Written evidence from H M Coroner Andrew Harris
Senior Coroner, London Inner South
Submission to Justice Committee Inquiry into Coroner Services
The timing of this consultation is both surprising and regrettable. I have not seen the results of the last consultation which I thought would have been essential to inform this one. I do not see the urgency of conducting another at this time. Coroners have faced unprecedented workload during the pandemic, with many colleagues and staff working remotely and subject to illness and stress and substantial backlogs to address following closure of courts. I would have preferred to have completed our lessons learnt from the pandemic before submission and to have had an organization wide consideration of the state and future of the service and been able to provide evidence-based submissions to the Committee. Under current pressures this has not been possible before the deadline. Thus, I apologize that I am only able to make a few remarks ex tempore, reflecting my ten years as senior coroner and as a Professor of Coronial Law.
2. A National Coroner’s Service
At present coroners’ services are supported by either police or local authorities or both. There is a wide variation in quality of support and funding: the adequacy of service to the public should not depend on post code. Whilst I am most fortunate locally, it is said that local authorities do not always understand duties of confidentiality and judicial independence well; there is no independent investigatory body equivalent to the IOPC for the police, which may be necessary when the local authority is itself an interested person, being criticized. Police services do not always permit open recruitment for coroner’s officers; the quality of management is very varied. In principle a National Coroner’s Service would be preferable to the patchwork of local authorities and police services with varying priorities funding and overseeing local services. It would bring the coronial jurisdiction into line with other jurisdictions, so benefitting from reform and modernization programmes of the HMCT. It would also lead to potential economies of scale with sharing of premises and certain support staff. The government has asked this question before and expert reviews have repeatedly made this recommendation, but it appears that past governments have no appetite for taking on the national responsibility for the coroner’s service.
3. The need for legislative change
Presumably the Ministry of Justice does not find attractive taking responsibility for the Coroner’s jurisdiction, which needs additional funding to secure consistent services across the country and where opportunities for savings are difficult to achieve. The solution is to reduce the activity of the coroner. Parliament needs to revisit the role and scope of the coronial jurisdiction and investigations of parallel investigatory bodies, and consider confining the role of the coroner, especially with regard to hospital investigations. To be informed, Parliament would need to have the fruits of a review, preferably commissioned from an independent body with an academic chair to ensure proper evidence base is provided for changes to the law. In brief the following should be in scope:
i) Review of other coronial jurisdictions in Commonwealth countries, where there is a much lower inquest rate. My research and lecturing in Australia has led me to appreciate the merits of much of the State Coronial legislation, where notification of deaths in medical care are restricted to unexpected deaths.
ii) The merits of certain inquests being concluded without the requirement to be heard in public in court. The coroner will deliver his or her judgment by disclosure into the public domain of the Record and reasoned judgment. This has been proposed by the Chief Coroner.
iii) The merits of giving coroners a discretionary power, (exercised by State Coroners in Australia), not to investigate every potential unnatural death, for example falls where there is an antecedent cause such as old age frailty and unavoidable complications of chemotherapy such as Graft v Host Disease or more widely unnatural deaths where the family (or other potential IPs) do not wish for an investigation and there is no public interest in proceeding to inquest.
iv) A holistic and wide-ranging review of the scope, relationships and duplication of a myriad of death investigatory bodies. In complex cases years may pass before the coroner conducts an inquest because of other investigations. Whilst each body has different roles, witnesses may be giving evidence to each and a huge investigatory resource is committed by a series of organizations, covering the same circumstances.
Illustration of the complexities and delays spawned are found in two of the chapters I wrote in Jervis for Coroners (14 Homicide and 15 Notifiable Accidents and Prescribed Diseases). The duplication has been referred to by the High Court (Secretary of State v HM Coroner Norfolk 2016). Accidents are investigated by the relevant government body, additionally there is for each a regulatory body and there may be criminal investigation as well as a range of bodies with powers to prosecute.
In the health sphere there are serious untoward incident investigations, death reviews, potential referral to regulatory bodies, PALS complaint investigations, Health Service Investigation Branch, Care Quality Commission and Ombudsman investigations as well as the coroner’s inquest. With respect to homicides there are in addition local authority Safeguarding investigations, individual IMRs, Domestic Homicide Reviews as well as criminal and disciplinary investigations. Without a concluded trial and guilty verdict, applications are often made to coroners to resume an inquest. Delays in inquests pending Prison & Probation Ombudsman and Independent Office for Police Conduct reports are well recognized. But additionally, there may be a criminal and disciplinary investigations by departments within the police. There should be a more efficient way of completing the necessary investigations without duplication and speeding up the prosecution decisions.
v) There are several other non-controversial amendments that need to be made to the Coroners & Justice Act, to correct drafting errors. For example, the coroner needs to be able to discontinue an investigation even when no autopsy has been conducted.
3. Multi-death incidents
There are others better qualified to provide detailed evidence on this matter. I make two suggestions. The process of handling a multi-death incident requires particular expertise and is disruptive to local coronial services. In cases directed to be heard to be heard by a High Court judge, the appointment takes many months and leaves the investigation in limbo. There is merit in considering, in certain cases, such as those involving security services, creating a different fast track process of handling the incidents, with appointment of a High Court judge, within days of the incident. Secondly, the facility for nurses to act as the key communication link and immediate counselling role for families, as was successfully pioneered in Manchester bombings, should be available nationally.
