Deaths Scrutiny: Change Edges Closer

Published 19 June 2018

It's been a long time coming, but the government has just published its response to the consultation it ran two years ago on significant changes to what needs to happen after a person dies.

Many of the changes put forward in the consultation are being put on hold, but two key aspects - relating to medical examiners and notification of deaths to coroners - have been given the go-ahead.

What's changing?

• Medical examiner system (non-statutory, initially) to be rolled out nationally from April 2019, making all deaths subject to independent scrutiny;
• Notification of deaths to the coroner to be governed for the first time by statutory criteria (plus accompanying guidance), although there is no specific timescale for this as yet

We look at what is being proposed and its likely impact.

Context

Ever since the Shipman Inquiry, there have been multiple consultations and much discussion about how to improve systems for certifying/scrutinising deaths, but little happening in practice.

The government's recent response to the consultation it ran on this back in 2016 suggests we may now be a step closer to some (but by no means all) of the proposed changes becoming a reality.

Medical examiner system

A proposed system of medical examiners to provide independent oversight/review of all deaths not referred to a coroner has been on the cards for years. A number of pilot medical examiner schemes have been run since 2008, but progress towards wider roll-out has stalled.

However, the Learning from Deaths agenda has recently been very much the focus of government and regulator energies in trying to improve patient safety. This has led to a renewed push towards introducing a medical examiner system nationally.

The key aims are to:

• Improve the quality/accuracy of medical certification of cause of death;
• Provide bereaved families with greater transparency/opportunity to raise concerns;
• Ensure appropriate referrals to coroners/avoid unnecessary referrals;
• Support local learning/improvement via reporting on clinical governance related matters;
• Tie-in with related systems such as the Learning from Deaths Framework.

Primary legislation to enable the introduction of medical examiners has been in place since 2009 and draft regulations setting out how a statutory medical examiner system might work have been in existence for some time too. These envisage medical examiners being appointed and paid by Local Authorities and the system being funded via a new fee to be paid by the deceased's family.

However, the government has confirmed in its consultation response that it will not be going down the statutory route envisaged in the draft regulations for the time being. Instead, a system based on the current pilots will be rolled out nationally from April 2019.

The consultation response is thin on detail about exactly how the medical examiner system will work in practice - e.g. How will medical examiners be appointed? Who will want to be medical examiners (e.g. GPs, hospital consultants, doctors below consultant grade?), How many medical examiner posts will there be per coroner's jurisdiction? How will they address the complexities of different specialisms/healthcare settings? How will conflicts of interest be avoided?

What we do know so far, however, is that:

• It will initially be a non-statutory system, to be placed on a statutory footing at some later date;
• It will (at least initially) be funded via existing cremation fees plus an element of central government funding;
• Medical examiners will be appointed from within the NHS;
• A National Medical Examiner is to be appointed - e.g. to provide guidance for medical examiners.

Notifying deaths to the coroner

Currently, the duty to report certain deaths to the coroner has no statutory footing. Instead, medical practitioners have to take a view on whether to report a death based on the scope of the coroner's duty to investigate - i.e. where he/she has reason to suspect the death was violent or unnatural, where the cause of death is unknown or where the person died in state detention.

There has been talk for some years of introducing statutory criteria to clarify for medical practitioners when they should be notifying a death to the coroner. Successive Chief Coroner annual reports have expressed frustration at the lack of progress with this: "…the lack of statutory or other clear criteria for medical practitioners reporting deaths to coroners… has created uncertainty and inconsistency" (2016/17 annual report).

Could change now be a step closer to happening? According to its consultation response, the government plans to press forward with making the legislative changes needed to bring into effect regulations setting out the circumstances in which deaths must be notified to the coroner.

The plan is to dust off the draft Notification of Deaths Regulations which were first drawn up some years ago.

Under these regulations, the following 10 categories of death will have to be notified to the coroner:

• poisoning, use of a controlled drug, medicinal product or toxic chemical;
• trauma, violence or physical injury (intentional or otherwise);
• related to any treatment or procedure of a medical or similar nature;
• self-harm (intentional or otherwise)
• injury or disease received during/attributable to course of deceased's work
• notifiable accident, poisoning or disease
• neglect or failure of care by another person
• the death was 'otherwise unnatural' (catch-all)
• no attending practitioner/nobody available to certify cause of death in reasonable period
• identity of the deceased unknown

Despite some consultation respondents expressing concern about aspects of this list, the government has indicated that it will remain largely unchanged, albeit that some points may need further explanation/clarification in the accompanying guidance (see below). It seems to us that the 'neglect' category in particular could cause confusion because this is a coronial 'term of art' governed by case law and it would usually only be after hearing all the evidence at inquest that a coroner can determine whether 'neglect' contributed to the death.  Citing 'neglect' from the start as the reason for notifying the coroner may therefore be seen as pre-empting the coroner's decision on that.

To help medical practitioners decide whether a death falls within one of these categories, the plan is to issue accompanying non-statutory guidance giving examples of circumstances in which a notification should be made. A draft version of this guidance was issued with the consultation. The government says it will draw on additional/alternative examples suggested by consultation respondents when it finalises the guidance to support the notification of deaths regulations.

What next?

The next key development will be the proposed national roll-out of the medical examiner system from April 2019. Between now and then, we can anticipate more detail emerging as to the practicalities of getting that system up and running. 

The timeframes for putting notification of deaths to coroners on a statutory footing are far less certain.  Whilst the government has expressed a commitment to pressing ahead with the legislative changes needed for this, there is a noticeable lack of concrete timescale.   Given how long the draft regulations have already been gathering dust, we may still be some way off this becoming a reality.

The hope is that these changes will bring greater certainty and transparency to the scrutiny of deaths.   However, with many believing that the changes could also mean more inquests, there are lingering concerns over the impact on already-stretched resources.  Only time will tell.

How we can help

Our large national team of healthcare regulatory lawyers have a wealth of experience in supporting providers and individuals across the health and social care sector through the inquest process, including:

• Advice on reporting deaths to the coroner;
• Support with local investigation processes and compliance with Learning from Deaths Framework;
• Advice on Duty of Candour - thresholds and approach;
• Assisting with witness preparation, both at operational level and at strategic level to address Prevention of Future Deaths Report risks;
• Attendance at pre-inquest review hearings, which may cover matters such as inquest scope, juries and expert evidence;
• Representation at final inquest hearings, including witness support throughout.

We can also provide bespoke training on all aspects of inquests, including updates on the latest legal developments.