Briefing 4 Inquests and the disclosure of information to the coroner

Transcription

1 briefing February 2013 The Francis Reprt Briefing 4 Inquests and the disclsure f infrmatin t the crner Key chapters Key recmmendatins 2, 11, 14, , 45, 273, 282, 283, 17 There is a requirement nt nly fr clinicians t be candid with patients abut avidable harm, but fr safety cncerns t be reprted penly and truthfully, and fr rganisatins t be accurate, candid and nt prvide misleading infrmatin t the public, regulatrs and cmmissiners. Chapter 22 Summary After hearing evidence in respect f the rle f the Crner a number f recmmendatins have been made t further develp the principles f penness, transparency and candur. These recmmendatins include: An urgent need fr unequivcal guidance t be given t trusts and their legal advisrs and thse handling disclsure f infrmatin t crners, patients and families, as t the pririty t be given t penness ver any perceived material interest. The terms f authrisatin, licensing and registratin and relevant guidance shuld blige healthcare prviders t prvide all relevant infrmatin t enable the Crner t perfrm his functin, unless a directr is persnally satisfied that withhlding the infrmatin is justified in the public interest. The CQC shuld be infrmed, either by the Trust r the Crner, f upcming inquests. Crners shuld send cpies f relevant Rule 43 reprts t the Care Quality Cmmissin. Hwever, the analysis applied t the questin f disclsure by Mr Francis effectively means that existing guidance requires that NHS rganisatins shuld be prepared t share mre infrmatin with the Crner than has hithert been the nrm, even if that prejudices the Trust s psitin in future litigatin. Yu shuld therefre review yur current apprach t incident investigatin and disclsure t ensure that yu are abve criticism. 1

2 Intrductin In the sectin n Openness, Transparency and Candur Mr Francis recmmends that terms f authrisatin and registratin, and any guidance given t healthcare prviders, shuld be amended t ensure all relevant infrmatin is prvided t the Crner. Where a patient dies in hspital r where there is a suspicin that a death was caused r cntributed t by medical care then: health care prviders shuld generally disclse t the Crner investigating the death any dcumentary material in their pssessin cntaining infrmatin abut r relevant t the patient s cnditin, treatment prvided, the cause f death and surrunding circumstances, including but nt limited t any recrded pinin cncerning thse matters. It is clear that this reprt will have cnsequences fr the cnduct f inquests and require trusts t g beynd what is strictly required in law and beynd what may als be strictly required under current guidance and prfessinal bligatins. Thse invlved in handling inquests, and health care prfessinals required t assist the Crner, wuld be advised t digest what the reprt says and understand hw this may affect their practice. Althugh nt a majr part f his inquiry, Rbert Francis QC, neatly ties in what he sees as prblems in the handling f inquests by the NHS with his drive fr the NHS t be pen and transparent. Essentially he argues that health care prviders shuld vlunteer all infrmatin and dcumentatin cntaining infrmatin ptentially relevant t the inquest. It is fr the Crner and nt Trust staff t determine what is relevant. This is far-reaching n any analysis. Francis includes a small caveat where there might be a public interest argument t justify nn-disclsure, but this shuld nly be dne with the persnal authrity f a directr, presumably an executive directr. The reprt als recmmends that: rule 43 reprts, where the Crner requests actin be cnsidered t prevent future deaths, shuld be sent t the CQC, and Crners shuld insist n having the senir dctr respnsible fr the care f the patient t give evidence, irrespective f their direct invlvement with the patient. The present psitin In recent years healthcare rganisatins have develped practice and relatinships with Crners such that there is rarely a prblem with disclsure f medical recrds and reprts frm staff. Usually specific reprts are btained and disclsed by the Trust s staff. In additin it is almst invariable practice fr rganisatins t disclse incident investigatin reprts t demnstrate lessns learnt and any changes t practice required. This represents gd practice t demnstrate that patient safety is paramunt. Hwever, the purpse f an inquest is necessarily limited in law t a factual determinatin, essentially, as t hw a patient met their death. It is nt a trial, nr is it a frum fr blame r recriminatin. It is nt an apprpriate methd f dealing with cmplaints. 2