4. Preventing Future Deaths
If Parliament is considering strengthening the powers of coroners in PFDs, an evidence base needs to be established. I would advise a comparison of the impact of much more extensive powers available to Australian coroners with those in England & Wales. It should not be assumed that more powers are needed to effect change. A quicker and really meritorious initiative would be to create the facility to analyze, categorize, index, publish and monitor the PFD reports and responses and maintain the data in the public domain, in an accessible form for coroners, regulators and prosecutors.
No coroner’s court could have predicted what was required to manage local services through the pandemic and it is my impression that most managed remarkably well in the circumstances. There are three emerging lessons for us which I suspect have national application:
i) There needs to be a systematic and expert monitoring of excess deaths and use of the data to inform and pre plan for emerging epidemics. In our jurisdiction there were excess deaths reported to the coroner compared with the previous year of 45% in January, 104% in February and 39% in March, but we did not analyze this data at the time. Nobody was therefore alerted by this data, which clearly shows an emerging epidemic (even though cases would not be labelled Covid) two months before lockdown. This would have enabled planning at both local and national levels. We had a local authority excess deaths group but no prior communications or alerts were given to the coroner from the data they were monitoring. This experience is probably the norm.
ii) Services for death investigation and registration need to be coordinated and not operate in silos. The emergency legislation created novel situations for coroners, coroners’ officers, pathologists, medical examiners, funeral directors and Registrars of deaths. We had a longstanding strong working relationship with our pathologists and police and local authority, and had occasional meetings with NHS Trusts and Registrars. In the pandemic we found the need to meet all groups weekly. We discovered aspects of each other’s processes, which we did not fully understand, prior to the pandemic. I commend establishing a system of close coordinated work, including review and monitoring, and communication channels between local authority, Registrars, NHS Trusts, police and coroner’s services.
iii) Finally, many jurisdictions have an emergency plan for a mass disaster, but this is poor preparation for a pandemic. If each service had an epidemic emergency plan, we could move faster and with greater understanding by staff to a different mode of operating. Appropriate human resource management, environmental protection, ordering personal protective equipment, work reallocation, stakeholder consultation and information exchange would be more timely and efficient. Further pathologists and coroners would be on notice to consider other investigations, and monitor causes of death carefully.
6. Training and Guidance
Training and guidance for coroners has improved hugely since the creation of the post of Chief Coroner. The compulsory training for coroners is widely welcomed but the quality has varied considerably. Greater opportunities to discuss case law, review case management decisions and engage in multidisciplinary training would be welcomed. Creating the culture and funding for coroners to engage in self-directed learning and audit would be a valuable initiative. Training for Coroners Officers has dragged behind that of coroners and is insufficiently comprehensive and incompletely accessed. Excellence in practice is often driven by centres of academic excellence. There is a need to promote academic coronial research and teaching. One university department of coronial law is insufficient and there is a need to fund a centre leading original research.
One visionary opportunity that needs to be considered is the commissioning of a university with public health and law departments to hold securely the anonymized data sets of all coroner’s services and offer consultancy to coroners services to enable understanding of variations in activity and performance, support coroner reporting to Ministry of Justice and Chief Coroner and the many research requests made. It would provide a data set for greater public accountability, benchmarking, critical public health monitoring, identification of trends, supporting investigations and research. It is important that such a model is not based in a government body but an independent body, so that the confidentiality and handling of sensitive data is trusted by coroners and families alike.
7. Improved service for the bereaved
Firstly the Coroners Court Support Service needs secure funding to be able to reach all jurisdictions. It is a volunteer service supporting witnesses, especially bereaved families, who are often unrepresented in coroner’s courts. In the criminal courts its sister body is formally funded. As coroners we greatly value the service which they provide which also produces useful feedback for us.
Secondly the delay in approving and severely limited criteria for legal aid funding for families to be represented in complex and especially Article 2 investigations and inquests sustains an inherently unfair system. Coroners work hard to achieve “equity of arms” between organizations who field senior advocates (paid for by the taxpayer if they are a public body) and families, who have none and do not understand the process and often may have limited literacy or analytical skills, but compensating completely for the unfair balance of representation is not always possible. The fact that coronial proceedings are inquisitorial and not adversarial does not remove the need for families to have the same support as other interested persons. It is necessary not only in the inquest, but in pre-inquest hearings, to equip the family to understand the process, analyze volumes of documents, make submissions about disclosure and relevant witnesses. I refer the Committee to the evidence from the enquiry by Dame Elish Angiolini.
The proper support for representation of families and time and professional support to coroners to discuss the law, case management decisions and professional challenges all contribute to fairness. The outstanding training on procedural justice organized by the Chief Coroner and Judicial College needs wide dissemination and iteration to achieve the perception of fairness. Much is said about the inconsistency of coroners without understanding the underlying factors – e.g: lack of clarity in law, variable funding and different case mix. Coroners are working under huge pressures. To deliver fairness and justice, capable service managers, reliable IT infrastructure and data, excellent professional and educational support and time to engage in professional development, mentorship, appraisal, reflection, peer learning are needed. These are not always all available.
31st August 2020