Med-mal: Inquests and closer ties to regulatory action - DAC Beachcroft

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Med-mal: Inquests and closer ties to regulatory action

Published On: 1 December 2015

If a healthcare professional or provider has provided care or treatment which may have contributed to a patient's death, they are likely to be drawn into an Inquest. Involvement in an Inquest can be time consuming for healthcare providers and can impact resources, especially if a large number of staff are called to give evidence. 

Families and their lawyers continue to try to use Inquests as a means to gather evidence for a civil claim, despite the fact that the issue of liability is outside the remit of the Coroner. In addition, there is also the potential that an inquest will attract publicity and reputational damage for an insured especially if a Coroner is critical of the treatment provided or their response to any lessons learned after the event.

Expert legal advice can guide healthcare providers and professionals through the coronial process, with a view to minimising any findings made at the Inquest, and seeking to avoid exposure to a subsequent civil claim – which is of particular importance to med-mal Insurers too.

To date, regulatory action by the CQC has not been particularly aligned with the Inquest process.

However, the CQC and the Coroner's Society of England and Wales have now approved a "Memorandum of Understanding", which points to the potential for greater co-ordination in the future. The Memorandum addresses:

  • The exchange of information between the CQC and Coroners (particularly where the regulator has undertaken an investigation arising from a patient's death);
  • Possible adjournment of inquests in circumstances where the CQC is undertaking a prosecution; and
  • Establishing a default position that the CQC will receive a copy of any Regulation 28 Report and response "where concerns about care or treatment provided by a registered provider have been identified during or at the conclusion of an inquest".

Of particular importance is paragraph 30 of the Memorandum, which provides that Coroners agree "to notify CQC as soon as is reasonably practicable of any inquest where concerns exist about the care or treatment received by the deceased". In effect – this will amount to a double-check mechanism for the notification of relevant deaths to the regulator.

We see that the Memorandum will have two particular key effects – which will impact on healthcare providers and their med-mal Insurers:

  • An additional possible trigger point, potentially leading to inspection or other regulatory action at an earlier point in the inquest than would have usually been the case if the requirement was to focus on simply sharing PFD reports; and
  • An increased potential for the CQC to seek to become actively involved in an inquest (potentially by inviting the Coroner to exercise his or her discretion to enable the regulator to participate as an Interested Person, thus allowing it to receive full disclosure and to participate fully in the hearing).

As a result, healthcare providers and their Insurers will need to ensure that if they are involved in an inquest their response is carefully managed not only to minimise exposure to a civil claim but also regulatory action.