Mariko Wilson, Personal Injury and Clinical Negligence team
On 12 November 2009 The Coroners and Justice Act 2009 received Royal Assent. The Act includes the first major reforms of the coroner system for over 100 years as well as provisions aimed at improving the experience of victims of crime and witnesses who come into contact with the judicial system.
In terms of its effect on coronial procedure, the Act replaces the existing framework for the investigation of certain deaths, previously governed by The Coroners Act 1988. It also reforms the law in relation to the certification and registration of deaths. Part 1, Chapters 1 to 7 of the Act deal with coronial matters and death certification.
Why the need for reform?
The Shipman Inquiry (2003) and the Fundamental Review of Death Certification and Investigation (2003) revealed a number of problems and inconsistencies in the services provided to bereaved families as well as the process of death certification. It was also found that a lack of leadership and training for coroners, coupled with a shortfall in medical knowledge, meant that coroners were failing to provide a good service to bereaved families and the wider public. The inadequacy of the current system was highlighted by the Shipman case, and the failure of the system to identify and isolate the criminal activities carried out by Dr Shipman over a period of many years.
What are the main changes brought about by the Act?
Key changes include provisions to alter the structure of the coronial system as well as the appointment system for coroners. Rigid boundaries between coroner areas have been relaxed to enable the service to operate in a modern and flexible way and the Act provides for the appointment of a Chief Coroner who will be responsible for establishing national standards. The Chief Coroner will also oversee the development of a charter for the bereaved which sets out the services bereaved families can expect to receive.
Annual report to the Lord Chancellor
The Act also places a duty on the Chief Coroner to provide an annual report to the Lord Chancellor addressing, amongst other things, levels of consistency between coroner areas, as well as the number of investigations that have been ongoing for over a year. Further, the Act also provides for the independent inspection of the coroner system by court inspectors, with findings to be reported to the Lord Chancellor.
Training Regulations
The Chief Coroner will also be responsible for training regulations applicable to coroners, coroner’s officers and other associated staff. In addition to this, to be eligible for appointment as a coroner, a person must now have possessed a relevant legal qualification (barrister/solicitor) for a period of 5 years. To be eligible for appointment as Chief Coroner a person must previously have held the position of a Circuit judge or a judge of the High Court.
Right of Appeal
One of the most fundamental changes to the coronial system introduced by the Act enables an interested party to appeal to the Chief Coroner against the decision of a senior coroner on a wide range of matters. Amongst other things, an interested part may now appeal a decision as to whether to investigate a death or not, a decision as to the presence/absence of a jury at an inquest and any finding as to cause of death. The Act also introduces a slightly wider definition of an “interested person”, in particular including any person whom the coroner “thinks might have sufficient interest”.
Evidence
In addition to this, the Act confers extensive powers on coroners to require evidence to be given or produced at or in advance of an inquest. As before, a senior coroner may by notice summon a person to give evidence at an inquest, but additionally, they may now also summon persons to produce any documents in their custody which are relevant to an inquest. They may also be summoned to produce for inspection, examination or testing any item in their custody deemed relevant to investigations. A senior coroner may by notice also require a person to provide evidence in the form of a written statement. This is extremely useful for the lawyers instructed by the parties and can shed light on circumstances that may be unknown by the parties due to lack of documentation or instructions from their respective client’s.
Seizure & Powers of Entry
If a senior coroner conducting an investigation has reason to believe that there may be anything of relevance to the investigation on a particular piece of land, the act also confers powers of entry, search and seizure on senior coroners, so long as prior authorisation of the Chief Coroner is obtained. A senior coroner may therefore enter and search any land specified in the authorisation. Authorisation may only be granted by the Chief Coroner if authorisation by the landowner it is not practicable to obtain, permission to enter and search the land has been or is likely to be refused, or where the purpose of a search would be frustrated by obtaining prior authorisation of the landowner.
Once lawfully on the land in question, the coroner may seize anything of relevance to the investigation and may inspect and take copies of any relevant documentation.
Notably, the coroners’ powers of entry, search and seizure are not limited to land within the coroner area for which they appointed and may be exercised over any piece of land in England or Wales.
Death Certification
The introduction of a new death certification system under the Act aims to ensure that adequate scrutiny is made of the circumstances surrounding every death occurring in England and Wales, and to unify rules relating to the certification process whether a body is buried or cremated.
Currently, for all deaths, the doctor who attended the patient in their final illness must complete a Medical Certificate of Cause of Death (MCCD). The MCCD is then passed to the Registrar who will issue a certificate for burial if they are happy with the details contained in the MCCD. Unfortunately, as the Registrar is not medically qualified, this does not provide adequate safeguards against criminal activity and malpractice and in addition to this, results in many unnecessary referrals to the coroner. By contrast, where a body is to be cremated, additional certification is required by a second and third medical practitioner before the body is released for cremation.
The new death certification system under the Act stipulates that the MCCD should still be completed by the medical practitioner responsible for the deceased person’s care. The MCCD should then be passed to a Medical Examiner attached to the clinical governance team of a Primary Care Trust for scrutiny and investigation if required. The medical examiner will have access to the deceased’s medical records and the clinicians involved in the deceased’s care where necessary. If the Medical Examiner is satisfied that all is in order, he or she may then authorise burial or cremation. To be eligible for appointment as a Medical Examiner a person must have been a registered medical practitioner for the previous five years, and must have been practising as such during that period. Medically qualified personnel will therefore scrutinize all MCCD’s in future, removing the responsibility for this and for authorising burial from non-medically trained Registrars.
The new system will also improve the surveillance of data collected regarding deaths and it is hoped that the new link with local clinical governance through the use of Medical Examiners will mean better use may be made of information gleaned as to deaths occurring in that area.
How are these changes relevant to legal practitioners?
It hoped that with national leadership provided by a new Chief Coroner, and improved training and guidance for coroners, the quality of investigations and inquests will be improved and delays and inconsistencies between coroner areas will be eradicated. Fewer investigations will be frustrated by a lack of evidence following the introduction of powers requiring evidence to be given or produced as well as powers of entry, search and seizure. This will enable coroners to carry out more comprehensive investigations into deaths within their area. The new requirement for coroners to hold a relevant legal qualification may also result in a more uniform breed of coroner and thus a more consistent service.
In practice, many families will have taken legal advice, or sought legal representation ahead of any inquest, the outcome of which often dictates the viability of a claim. With the introduction of The Coroners and Justice Act 2009, and the charter for the bereaved the delays and confusion many families have faced as part of the process in the past may be eliminated, thus reducing the need for legal representation and guidance at this stage. Furthermore, more efficient coronial process will reduce the delay in bringing a case, where appropriate, and may result in the availability of more comprehensive information, providing legal representatives with a better platform for their investigations.
The new appeals process may provide families dissatisfied with the outcome of an inquest with an alternative avenue as a pose to immediate legal action. In turn, access to further information via an appeal may dissuade families from taking unnecessary legal action or even add substance to their claim.
In addition, the careful scrutiny of all MCCD’s by a medical examiner will reveal malpractice or criminal activity more readily, possibly resulting in an increase in negligence cases, as well as offering insight into the incidence of such activities.
Mariko Wilson is a trainee solicitor in Anthony Gold's personal injury team.
