Planning and an organised approach to inquests can reduce much of the stress.
'I've just found out that we have an inquest on next week, can you help?' A not uncommon call to a lawyer in our health practice from a hospital or health service. As with most things in our busy work and personal lives, planning and an organised approach can reduce much of the stress for all involved, including relatives of the deceased. This article outlines some practical steps to avoid the need to make these last minute calls.
While over 18,000 deaths are reported each year to a Coroner around Australia, the number of inquests is a very small percentage, being less than 1,0001 Due to their nature, the often lengthy time between death and the inquest, unresolved issues with relatives of the deceased, potential media interest and the mix of medico-legal issues involved, most hospitals and health services approach coronial inquests with a sense of apprehension. Because they do not happen that often for an individual hospital or health service, the possibility of an inquest tends to be forgotten and preparation starts far too late.
What Is An Inquest?
An inquest is not a court hearing with parties presenting evidence and a judge finding in favour of one of the parties. It is inquisitorial in nature, with the objective of determining the identity of the deceased and the date, place, manner and cause of their death. Inquests are not bound by the rules of evidence and apart from major high profile inquests, the Coroner is principally assisted by a police officer from a coronial investigation unit. However, where there is a dispute about the cause of death, an adverse event prior to death or concerns held by relatives about the care of the deceased, inquests can be a very stressful, formidable and adversarial process for clinicians and hospital and health service managers.
The key to better managing coronial inquests is preparation. Preparation involves the following steps:
- Risk assessment to determine if an inquest is likely, remembering that in certain circumstances an inquest is mandatory.
- Allocation of responsibility for a potential inquest to a senior manager.
- Identification of potential issues and key persons involved in the care of the patient and gathering of relevant information and documents.
- Review of the care of the deceased.
- Obtaining a copy of the post mortem report and toxicology reports.
- Liaison with the police assisting the Coroner and the Coroner's office to determine if an inquest is to be held.
- Proactive approach to resolving issues of concern held by relatives of the deceased. In many cases, the inquest is to be held because of these concerns.
- Once a decision is made by the Coroner to hold an inquest, close liaison with the police assisting the Coroner to identify key issues, agree on reports required, witnesses to attend and likely timeframes.
- Advising your insurer and deciding what legal assistance is required and whether the hospital or health service should seek leave to be a party at the inquest.
- Liaison with nurses' industrial association and medical defence organisations where nursing and clinical staff will be providing statements or giving evidence.
- Obtaining a copy of the formal police brief to the Coroner.
- Briefing of staff who will be witnesses.
- Preparation of draft recommendations (if any) that should be presented to the Coroner.
- Determination of a media strategy.
- Briefing of senior management and, where required, health authorities and/or Minister's offices.
- Ensuring a suitable person is able to attend the inquest to support staff and legal representatives (if engaged) and to follow up urgent needs for information or documents.
Narrowing the issues and reducing the need for witnesses are important objectives. An appropriate review of the care of the deceased, resolution of issues or concerns held by relatives and addressing issues raised by police assisting the Coroner can often lead to a decision by the Coroner that an inquest is no longer required.
Obtaining a copy of the formal brief to the Coroner when available is critical. This brief will list which clinicians and other experts the police have utilised, contain copies of the statements obtained, list the witnesses and outline the issues of concern and conclusions formed by the police. It is not uncommon to find one or more new or unexpected issues after reading the brief. Finding these in advance rather than on the day of the inquest is much less stressful.
Briefing of staff who will be called as witnesses is important. For many staff it will be their first time in a Coroner's court. While the duty of a witness is always to tell the truth, many staff do not understand the process. The briefing can also emphasise the importance of answering the question that is actually being asked, the value of brevity and when unsure of what is being asked, not to guess but simply say, 'Sorry, I don't understand the question'. An experienced lawyer can be a big help in this briefing.
Issues of privilege and privacy law compliance need to be considered when medical records, files and other documents are being reviewed and requests for information from the Coroner's office and industrial and/or legal representatives of nurses and clinicians are received. Some adverse event review documentation may not be able to be provided to the Coroner due to statutory privilege. Other documents with personal information concerning the deceased may require a formal subpoena before being able to be provided. Early involvement of a lawyer can assist in ensuring that legal professional privilege is protected.
The number of steps listed above reinforces the need to allocate the co-ordination and management of the hospital or health service's response to a death reported to the Coroner to a senior manager. Lawyers who have 'hands on' knowledge of hospitals and health services and the Coronial inquest process bring a unique combination of skills to this response, ensuring that the interest of the hospital and health service are protected and staff are supported while facilitating and supporting the objective of the Coroner to determine the manner and cause of death.
1. Based on information held in the National Coroners Information Service database (www.ncis.org.au) and inquest figures for 2004/05 as reported in Gibson F, 'Legal aid for coroners' inquests' (2008) 15 JLM 587 p594.
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