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The postcode lottery in our inquest system

Merry Varney, partner in the human rights department, discusses the differences that can occur at inquests due to the wide discretion given to coroners 

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Merry is a partner in the human rights department.  She has a particular interest in using the law to protect children, vulnerable adults and patients.  She tweets as @merryvarney
I spent most of July in two different coroners' courts instructed by the bereaved families of two young women, Sophie Payne and Zoe Watts, who died while inpatients, detained under the Mental Health Act in general adult psychiatric hospitals, one in London, one just outside.
Both inquests took place with a jury and both juries returned conclusions that included failures in the care and treatment provided to the deceased. Both involved the coroners obtaining independent expert evidence and both coroners accepted their investigations must address not just how the deceased died, but also the circumstances of the death.
The similarities end there and the differences in their approaches highlight the postcode lottery of our inquest system and the wide discretion coroners have, which leave bereaved families with considerable uncertainty about how their loved one’s death will be investigated.

The need for a national system has long been recognised, and it was deeply disappointing to see the appeal process for coroners’ decisions,  set out in the Coroners & Justice Act 2009, withdrawn before it was even brought into force. This leaves bereaved families with judicial review is as their only option to challenge coroners’ decisions, and this can be an expensive and risky process in which coroners are given a wide margin of discretion. You only have to have a skim read of Chief Coroner’s Law Sheet (no.5) on the discretion of coroners to see that from scope to procedural decisions to what is left for a jury to decide, the width of the discretion is very broad indeed.

So what were the differences?

As aforementioned, independent experts were instructed by both coroners. In one the coroner asked the Interested Persons (which includes my clients) for views on the identity of an appropriate expert and provided the opportunity for questions to be put to the expert in advance. This step assisted greatly in ensuring the family were at the heart of the process. The other coroner went ahead and instructed experts without any recourse to the bereaved family.
In one inquest the coroner asked witnesses who had already provided a statement to read relevant sections out, and then to answer questions. This allowed the jury to hear clearly, from the witness directly, what the witness was saying happened. The other coroner questioned witnesses by summarising the statements prepared in advance and asking the witness to confirm what she said was accurate. This meant the coroner’s own interpretation on what had been written was added to the evidence, and considerable key information was contained in their question, rather than the jury and the bereaved family hearing it from the witness directly.
Still on witnesses (and bearing in mind that witness evidence in inquests is often crucial given its inquisitorial nature), one coroner directed that those under oath should, to avoid any concerns, ‘keep themselves to themselves’ during any short breaks during their evidence. The other simply said not to discuss their evidence or the case, but indicated it was acceptable to socialise with colleagues for example. Where trust is already very sparse, seeing witnesses chatting with their legal representatives/employer/colleagues (including other witnesses) can be very distressing for a bereaved family and the purpose of inquests allaying suspicion becomes a farce, albeit the latter  approach is well within a coroner’s broad discretion.
Finally on the topic of witnesses, one coroner decided that the jury should hear evidence from  ‘Trust management’ explaining all the actions taken since the death in their care to improve patient safety and services; the other felt such evidence should not be heard by the jury as it was not relevant to the circumstances of the death, but instead was only relevant to whether or not the coroner’s duty to make a Prevention of Future Deaths report was triggered.
The last difference to highlight goes to the heart of how a jury inquest is conducted: the jury bundle. In one inquest, the jury had no documents. The Interested Persons and their lawyers and the coroner had several files worth of medical records, policies and statements. Witnesses also had access to the documents. The jury had none; rather, they had to try and listen carefully to either witnesses reading sections out, or the content being contained in a question being put to a witness, and make notes to consider it during deliberations.
In the other inquest the jury had her progress notes, the observation chart from the day of her death and multiple policies which governed her care and treatment, and how the ward should be run. The jury had these key documents in front of them throughout, allowing them to more easily follow the witness evidence, and allowing more direct, clear questions to be put by the Interested Persons and the jury themselves.
I cannot explain these differences in any other way than the personal preference of each coroner, yet each decision has a fundamental impact on how an inquest proceeds and the experience of the bereaved family. The above is just a snapshot of the variety in decision making that occurs across the country in coroners’ courts. Within that variety are some very poor decisions and when combined with the unpredictability that variety also brings, the woeful nature of our postcode-based inquest system is clear to see.

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