Medical malpractice policies are most commonly associated with the defence or settlement of negligence claims or, perhaps, assistance in regulatory/disciplinary proceedings. However many policies also offer assistance to insured individuals or organisations who find themselves in the ever-changing world of inquests. Why have inquests changed so much over recent years though, and how could insurance assist an involved insured?
The new "world order" of the inquest
Consider, for a moment, the serious and complex questions and issues arising from the Grenfell and Hillsborough tragedies.
Different investigations, "accountability" and high public expectations
While most inquests into a death do not involve such high profile disasters, every death arising within a workplace, a health and care provider or any institution is a personal disaster for the family and the insured requiring careful and expert handling to get it right.
Changes to the Coronial system in the last five years have led to a real change in the way inquests are conducted. Coroner’s hearings are increasingly complex and can last for days (if not weeks). A jury may well be involved. There is no doubt that Coronial law has, itself, become a specialism requiring a deep understanding of the process and requirements of the Coroner. Further, the facts, family concerns and the response to the death will be subject to forensic analysis in court and that’s in addition to inquiries that may be made by the police or the Health & Safety Executive (HSE). In many cases, inquests into a death can involve issues of human rights and lead to much more wide ranging hearings. All open to the gaze of the public.
Why is it so different?
It all started with Dr Harold Shipman, who needs no introduction. Shipman was found guilty of 15 murders undetected by the Coronial process. Then there were the "national scandals" of deaths at Mid-Staffordshire Hospitals and Morecambe Bay Hospital. It seemed clear, something was wrong with the way deaths were being investigated. Events, such as these, have wrought changes to public policy around governance and assurance. Systemic and institutional ‘failures’ are to be rooted out and changes made. Further, there has been a change in public perception and expectations. As individuals, we expect "answers" and accountability, if not someone to blame. In reality, it may matter little that an inquest is not a "trial" and blame or fault is not in issue.
The response to a death is also subject to scrutiny. The Coroner will want to know what’s been done to prevent further deaths. Is it enough? Finally, and no less importantly, the Coronial rule book has changed significantly in the last 10 years. The process is fast (unnervingly fast) with a "cards on the table" approach. Organisations and individuals are required to disclose all relevant paperwork and provide all the evidence. Not just on demand but voluntarily, up front. Failure to handle evidence properly can lead to criminal sanctions. It is easy to see how this information will be scrutinised by families of the deceased, their lawyers, regulators and, in many cases, the media.
But there is more to it than that. Costs involved at inquest have risen dramatically. Legal representation for families is very sophisticated and lawyers will use the process to search out evidence of liability. To avoid personal cost, insurance against this risk is essential. Professional and legal support is crucial for navigating the complexities and ensuring the right response and evidence is provided.
Managing the risk
Of course, as individuals, any death is a shock to us and to be taken seriously. No one denies families should have answers and, if appropriate, recompense. It is vital the insured’s involvement is transparent and assists the Coroner to reach a timely and proper conclusion. It is important that justice is done to the family and the process. Equally, it is important to do justice to yourself and the witnesses.
It is essential any insured individual or organisation manages the process to make sure:
- A competent and proper response is provided which covers relevant issues
- Any liability is appropriately identified and managed early
- Matters are investigated carefully, and with a sound evidential base, to identify action required to reduce the risks of similar deaths in future
- Reputational and media issues are sensitively handled and give a fair account
In many cases, there are allied regulatory risks. Investigations following a serious incident often involve the police, the HSE and other regulators. Co-ordinating and making sure each investigation gets the best evidence, can significantly reduce exposure to risk and censure (both to the benefit of the insured and insurers, depending on the circumstances).
Accordingly, as you might expect us to say, help in handing these matters requires expert legal assistance that understands the complexities of all these issues. Nevertheless, we think it’s true and having insurance that assists with those associated costs has to be a benefit too.