Written evidence from David and Aldyth Smith
Given the importance of the service to families in seeking to understand the causes and circumstances of the death of a loved one, it is astonishing that standards differ across the country. The current system is too varied and its effectiveness is dependent upon the resources provided locally, thereby creating a ‘postcode lottery’. This is hardly appropriate for a service of such fundamental importance. We believe the current system should be replaced by one that is based upon national standards of service which are supported by a suitable funding formula to ensure equality between areas. It may be that this would be better provided by a national service but we do not have a clear view on this.
We do not have a view on this as it is outside our experience.
Our experience relates to 2013 when such matters were dealt with under Rule 43. Following the inquest into the death of our daughter, the Coroner issued four Rule 43 recommendations. At the time our barrister commented that to receive one was rare and to receive four was virtually unheard of. Our concern is that, in our understanding, the organisation or individual they are directed at is not required by law to respond. The fact that responses are published may ensure that most, if not all, recommendations are responded to. There is no guarantee however that the responses are adequate or effective in terms of ensuring that the issue that is the subject of the recommendation is resolved. If it is not we understand the coroner has no powers to require the organisation or individual to undertake further review or action. We strongly suggest that this is a matter that the Committee needs to review to ensure that all responses are effective and resolve the matter otherwise there is a danger that such recommendations are meaningless and further deaths from that cause likely.
Following the inquest into our daughter’s death we battled with the health authority for three years over issues outside the remit of the inquest. In the process the then Chief Executive of the hospital trust commissioned what he suggested was a comprehensive review of the various matters we had raised over the years since our daughter’s death. While we were not surprised that the report we received did little to meet its brief we were astonished by the response the author made to our comments on the Rule 43 recommendations. We felt he was completely dismissive of the very focus of such recommendations on the prevention of future deaths. In his response, the author stated “The Rule 43 recommendations related to a need for better policy clarity and action…”. To us this suggested that he simply viewed them as some form of administrative ‘tidying up’ and a total misjudgement of the seriousness of the issues raised by the coroner. To us it provided further evidence of the ‘culture of denial’ evident within the trust, something that, through our endeavours, has since been resolved. We believe that there needs to be a mechanism for ensuring that responses are appropriate and effective, otherwise the purpose of such recommendations is meaningless.
On a further point we have concerns that nobody appears to be charged with responsibility for judging whether such recommendations have national implications. It seems to us that without this there is a real danger that the same circumstances may be repeated in another setting, for example in a hospital and so further deaths may occur from the same error. This is a role which the office of the Chief Coroner is probably best suited to as it already publishes details of all such recommendations and the responses to them.
While we have no knowledge of the training given to coroners we were astonished that it took the threat of judicial review before the coroner who initially dealt with the inquest into our daughter’s death sought legal advice in considering whether the inquest should be Article 2 compliant. Our solicitor provided him with detailed information from a then recent Supreme Court ruling to support this contention but he simply rejected this out of hand, suggesting that in his opinion it was not necessary. We do not know why he took such a stance in the face of the evidence provided to him. To us it appeared extremely arrogant and caused us further and unnecessary anguish at a time when we wanted to focus on our own grief and establishing how our daughter died in the care of a mental health trust. In addition, we had to incur additional and unnecessary legal costs. Following the commencement of judicial review proceedings, he did seek advice and on receipt, he immediately conceded the point. Had he sought to verify the accuracy of our solicitor’s contention at the point she proffered it we would have been spared this. At this point he was replaced by the chief coroner of our local coronial service.
We were so concerned by his failure to act appropriately that we approached the office of the Chief Coroner to ask whether a ruling of such significance, handed down by the Supreme Court (it brought into the scope of Article 2 all deaths of patients who were not detained but were in the care of mental health trusts) was the subject of advice from his office. The astonishing response we received was that it was not normal practice to provide such advice, despite the 2009 Act suggesting that this was part of his remit. In the light of our experience we believe this is a further matter the Committee needs to address.
We were very happy with the service and support we received from the coroner’s office. From our comments above it is very clear that we were very unhappy in our dealings with the coroner who was initially responsible for conducting the inquest into our daughter’s death. To dismiss our solicitor’s application out of hand, without first seeking to verify the situation, was as arrogant as it was inexplicable and surely not something that families in such a fragile state should have to experience. Quite how this can be addressed, other than through training, we do not know but we are aware of many other families who feel dismissed by the attitude of the coroner towards them.
We are well aware that the coronial system is meant to be inquisitorial rather than adversarial. Sadly, this is not the experience of many families when faced with an array of legal advisers, lawyers and barristers employed by public bodies. Rather than supporting the coroner in seeking to establish the cause of and circumstances surrounding the death of a loved one, their focus appears to be on safeguarding the reputation of the public body. We were fortunate in being able to afford both a solicitor and a barrister in seeking to represent our daughter’s interests at the inquest into her death. This was because we had both recently retired and were able to raid our lump sums to fund our legal team. This is something most families are unable to do and so they muddle through as best they can, though many give up and don’t even attend the inquest. We would rather have spent the money on our daughter’s wedding, had the state managed to keep her safe.
We participated in the review of legal aid in support of families undertaken by the Ministry of Justice two years ago. Legal aid is rarely granted and subject to a rigorous means test, even when it is an Article 2 inquest. Despite the encouraging response of departmental officials at a meeting we attended, very limited change ensued. Unless this inequality of arms is addressed, public authorities will continue to do all they can to protect their reputations rather than supporting the aims of an inquest and truth will be the victim. Either all legal representation should be barred, but families would still be disadvantaged as public bodies will still have their legal advisers to support them, even if in the background, or all interested parties should have their legal costs funded by the state as of right.