When is it deemed necessary for the coroner to issue a Prevention of Future Deaths report?
Whilst the key focus of any inquest is typically the question of 'how' a person came by their death, for many interested persons involved, a central concern is whether or not the coroner will issue a Prevention of Future Deaths report, (PFD report), to seek to ensure that changes are made to prevent further deaths in the future.
PFD reports are made pursuant to paragraph 7(1) of Schedule 5 of the Coroners and Justice Act 2009 and Regulations 28 and 29 of the Coroners (Investigations) Regulations 2013. A coroner has a statutory duty to act and produce a report where:
- A senior coroner has been conducting an investigation into a person's death, (this will normally be after an inquest has concluded, but not necessarily); and
- After considering all the documents, evidence, and information something is revealed within the investigation which gives rise to the coroner having concerns that future deaths will occur, or will continue to exist, in the future; and
- In the coroner's opinion, action should be taken to prevent
those circumstances happening again or to reduce the risk of death
created by them.
If all three of the above apply, then the presiding coroner must notify the matter in a PFD report to a person or organisation who the coroner believes may have the power to take such action required. As such, these reports are an important mechanism to improve public health, welfare, and safety.
Practicalities of issuing a PFD report
The Chief Coroner's Guidance No5 makes it clear that is not for a coroner to make recommendations as to what specific action should be taken, but simply to draw attention to any areas of concern for the person/organisation to consider. A PFD report does not have to be limited to matters which are causative of the death in question.
The recipient of the PFD report must then respond in writing within 56 days of receipt setting out the action that has been taken, is proposed to be taken or, alternatively, must set out why no action is proposed. It is also worth noting that all PFD reports and responses are available to the public on-line and, in addition, the coroner will also send them to any other interested persons who may find them useful or of interest.
So, whilst PFD reports are not intended to be a punitive measure, the issue of a PFD report can have far-reaching effects not only in terms of the resources required to respond to it but reputationally as well. As such, it is important that consideration is given by interested persons to preparing robust submissions against the requirement to issue a PFD report in all cases where there is a risk of a PFD report eventuating.
PFD reports in practice
Whilst annual statistics for 2022 are yet to be published, 440 PFD reports were issued by coroners across the UK in 2021. Examples of organisations that received these reports include NHS England, the Department of Health and Social Care, HM Prison and Probation Service and even the Archbishop of Canterbury.
Despite the significant number of PFD reports issued every year, it remains very rare for a coroner's decision-making around a PFD report to form part of a judicial review or other similar higher court scrutiny of a coronial decision.
However, the recent case of R (Diarra Dillon) v HM Assistant Coroner for Rutland and North Leicestershire  EWHC 3186 (KB) was a notable exception.
The Dillon Case
The claimant, Nile Dillon's family, challenged the coroner's refusal to issue a PFD report following the inquest into Mr Dillon's death whilst he was a prisoner at HMP Stocken.
By way of background, in March 2018 Mr Dillon, (who suffered from asthma and other serious allergies), called for assistance by pressing the bell in his cell. The attending officer noticed that he was experiencing breathing difficulties but did not enter the cell because he was not aware that he had discretion to enter if there was an immediate risk to life. He instead radioed the custodial manager and advised that Mr Dillon was struggling to breathe. Approximately 8 minutes later more officers arrived to assist who entered the cell with a lack of first-aid training. A 'Code Blue' was then called over the radio signalling a medical emergency. This triggered a call to the ambulance service and paramedics arrived 20 minutes later, but sadly Mr Dillon was pronounced dead shortly afterwards.
The inquest into Mr Dillon's death took place in October 2021 and the jury returned a narrative conclusion. The jury determined that no action or inaction by the officers involved would have affected the outcome or contributed to Mr Dillon's death.
Subsequently, after hearing detailed evidence and submissions about the PFD duty, the coroner decided not to issue a PFD report. The claimant decided to commence judicial review proceedings on the following two grounds; (i) that the coroner was irrational to conclude that the threshold for making a PFD report had not been met and (ii) that she erred in her approach by fettering her discretion and misapplying the law.
In December 2022 the claim was dismissed by the court, (Simler LJ, Farbey J and HHJ Teague, the Chief Coroner), on both grounds. On the first ground, the court found that the coroner's decision was lawful and she was entitled to conclude that there was no need for action to be taken to prevent future deaths as the threshold for a PFD report was not met. The coroner was entitled to conclude that the key issue was not whether every patrol officer had first aid training but whether the prison's emergency response as a whole was adequate. In addition, the coroner was right to consider the Prison Service's 'commitment to take action' in respect of spot-checking a prison officer's knowledge of Code Blue processes. On the second ground, it was determined that coroners are entitled to consider what can practically be achieved.
What we can learn from the Dillon case
Whilst fact specific, this judgment reaffirms the Chief Coroner's Guidance No 5 which provides that in making a decision about whether or not to draft a report coroners should consider the current position. If a potential PFD recipient has already implemented appropriate action, or expressed a commitment to take certain steps, the coroner may not need to make a report.
It also acts as a reminder of the highly subjective element to the PFD legislative framework and confirms that coroners can exercise their judgment as to what remedial action is practicable. The case also highlights that the appeal courts will be reluctant to interfere with coroners' judgments as to whether or not a PFD report should be issued and underlines the importance of coroners giving detailed reasons for their decisions.
In addition, the case should end the debate in relation to whether interested persons can address the coroner on the subject of PFD reports.
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.