry report in the following way:

“Openness, transparency and candour are necessary attributes of organisations providing healthcare services to the public. There is strong evidence based on the actions in particular of the Trust and the Care Quality Commission (CQC) that insufficient observance of these requirements has been prevalent..."

The Trust made inaccurate statements about its mortality rates, information about serious concerns was not passed to the regulator, and a report critical of the care provided was not disclosed to the coroner. Frank and accurate information about the cause of death of patients was not universally conveyed to relatives. Exaggerated claims of success were made to the public.

[…]

Insufficient openness, transparency and candour lead to delays in victims learning the truth, obstruct the learning process, deter disclosure of information about concerns, and cause regulation and commissioning to be undertaken on inaccurate information and understanding.There is a requirement not only for clinicians to be candid with patients about avoidable harm, but for safety concerns to be reported openly and truthfully, and for organisations to be accurate, candid and not provide misleading information to the public, regulators and commissioners.Current requirements for openness, transparency and candour do not cover uniformly and consistently the areas in which these are needed.”

The Department of Health (DH) accepted that the position outlined above could no longer be tolerated and as has been widely published Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 came into force in respect of Trusts and doctors late last year and in the spring was rolled out for care and nursing homes and other providers.   

The position in the Coroner’s Court

Currently there is nothing in the Coroners & Justice Act (“CJA”) 2009 or the Coroners Rules1  that directly refers to the Duty of Candour; nor is a Coroner’s inquest a “regulated activity” under the new regulations. As many readers know there are wide disclosure powers contained in the CJA 20092,  although our collective experience suggests these are relatively seldom used.

Despite the absence of statutory changes to the inquest regime, the Duty of Candour regulations are having an effect on the way hospital trusts conduct investigations. 

Where there is a death, normally Trusts undertake a 48 or 72 hour review before commencing the SUI/RCA process.  However, before the SUI is completed, they will have had to have undertaken and completed a Duty of Candour (‘DoC’) investigation within a 10-day timeframe.3

Disclosure

A key question is whether the documents uncovered during the DoC investigation would be disclosable to a Coroner. 

The disclosure of documents arguably attracting privilege, such as an expert report commissioned by a Trust, could be resisted on that basis (i.e. legal professional privilege).  The underlying Duty of Candour documents are unlikely to be privileged since their production does not relate to the conduct of litigation. 

On one view these documents would not be disclosable on the basis that they do not fall within the scope of a Coroner’s fact-finding inquiry and the statutory questions s/he has to answer under section 5 CJA 2009.  

However, in practice there may be an inclination on the part of Trusts – whether as a result of pressure from a local Coroner, or through a desire to maintain a longstanding relationship – to make these documents available to the Coroner.  We can foresee the representatives of families at inquests requesting that these documents be disclosed.  

Moreover, many organisations who have a strong connection with a local Coroner’s Court may be loathe to question a Coroner’s jurisdiction to make enquiries regarding DoC obligations and instead consider it prudent to address any revealed Duty of Candour failures head-on.  In many instances this may be the prudent course since breach is not only a matter of concern to a Trust and its regulator but also has professional conduct ramifications to doctors and nurses who may be in breach of GMC and NMC rules.

This sort of informal cooperation between Coroners and local public bodies appears to have been envisaged by the Chief Coroner, who wrote in his guide to the CJA 2009:

“Coroners should not be too hasty to exercise these powers.4   They should only be used where necessary and where other methods have failed.  Much can be achieved by agreement with, for example, local hospitals, on regular procedures for the production of witness statements, medical notes and reports.” 5

If the underlying DoC documents are disclosed, the implications could be significant since these documents are likely to be more candid and more contemporaneous than the more nuanced SUI reports, which may take weeks or months to reach publication.

We see two major implications.  The first is that the experience for witnesses giving evidence at inquests where DoC documentation has been disclosed is likely to be more daunting, since they could be cross-examined on the contents of these documents (whether produced by themselves or colleagues) on the basis that they contain more contemporary and therefore more accurate information than witness statements or reports produced subsequently.

If, for example, there has been a patient safety incident and as part of the DoC investigation a Trust disclosed what ‘had gone wrong’ and apologised in writing, but then during the inquest a Trust witness gave a differing account, would the family be able to adduce the Duty of Candour letter and put the conclusions and apology to the witness? We believe this is possible.  Those representing Trusts may want to ensure that all Trust employees called as witnesses are fully aware of the Trust’s position following its DoC investigation.  

Secondly, whilst the family of the deceased or injured patient may have had sight of a letter of apology as part of the DoC investigation, the underlying documents will likely not have been made available to them.  The disclosure of these documents to the Coroner could lead to their disclosure to the family, and to their consideration in a public forum – the inquest – in a way which has not occurred before.

Prevention of Future Deaths (PFD)

On one view it is not for Coroners to investigate whether the Duty of Candour has been complied with as part of their ordinary coronial function.  Whilst these obligations are of course relevant to the healthcare providers who are subject to them, and any internal lessons to be learned, they arguably fall outside the scope of the Coroner’s fact-finding inquiry. 

Where, however, it becomes apparent during the course of the Coroner’s inquiry that there may have been a failure to comply with the Duty of Candour, interesting questions could be raised. 

For example where there has been a death in a care home as a result of failures by staff (e.g. leading to the development of pressure sores or sepsis) and the Coroner learns that there had been a previous notifiable safety incident leading to a death in similar circumstances, but no investigation was undertaken, the Coroner might have concerns that the failure to comply with the Duty of Candour obligations, and to learn lessons from similar incidents, poses a risk of future deaths occurring.    

It would also seem that if the underlying DoC documents are disclosed, the chances of a Coroner coming across circumstances giving rise to concern in relation to future deaths, such as to engage the duty under Schedule 5, para. 7 to the CJA 2009, are likely to be increased.

Ultimately it is for Coroners to determine what is relevant to their inquiry, and we can foresee considerable variation between individual Coroners in their approach to the Duty of Candour.  

We imagine that a number of Coroners will, as these provisions become more widely understood, openly question witnesses about apparent failures to comply with Duty of Candour obligations.  

The Mid Staffs inquiry also considered information sharing.  Following the publication of the Francis report and its consideration by DH, the protocol for information sharing has been strengthened.  We believe that some Coroners will be proactive and seek to communicate suspicions of a breach of the Duty of Candour to the regulator, CQC or Monitor.  

Observations from practice

We have observed situations at court where Coroners engage in discussions, prior to hearings in open court, with local safeguarding bodies, the police, CQC and others.  These meetings suggest that there is likely to be closer working between Coroners and the various agencies engaged in deaths being investigated.  It is notable that the CQC have recently asked that PFD reports issued by Coroners also be sent to the CQC.

Therefore notwithstanding the absence of black letter changes to the inquest regime, we can observe and/or anticipate changes in culture and practice of the kind Sir Robert envisaged in his report.

 

1 The Coroners (Inquests) Rules 2013 or the Coroners (Investigations) Regulations 2013, supplemented by the guidance published by the Chief Coroner.
2 Under Schedule 5, paras. 1 and 2, to the CJA 2009.
3 NHS Standard Contracts require notification within 10 days and for the investigation to be completed promptly.
4 I.e. the powers to require evidence to be given or produced under Schedule 5 paras. 1 and 2 to the CJA 2009.
5 Para. 133.