How to go about challenging a PFD report: Not by Judicial Review

R (Dr Siddiqi and Dr Paeprer-Rohricht) v Asst. Coroner for East London [2017] Admin Court CO/2892/2017

Making a report that may prevent future deaths (a ‘PFD report’) under reg. 28 of the Coroners (Investigation) Regulations 2013 is an important but often misunderstood coronial power.

The issuing and receipt of a PFD report entails no more than the Coroner bringing some information regarding a public safety concern to the attention of the recipient. A PFD report is not punitive in nature, despite some interested persons construing it as such. It engages no civil or criminal right or obligation on the part of the recipient other than the obligation to respond to the report in writing within 56 days. The nature and content of that response is wholly a matter for the recipient. In their response the recipient can choose to agree or disagree with matters within the report or rebut any determination of the facts that is expressed by the Coroner. The recipient can object to or accept the invitation within the PFD report to take action, and could even choose to respond by expressing the view that no action is required to allay the Coroner’s unwarranted concerns.

The appropriate remedy for those wishing to take issue with the content of a PFD report is to respond to the report.

Against that background it is unsurprising that a recent attempt to Judicially Review a Coroner’s decision to issue a PFD report has fallen at the first hurdle

The JR application

The Claimants, who were two GP partners, sought to challenge the Assistant Coroner’s decision to issue a PFD report following the inquest into the death of one of their patients. The evidence at the inquest had given rise to a concern on the part of the Assistant Coroner that there had been a shortcoming in the system operated at the GP surgery in respect of how patients’ A&E discharge summaries were received and acted upon. Although this had not been in any way causative of the death under investigation the Coroner was concerned that systemic shortcomings might put other lives at risk.

The Claimants considered that the factual basis upon which that PFD report had been issued was incorrect, and that with further exploration the Coroner could have discovered that any shortcoming in noting and acting upon the deceased’s hospital discharge summary was not a problem with the GP practice’s systems or procedures as a whole, but an error by an individual Locum GP.

The decision to apply for Judicial Review seems, however, to betray a fundamental misunderstanding of the nature and status of a PFD report.

The remedy being sought from the Defendant coroner, that he should withdraw his PFD report, was not one available to him in law. The PFD report having been made, the Coroner’s reg. 28 duty was now complete and he was functus officio. Even though the Coroner accepted that, in the light of the additional information now provided by the Claimant, this was an isolated individual error and not a systemic issue, the discovery of this new information came after the inquest had ended and after the report had already been made and so could not now negate the reg. 28 duty to issue the report in the first place.

Mr Justice Lavender unsurprisingly therefore dismissed the permission application. In a succinct decision he held that the Assistant Coroner had no power to withdraw a PFD report once made and that the appropriate remedy for those wishing to take issue with the content of a PFD report was to respond to the report as provided for in part 7(1) of schedule 5 CJA 2009. There had been no procedural unfairness in the Assistant Coroner’s decision.

Whilst this is merely a permission decision on the papers, rather than a fully argued case, it is hard to see how Judicial Review could ever be an appropriate route of challenge to a PFD if there is some evidence to support the Coroner’s concerns. It is perhaps inevitable that PFD reports will not be based upon a comprehensive understanding of all the relevant facts, as this was never the intention behind them. A Coroner has no power other than to make a report in the hope of bringing what the Coroner has learned to others’ attention; thereby ensuring that those who may be able to do something to protect lives are not left in ignorance. But the recipient will, usually, be better placed than the Coroner to further investigate the fuller picture. The Coroner cannot require any particular response nor demand that particular, or indeed any, action is actually taken. If the Coroner has got it wrong then all that needs to be done is to say so. The Chief Coroner is able to publish responses and those who feel badly misunderstood or concerned at wrongful implications in the PFD report can always take the option of making a full and detailed response in rebuttal.