Coroner fines NHS trust CEO for failure to disclose investigation reports

A salutary reminder to NHS trusts and foundation trusts in relation to coroner inquests and their duties.

The Isle of Wight NHS Trust chief executive, Maggie Oldham, has been fined £500 after staff investigating a number of deaths failed to disclose investigation reports to coroner Caroline Sumeray.

Reports in the Health Service Journal, National Health Executive and BBC news indicate that Sumeray’s criticisms range from producing inadequate reports to failing to notify the coroner of ongoing serious incident investigations, inexperienced investigators, administrative delays and a backlog of inquests at the NHS trust.

The fine was issued in March and papers from the April board meeting said the chief executive had met with the Isle of Wight coroner on a “number of occasions” to address her “concerns that administrative problems in the Trust’s processes have caused delays to the inquest process”. The paper added that : “The Trust has overhauled its approach, improved training and is recruiting additional and new staff.”

Duties relating to coroner inquests

Coroner Sumeray used the powers conveyed on coroners under the Coroners and Justice Act 2009 to issue the Isle of Wight NHS trust with a notice to produce investigations reports and fine it. This case serves as an important reminder for hospitals of their duties around coroner inquests.

In general, NHS trusts and foundation trusts and individual clinicians must share all relevant information with coroners to ensure that they can carry out their statutory duties to investigate certain deaths. Under Schedule 5 of the Coroners and Justice Act 2009, the coroner has the power to compel the production of documents or other evidence by giving written notice. Failure to comply with the notice without reasonable excuse may attract a fine of up to £1,000.

Under Schedule 6 of the Act, it is an offence for a person to “do anything that is intended to have the effect of (a) distorting or otherwise altering any evidence, document or other things that is given, produced or provided for the purpose of an investigation…or (b) preventing any evidence, document or other thing from being given, produced or provided for the purposes of such an investigation, or to do anything that the person knows or believes is likely to have that effect.”

Additional offences worth noting are intentionally suppressing or concealing a relevant document, altering or destroying such a document or giving false oral evidence. These offences apply where there is an intention to distort the evidence and they are punishable by a fine and/or imprisonment for up to 51 weeks.

A reminder of this duty featured in one of the recommendations in the Morecambe Bay investigation report – namely, that a national protocol should be drawn up setting out the duties of all trusts and their staff in relations to inquests (chapter 8, recommendation 30).

Readers may recall that NHS Improvement published a note on the current legislation and guidance in May 2016 which set out a reminder of trust and foundation trust duties in relation to coroners’ inquests. 

But not forgetting the duty of candour obligation imposed on hospital trusts under Regulation 20 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 20 imposes a legal duty of candour on trusts to act in an open and transparent way where a notifiable incident has occurred. Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them.

Comment

While use of the coroner’s powers under the Act are not a regular occurrence, repeated failures to comply with your coroner’s duties may result in more than a slap on the wrist. You risk reputational damage for your hospital organisation not to mention your hospital’s relationship with your local coroner.

But note, while the Coroner can require you to disclose documents that you have – they cannot compel you to create documents. Our key message is know your duties relating to coroner inquests.

Do get in touch with Duncan Astill if you have concerns about your investigation processes or an inquest – we have a friendly and experienced inquest team ready to help.

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