No PFD – what about a Paragraph 37 Letter?

Inquests often reveal matters that are of concern but which are unlikely to give rise to a risk of future deaths and so fall outside the reg. 28 “Report on Action to Prevent Future Deaths” provisions (the ‘PFD report’). Yet it is often overlooked that where the duty to make a PFD report does not arise, the coroner still has another tool in their public health kit and may nevertheless draw attention to a matter of concern arising during the investigation by writing a letter expressing that concern to the relevant person or organisation who can act upon it.

Known as a ‘Paragraph 37 Letter’ such a step is proposed and approved by the Chief Coroner at paragraph 37 of his Guidance No. 5 (Reports to Prevent Future Deaths); yet it is only rarely used.

The author recently represented bereaved parents at an inquest in Manchester following the death of their new-born baby (AC) following which the Coroner chose to write a Paragraph 37 Letter. AC was born with an abnormal connection between her oesophagus and the trachea, for which she required an urgent operation. She was born prematurely and was very small. At the outset of the operation, the surgeon inserted instruments into AC’s mouth. AC’s endotracheal tube became dislodged and by the time AC’s airway had been secured again she had developed pneumothorax bilaterally, with likely intra-abdominal bleeding, which led to her deterioration and subsequent death.

AC had Edwards Syndrome, this condition, together with her other comorbidities, meant that her life expectancy was already short. The Trust’s ‘High Level Investigation Report’ identified failings but did not consider these to be ‘care delivery problems’ because they did not alter the ‘outcome’ as AC was likely to have died within a short period in any event.

The Coroner stated his intention to write to the Trust Chief Executive, raising three matters of concern:

  • that the Trust’s interpretation of ‘outcome’ was misleading and did not help families;
  • that minutes were not made of morbidity and mortality meetings by the Paediatric Anaesthetic Department;
  • that there should be a mandatory requirement for all paediatric surgeons to attend the team meeting prior to surgery.

The Chief Coroner’s Guidance states that the coroner should discuss their intention to write a Paragraph 37 Letter with interested persons at the inquest and the correspondence could be copied to them. What many families want from an inquest is to know that steps have been taken to make things better for others in the future. In circumstances where the evidence gives rise to concerns, but does not suggest that there is a risk of future deaths, those representing families might remind the coroner that there is the option of a Paragraph 37 Letter.  In this case AC’s parents said that the letter, together with a PFD report meant that AC, in her short life, had left a legacy of improved care for other neonates.