'The patronising disposition of unaccountable power'

A headline grabbing report title. This month, The Right Reverend James Jones KBE published his report into the experiences of the Hillsborough families to ensure that their “perspective is not lost”.

You might have thought this related purely to policing and football. However there are lots of points that will be of interest to the NHS too.

The report is comprised of five chapters and chapter two covers inquests which will be of most interest to readers. It quotes from Dr Bill Kirkup who was a member of the Hillsborough Independent Panel and, of course, chair of the Morecambe Bay investigation into maternity services. 

It also sets out submissions from Yorkshire Ambulance Service NHS Trust. Dr Kirkup commented that defensiveness or institutional self-protection was a widespread feature of the second set of inquests. He noted that Yorkshire Ambulance Service sought to establish at every opportunity that an earlier emergency response could have made no difference.

Concerns are also expressed in this chapter about disclosure. Not just in respect of Hillsborough, but reference is made to a prison inquest this year where problems were noted by a coroner (see paragraph 2.74).

The report refers to the Public Accountability Bill. Readers will recall that this was introduced into Parliament by Andy Burnham. This draws on the establishment of the statutory duty of candour in the NHS and also seeks to address the issue of public funding for family legal representation at inquests. 

The Bill creates a mechanism through which a person who believed that an individual or public body had breached its duty of candour could apply to the relevant court or inquiry to request that the duty was enforced. It also seeks to establish an offence of intentionally or recklessly misleading the public, media or court proceedings. Finally, the Bill would require public bodies to establish a Code of Ethics and whistleblowing process. 

Chapter five sets out 25 points of learning. The most relevant to readers will be points 1,9,10,11,13 and 19 which we set out below:

• Point of learning 1: A Charter for Families Bereaved through Public Tragedy is proposed. This is made up of a series of commitments to change, each related to transparency and acting in the public interest. He encourages leaders of all public bodies to make a commitment to cultural change by publicly signing up to the Charter (see page 95).

• Point of learning 9: This relates to “proper participation” of bereaved families at inquests at which a public body is to be represented (see pages 98 – 101). There are four strands to it: 

  o    Publicly funded legal representation for bereaved families at inquests at which public bodies are represented. The costs to be borne by those government departments whose agencies are frequently represented at inquests. 

  o    An end to public bodies spending limitless sums providing themselves with representation which surpasses that available to families. 

  o    A change to the way in which public bodies approach inquests so that they treat them not as a reputational threat but as an opportunity to learn, and as part of their obligations to those who have died and to their family. It is recommended that relevant Secretaries of State make clear to public bodies for which they are responsible that, for example, they should approach the issue of disclosure of relevant material in an open and timely manner prior to the inquest and should not unreasonably seek to limit an inquest’s scope or prevent the summoning of a jury. It is also recommended that public bodies should not argue against coroners producing Prevention of Future Deaths (PFD) reports; Secretaries of State should hold Chief Executives accountable for the way in which their organisation acts at inquests; and additional training may be required for solicitors and barristers.

  o    Changes to the inquest procedures and to the training of coroners so that bereaved families are truly placed at the centre of the process. This includes allowing a photograph to be displayed at an inquest and the creation of an Inquest Rule Committee to provide ongoing advice to the Chief Coroner. The report notes that the Chief Coroner is due to publish guidance on the issue of disclosure and suggests points that this should cover.

• Point of learning 10: Evaluating coroners’ performance. Some readers may like the sound of this! At a basic level, it is suggested that standardised feedback forms are given to interested persons and juries at inquests.
• Point of learning 11: Learning the lessons. The report notes that PFD reports are under-utilised and that the circumstances under which they are made varies considerably. Observation is made that distribution is too limited and that there is no follow up to ensure an organisation’s response to the issues identified is adequate.
• Point of learning 13: The “Hillsborough Law”. Reference is made here to the draft Public Authority Accountability Bill but also notes work being undertaken by the Law Commission aimed at reforming the offence of Misconduct in Public Office. Once this is complete, it is suggested that consideration should be given by the Government to the Bill.
• Point of learning 19: Right to information. This includes families to be told that if the death involves a public authority then it is highly likely that the organisation in question will be represented by lawyers at the inquest.

A lot of food for thought.

Jill Mason, Partner and Stuart Knowles, Consultant Solicitor