How does the NHS Duty of Candour impact upon inquests?

Serjeants’ Inn Chambers recently hosted an evening with Sir Robert Francis QC to discuss and reflect upon the impact of the Duty of Candour, as recommended in the 2013 Francis Report, upon practice in a variety of healthcare areas. Cecily White and Paul Spencer considered the impact in the Coronial jurisdiction of the rather snappily named “Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014” (i.e. the Duty of Candour regulations). Their paper, reproduced here, is summarised below.

Although the CJA 2009 brought in new schedule 5 disclosure powers for Coroners there is nothing additional in the statutory Coronial regime which directly refers to the Duty of Candour nor is a Coroner’s inquest a ‘regulated activity’ under the new regulations. However, the Duty of Candour regulations are having an effect upon the way hospital Trusts conduct their own investigations which has implications for subsequent Coronial investigations.

Where there is a death, normally Trusts undertake a 48 or 72 hour review before commencing their SUI/RCA process that can then take some weeks. Now the Duty of Candour (‘DoC’) regulations require the Trust to notify the patient or relative that an incident has occurred of moderate or severe harm and report upon their DoC investigation within 10 days of it being finalised, often before the SUI is completed. A key question is whether the documents uncovered during that DoC investigation will be disclosable to a Coroner? The DoC documents are unlikely to be privileged since their production does not relate to the conduct of litigation. Whilst it might still be argued that some DoC documents are not disclosable because they do not fall within the scope of the Coroner’s fact-finding inquiry, in practice, Trusts may find themselves under pressure to make all of their DoC investigation documents available to Coroners and hence bereaved families at an inquest.

Where an internal healthcare professional not directly involved in the incident, such as the person responsible for the department or area where the incident occurred, has expressed a view on what has happened, the obligation of openness and transparency is likely to require the Trust to share that information at the very least with the family of the bereaved. In such circumstances there could be little justification for then withholding that same information from a Coroner.

A Coroner’s request for the disclosure of documents that attract privilege, such as an expert report commissioned by a Trust concerning an anticipated civil claim, could of course still be resisted on the basis of legal professional privilege. However, the privilege attaches to the document itself and not necessarily to the information within it. The information within the privileged document will be known to the Trust which, when complying with its DoC obligations, cannot simply ignore that information. The duty to be candid is an on-going one and so a Trust is arguably under a continuing duty to disclose new information to the family of a deceased patient where the information supplements or contradicts the Trust’s initial DoC statements, even if that information arises from a privileged report. On the same basis one can foresee wily Coroners now asking a Trust representative who is giving evidence on oath at an inquest “Have you learned anything as a result of on-going inquiries since the death that suggests your initial DoC letter and conclusions may not be the full story? If so, what?”. The response “Yes, but I will not tell you because its privileged” is unlikely to hold water.

If the underlying DoC documents are now disclosed to coroners, the implications could be significant since they are likely to be more candid and more contemporaneous than even SUI reports. The experience for witnesses giving evidence at inquests could be more daunting if they are to be cross-examined on the contents of the Duty of Candour conclusions and any letter of apology. 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. Disclosure to the Coroner could also lead to these documents being considered in public.

Although it is not the function of an inquest to police a Trust’s compliance with its Duty of Candour obligations, should it become apparent during the course of the Coroner’s inquiry that there may have been a failure to comply, one can foresee how a reg 28 ‘PFD’ notice about that failure could follow. After all, as one purpose of the Duty of Candour is to learn from adverse incidents, it is but a short step to a Coroner concluding that a failure to be fully candid about the circumstances of a death might put others at risk of the same adverse incident re-occurring.