Hello, My name is nine Maloney. I'm a barrister. Hardwick specializing in Kinkel Negligent and personal injury law. This is a webinar looking at inquest in clinical negligence cases. The purpose, often inquest, is set by statute. Under section five of the Karam is injustice and 2000 and the purpose often inquest is to determine essentially four questions who the deceased waas when the deceased died, where the deceased died and how the deceased came by their deaths. It is the investigation and determination off the last question that is almost interest generally to prospective claimants and their lawyers investigating it's clinical negligence case. In cases where article to the E. C H R is engaged. The question off how the deceased died is expanded upon under subsection two section five onto the next slide when, with an inquest be held, not every fatality, whether it's possible make medical negligence involved will result in an inquest being held on average just under half of all deaths and referred to the coroner for the current to start an investigation. That referral occurs when a coroner's informed that the body of the person is within their area and that there is reason to suspect that either the deceased died a violent or a natural death or the cause of death is unknown, or where the deceased died in the custody off the state A and he are relevant to death arising from possible medical negligence in 2017 it was argued, in fact, that see might apply in a death in I c. U and then it just hostile and that death in an intensive care unit would be death in the custody of the state. But the Court of Appeal held in that 2017 case that it wasn't that doesn't apply. What custody of the state really means is deaths in prison or police station or an immigration center. If an inquest isn't held in circumstances where the lawyer or the family consider that the test under Section 12 is met, then the corner come can be asked by lawyer all the family to investigate ans waving an inquest look does a cornet do while cardinals themselves are independent judges and whilst they used to be a mix off qualified doctors and lawyers nowadays, any new Leopold quote coroner's must be qualified noise. They have support from coroner's officers who helped the administrative side off their role on may also deal directly with three families. But on the whole, when you look in the comparison with mainstream judges that staffing support corrida is much less, Coram is are under a duty to conduct whatever enquiries seem necessary to determine if they are to investigate the death. These enquiries include things like postmortem reports on discussions with possible witnesses. If they do decide to investigate, that's got to be done as soon as practicable under Section one of the 2000 and nine act. From there, they conduct an investigation, which may progress to a full hearing With live witnesses, The coroner has a power to demand that certain documents are produced or that evidence is called, including witnesses. This can also include the coroner commissioning their own expert evidence, which they will found from their central fund. And that's often a useful device with perspective clinical negligence claims. Of course, the key duty or the coroner is to answer the four questions or the key questions to enable the deft to be registered, including the most important question how, with cease died, they can also make a public report with the aim of preventing future deaths if the coroner identifies any short comings in the working practices off clinical negligence cases. Hospitals. A inquest is an inquisitorial process is expressly not unlike a typical making to trial and adversarial. And whilst that can be re best questioning all the witnesses that air cooled, cross examination per se is not committed, and the coroner must not appear to determine questions off criminal or civil liability. But whilst there are limitations on what a current it can do and confined, an inquest is a useful opportunity for clinical negligence practitioners to carry out a detailed investigation of the claim and to elicit evidence often or evidence from potential key witnesses from the NHS trust. An inquest where Article two is not engaged has a narrower scope to answer the questions of who, when, where in hell these are Sometimes referred to is Jamison inquests, where Article two is engaged, sometimes referred to as Middleton inquests. The court, in determining how the deceased died, will consider in what circumstances the deceased came by his or her death, and by what means. So our scored two of the EEC HR imposes the following duties. Firstly, the substance of duties, which is subdivided into 21 is what's called the negative obligations. That's to refrain from taking life, and that's pretty straight forward. There shall be no death penalty in any subscribing state, for example. But secondly, the positive obligations and that's a duty to take appropriate steps to safeguard the lives of people within the state's control. On that comprises both general duty and an operational GT. The general duty requires the state and state bodies toe have appropriate systems in place. The operational duty arises when there is a really an immediate threat to a person's life, and both are potentially relevant to clinical negligence cases. Secondly, the investigative or procedural GT's and that's is an obligation to investigate deaths that are arguably caused by breach of a substantive obligation. For this to be engaged and to be satisfied it's sufficient to hold a Middleton inquest. Teoh discharge that obligation notes in there the word arguably so for there to be requirement toe hold in Article two inquest. The family were interested. Person doesn't need to prove a breach of a substantial duty. Just that one is arguable. The general juicy under Article two, maybe breached where the care provided by a state health professional is grossly negligent. But that's highly unusual after court to may also be breached where there is a system failure, but that's generally exceptionally difficult to show in a clinical negligence type case. The case of Humber Stone concerned the next excessive time spent in dispatching an ambulance before child experienced a fatal asthma attack. This didn't amount to a system failure, however, the Court of Appeal in Wonderstone state of that system failings also include the failure of a state or state body to provide suitable facilities or adequate staff or appropriate systems of operation. In the case off Fernandez and Portugal, the brief x off the case, which are relevant, concern a death from meningitis following a polyp ectomy operation. There were concerns in the case as to hell. Meningitis had been contracted in hospital as well as treated and contracting bacteria. Causing meningitis is a rare recognized risk off the politics me procedure. In 2015 European Court of Human Rights gave a judgment that indicated the errors of