On two occasions in the past two months, coroners in England have flexed their powers and issued fines to an NHS Trust and the clinical lead of a therapeutic community.
The coroners used Schedule 5 of the Coroners and Justice Act 2009 ('the Act'). This allows coroners to require the production (disclosure) of existing relevant documents or items by a deadline, provide evidence in a witness statement, or require a person to attend court to give evidence on a specified date. Unreasonable non-compliance can result in a fine up to £1,000.
In the inquest into the death of Sophie Bennett, the jury heard that some of the staff at the therapeutic community where Sophie resided believed that the 'clinical lead' who had a 'doctorate' held a medical qualification, which he did not. After he failed to attend the inquest, the coroner issued him with a fine in May 2019.
Following an investigation into the death of Anthony Turnidge, the coroner for the Isle of Wight issued a fine to her local NHS Trust, reportedly for "failing to disclose investigations before the coroner closed inquiries into hospital deaths" after agreeing that there was a back-log of investigation. However, the details of what was requested, the timeframes and whether the investigation reports actually existed to be disclosed to the coroner, are not yet known.
These appear to be the first fines issued by coroners to the NHS or individuals working in the healthcare sector. As these become more widely known, an increase in the number of fines being issued is likely.
The power under Schedule 5 is limited:
- The coroner can direct an individual to provide evidence in a witness statement, or to produce a document if it is in that person's 'custody or control'. Sometimes a draft version will satisfy the coroner. We have experience of a coroner attempting to use this power to require a healthcare provider to undertake an investigation and write an investigation report, but if the document does not exist it is unlikely that the power can be used in this way (although the person can be ordered to attend court and give live oral evidence)
- Any document or item required must be relevant to the inquest (although 'relevant' is interpreted in a broad manner)
- Some evidence cannot be required to be produced (e.g. if it could not be compelled to produce that document in a civil court, or if it is incompatible with human rights (or any other relevant EU obligation) or public interest immunity (PII))
- The notice must include defined information as required by the Act (e.g. including that a fine of up to £1000 can be issued if the individual "fails without reasonable excuse" to do what is required by the notice) and
- There is a non-statutory form for Schedule 5 which is used by most coroners, which usually includes a time limit in which to comply and a time limit for making representations for an extension, or providing a reason why the notice cannot be complied with.
If you receive a Schedule 5 notice:
- Consider it immediately, particularly the deadline.
- If you cannot comply, inform the court in writing as soon as possible and provide your reasons (and chase for a response).
Each coroner has a duty to act reasonably and rationally (but with a wide discretion), and the notice must comply with the law. However, arguing with the coroner about a technical flaw in the notice might not be the best approach overall. Issuing a fine is understood to be the last resort of a coroner, and will usually follow previous expressions of dissatisfaction; take notice of these and take steps to improve your professional relationship with the coroner.
If your relationship with the coroner is poor, such that you think that they are likely to feel a fine for your organisation is warranted (perhaps because of previous disagreements about your disclosure, or perceived delays in you providing evidence), obtain legal advice as soon as you receive a Schedule 5 notice.
The inquest process is in place to investigate appropriate deaths fully, ascertain and record key facts and allay public suspicion about a death. It is essential that disregard for the inquest investigation should be capable of being penalised, and it is useful that coroners have some 'teeth' even before the inquest has been heard. This must be balanced with the increased pressures and expectations placed upon healthcare providers, and hopefully fines for NHS organisations will remain a last resort.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.