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 on the Duty of Candour and inquests is summarised below.
Why a s.13 application will not get round the Judicial Review time limits
Jones v HM Coroner for Gwent and others [2015] EWHC 3178 (Admin)
The Divisional Court this week made clear the limits of s.13 Coroners Act 1988 when seeking to overturn and inquest. Where Judicial Review is the correct vehicle to challenge the decision of a Coroner then the failure to bring such a claim in good time should not be circumvented by an application for a fresh inquest under s.13.
Presumed consent or ‘body snatching’?
Elberte v Latvia ECtHR App. No. 61243/08 13 April 2015
Next month the Human Transplantation (Wales) Act 2013 comes in to force. Described as the most significant piece of legislation passed by the Welsh Assembly, it will make Wales the first UK country to introduce a ‘soft opt-out’ system for organ and tissue donation. From 1 December 2015 a deemed consent system will operate for organ donation where the presumption will be that people aged 18 or over, who have been resident in Wales for over 12 months, want to donate their organs at their death, unless they have specifically objected.
This Act has laudable objectives and is anticipated to save countless lives through a 25% rise in the availability of organs for transplant.
However, those who favour an opt-in system warn of the excesses that can happen if state control and oversight of such a system is lax. Such risks were shown in stark detail in a recent European Court of Human Rights decision involving Latvia, where shocking abuse of a ‘presumed consent’ system was revealed.
Fresh inquests required where issues regarding dangerous appliances had not been addressed
Smith v HM Coroner for Cornwall [2015] EWHC 3475 (Admin)
The important role a coroner’s inquest has to play in elucidating factors relevant to the death in a way that might then allow for the greater protection of the wider public is exemplified by this recent decision of the Divisional Court. Inquests into two deaths from carbon monoxide poisoning were overturned where full information regarding the knowledge and correction of a design fault in the gas cooker thought to be responsible had neither been available nor explored.
Flexible Fairness at Inquests
Wilson v HM Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin)
“Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability” – Burnett LJ
Mr Wilson, a consultant cardiothoracic surgeon, applied for judicial review of part of the coroner’s conclusions in relation to the deaths of three of his patients having undergone cardiac surgery at his hands.