judgment and miscommunication in a state hospital could engage Article two in 2015 European Court of Human Rights gave a judgment that indicated that errors of judgment and miscommunication within a state hospital could be sufficient to engage Article two. But the Grand chamber held differently. They help it as to the substance of duty. The Lever court got it wrong. They said that only very exceptional circumstances in X or emissions off state health care providers would engage state responsibility under the substantive name of Article two. They held that four factors must be present for there to be a substantial breach. They're set out on the slide in more detail, but essentially the position remains that an error must go beyond mere ordinary medical negligence. And I would be a system error, Um, as was set out in case of Humber Stone or for the operational limit thesis started duty, whether it is a denial of treatment in the face off Rheal and immediate risk to life. Onda decision off Fernandez and Portugal was recently applied by the Divisional court of the High Court in a case called Parkinson, and this is the unexpected consequence of the case of Fernandez is that the court upheld that in that case, there had been a breach of the procedural him of Article two. They held the investigation of the Portuguese state into the death have not been adequate or conducted tenuously. A breach was held on effects even though there had been consideration off. The issues by the criminal and civil courts as well as the state regulator on the facts of this case in domestic investigations went on for years and were narrow in their scope. And the key part all the judgments is this quote from paragraph 236 7 They said that where there is a crime, if they see arguable claim of the chain of events possibly triggered by an allegedly negligent at that may have contributed to the death of patients in particular. If a navigation of the hospital acquired infection is concerned, the authorities may be expected to conduct a thorough investigation into the matter, the court considers. No such examination was conducted in the instant case in which the domestic courts, instead of carrying out every rule assessment, approached the chain of events as a succession of medical incidents without paying particular attention as how they may have related to each other whilst this still might be considered to be more questions, announces from the case of tremendous. As I see it, there are two important consequences. The first is there. It was held that there's a greater duty tow. Have a wider ranging investigation where there is arguable negligence, possibly particularly the more so in cases involving hospital acquired infections. Although it's difficult to see why that should be given elevated status about any other form of negligence. But secondly was held in that case that the investigation was too narrow in its scope and that there have been undue focus on direct causation, an insufficient consideration of possible causes off the death and they're in supply. It was also mentioned that consideration off consent issues should be given as there was a rare risk of meningitis from floor pet me, which had not been disclosed. Appreciate so practicing practitioners working on inquest in the UK course should ensure the NHS trust serious untoward incident reports cover all of those issues in a sort of detail expressed by the court in Fernandez. On the main take away is that even if there is not even inarguable breach of Article two. So it's to engage in Article two inquest. It's generally accepted that a death where there may have been even ordinary Finkel negligence involved should require an inquest or the wider scope, then a standard Jamison inquest, but not necessarily so wide for full Middleton inquest on to next slide. The question of whether and after or to inquest is going to be held in any case can be determined at any time, even at the very conclusion off the final inquest hearing. We'll go the first time and often the best time to consider it or user lead be in the P i. R or the pre inquest review. The P I. R will be held in advance of the final hearing the corrida, or usually set an agenda in advance and give it to the parties and at the P i R. They will get rulings on the issues on and make any decisions or directions required for the final hearing. The P I. R is usually a good opportunity to determine whether Article two applies what issues are to be within the scope of the inquest issues about disclosure of key documents, but it our any missing medical records or whether the serious untoward incident report goes far enough questions off expert evidence. When the coroner is going to instruct and cool their an expert the number of witnesses and the timetable ing of final hearing, and also whether the inquest will be held with a jury, there are specific rules attached that which are outside the scope of this weapon up. The general rule is it is not usual for Jerry. Inquest be held in Clinical Negligence Type Inquest Before the most recent reforms, Corneau's conclusions were made. His bed. It's there are a host or recognize short form conclusions that may satisfactorily explain how a deceased came by their death on the rules provide. They should be used if it's possible to do so. In cases where there is suspected medical negligence, however, it's more common and particularly so of Article two is engaged for the coroner to use a narrative Benedict and that gives the Cardia Mawr freedom to frame a conclusion in a few sentences. There's also the possibility that a conclusion will include a writer. Matt Let, writer of neglect is not a free standing conclusion in itself. It must go onto one of the short form conclusions or onto a narrative conclusion if there is to be a finding of not let two things are required. Firstly, that there was a gross failure to provide basic medical attention to someone in a position off dependence and secondly that the that let materially contributed to the patient's death. The final slide in this webinar is on costs and whilst there are no costs awarded it inquest themselves, it's possible to recover the legal costs, representing and then interested person at an inquest in a subsequent civil plane. In the case of Douglas and J. Um, let's on your screens the main takeaways to death. If it's an article to inquest, you will likely be awarded some costs and participation in the inquest should then be successful in your civil claim, even if there has been extensive admission of liability made before the inquest, if it's not an article to inquest, that's much less likely. If there's been no admission, a tool and then you succeed in the civil claim than your prospects off recovery of your inquest time and costs are very good, even if it's not an article to your case. So those are the main issues arising in a clinical negligence inquest
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