Inquests – we know the problems but how do we solve them?

Earlier this week I wrote about the problem of families at inquests having to ‘fight’ for the truth of how a loved one had died whilst in the care of the State.

This blog hopes to provide some answers to how I feel the experience of bereaved families seeking to enforce their Article 2 rights and secure truth, accountability and change can be improved.

With such a complex topic there must be caveats. By ‘in the care of the State’ I include in the care of private or charitable providers contracted by the NHS or local authorities to provide public services or where another Interested Person is represented using the public purse.

The list is in no way exhaustive, these steps would also not widen the category of people currently able to receive legal aid for representation in an inquest into their loved one’s death.

The allocation of legal aid for all bereaved families would be the very key to providing the real change needed to provide the answers from inquests that could protect us all.

But if we can’t go that far, and lets face it, getting the Ministry of Justice to widen its legal aid provision has as much chance as my daughter getting the pet unicorn she requested from Santa last year, what practical measures can be taken now to make a real difference to finding out the truth when someone dies in the care of the State?
 

1. Stop perpetuating the myth that legal representation is not required in any Inquest and that they are not adversarial: All Coroners should be required at the opening of an Inquest to inform family members that they might benefit from legal advice and that legal aid might be available. If ordering a Post Mortem, the Coroner should also inform the family of their rights in that regard. The INQUEST handbook is a brilliant information source, available free online and easy to signpost to.
2. Require Coroners who have had a death reported to them, and are considering not opening an Inquest, to request family views before making a final decision and inform them when responding that the family may wish to seek legal advice promptly if they disagree.
3. Require ‘Interested Persons’ (the name for parties in an Inquest) to confirm to the Coroner at the earliest opportunity whether they will be legally represented and inform the bereaved family.
4. Widen witness expenses covered by the Coroner to include the bereaved family and let all bereaved families know this funding is available.
5. While you consider providing non-means tested legal aid for Inquests involving the death of a person while in the care of the State, address the defectives in current Legal Aid system to remove some of the burdens from bereaved families:
   • consider merits criteria and reasonableness of family self-funding BEFORE requiring financial information and only require it, if justified to consider whether the family should pay it if can afford to do so with a presumption of not requiring this where other Interested Persons are represented at a cost to the public purse.
   • shorten the process times for legal aid applications (20 working days – minimum of 4 weeks) given Coroners are required to try and conclude an Inquest within 6 months from a death.
   • Ensure names are spelt accurately in decision letters and facts correctly summarised.
6. Provide training for Coroners involving those with experience representing bereaved families and stress the importance of putting the family at the heart of the process, including not listing hearings/imposing deadlines while they are seeking to secure funded legal representation.
7. Issue (and keep updated) Chief Coroner guidance regarding the correct legal test for engagement of Article 2 – too often I receive decisions that are simply wrong in law (as opposed to applying the correct test and reaching a different conclusion) and considerable time is wasted persuading the Coroner otherwise, causing significant anxiety and stress for the bereaved family in the meantime.
8. Publish Prevention of Future Death reports in a format where the contents are searchable – this is easy with modern technology and it is inexcusable that these important documents are not easily searchable by content.
9. And, for when the Inquest process is deficient or the bereaved family seek further enforcement of their Article 2 rights via the Courts….:
   • Issue HM Chief Coroner Guidance regarding Coroners seeking legal costs against a bereaved family in a judicial review; and
   • Extend Qualified One Way Cost Shifting to explicitly include all Article 2 claims.
10. Finally, realise that enforcement of human rights benefits all of us and in the long run, if the truth is easier to find and the system worked properly, the long term costs to the public purse would be considerably less than the costs of fighting with a bereaved family, who never wanted a fight in the first place.