3 The nly evidence a crner is entitled t take int accunt is the ral evidence given by witnesses live in Curt r written evidence read ut in curt, prvided the latter is undisputed by the interested persns. The Crner des nt have pwer t rder disclsure f reprts r dcuments, althugh, in exceptinal circumstances, he can apply t the civil Curt fr a witness summns t rder prductin f dcuments. It is very unlikely a trust wuld prvke a Crner t d that and it is an extremely rare ccurrence. S what s the prblem? The prblem, simply put, is hw t reslve the cnflict between the public interest in penness and candur n the ne hand and the public interest in encuraging staff t be pen and hnest during an internal incident investigatin designed t imprve patient safety, n the ther. One ptentially cntentius issue is the disclsure f internal statements and evidence btained as part f the internal investigatin. Often these are nt cntentius and disclsure is nt a prblem. But a ptential issue can arise, even if the investigatin reprt itself is disclsed. NHS guidance is clear that staff shuld cperate penly with such investigatins as part f the n-blame culture. But is this likely t happen if staff believe their cnfidential, full, and hnest reprts, given t assist internal inquiries undertaken t imprve patient safety, are likely t be disclsed and subject t frensic analysis by lawyers, crners and the public scrutiny f the press? Francis dismisses the argument that peple will nt cperate because f such risks. Cmmentatrs currently appear t be divided ver the issue. Undubtedly there is a prfessinal duty n qualified staff t assist. While all staff might have sympathy with ideas f penness and candur, disclsure t lawyers can lead t individuals being much mre cautius when putting matters in writing. Whatever the rights and wrngs, that may be a fact f life. Trusts will have t wrk thrugh that tensin and decide fr themselves hw pen they want t be withut making it even mre difficult fr staff t raise cncerns in a cnfidential envirnment. Thughts fr the future We are f curse awaiting the gvernment s respnse but sme issues t be addressed are: The presence f the senir dctr is likely t represent a mve twards mre accuntability fr, and assessment f, the care delivered, during the inquest. Lawyers fr families are likely t take the pprtunity t attempt frensic questining. Whilst there can be n bjectin in principle and Crners are likely t find this helpful, care will need t be taken that nly matters relevant t the inquiry are cnsidered and that inquests d nt becme a trial-run f a negligence hearing. Increased attendance at Inquests by senir clinicians will need careful planning. In difficult and ptentially cntentius inquests, witnesses will need t prepare fr the hearing much mre carefully t ensure they give accurate and fair evidence t d justice t themselves t prperly assist the crner with relevant matters and t assist with relevant issues raised by families. Investigating incidents in a healthcare setting prvides real value and n dubt leads t imprved patient care and a safer envirnment. This is a paramunt cnsideratin and shuld nt be cmprmised by issues f disclsure. It needs t be appreciated that this wider legal and regulatry framewrk which is being encuraged can cmplicate what is primarily an internal learning prcess. Careful thught needs t be taken, as a matter f general plicy, and at the utset f each investigatin, hw t deal with questins f disclsure after the investigatin is cmpleted. There is n abslute answer and care must be taken t ensure that yu are fair t bth patients and staff. 3

4 Cmmunicatin with families must be imprved and every facility ffered t allw them t input their wn cncerns int any internal investigatin. Families shuld receive prper explanatin and answers t their questins as sn as pssible, and befre any inquest. Where apprpriate, healthcare prviders shuld cnsider making admissins if there is a clear case f negligence befre any inquest. Such a curse f actin (taken in cnjunctin with the NHSLA when required) will be seen as a psitive step and, experience suggests, ne that is appreciated by families and crners. It will help remve suspicin that the Trust is nt being pen and hnest and will help reduce the tensins and stress frm the inquest prcess. Francis recmmends that firm guidance be given t healthcare rganisatins in respect f disclsure. Hpefully the Department f Health will ffer such assistance and deal with the ptential cnflict in public interest. Urgent cnsideratin needs t be given t the value f internal investigatins and the risk (and hw shuld it be handled) f reducing the value f internal pen learning by making trusts carry them ut under external scrutiny. Existing guidance frm the department (and ptentially frm regulatry bdies) needs updating urgently t remve dubt. We may als see guidance frm the Chief Crner f the issue. Whilst it appears that the recmmended duty f candur applies t the need t infrm patients in respect f issues r harm arising ut f care, there is n dubt that Francis als believes that the same principle shuld apply t infrming crners, despite their limited legal remit. The prpsals arund the duty f candur and additinal criminal liability fr clinical incidents needs t be thught thrugh carefully t ensure that they d nt result in mre cases f witness refusing t answer questins within an inquest setting because f a risk f incriminating themselves. The nly justifiable argument fr nn disclsure f an internal statement during an inquest wuld be that the balance f public interest in a particular case rests in maintaining cnfidentiality - as ppsed t the public interest in penness. Francis recmmends that such an argument must have the explicit apprval f an [executive] directr. Hwever, that is nt yet the legal psitin r fficial Department guidance. It will be a bld directr wh seeks t use this argument in the face f such pressure t disclse anything and everything. It may be that rganisatins will need t prvide ther ways f staff raising cncerns in a cnfidential and supprtive way. Prepare t disclse mre internal dcuments and reprts t the crner and ensure that all staff, including management, understand their bligatins. 4

5 Get in tuch If yu want t discuss hw the Francis reprt might affect yur rganisatin, please cntact us directly. Duncan Astill Partner T +44(0) [email protected] Learn mre Read all six f ur Francis Reprt briefings 1. Key recmmendatins and early respnse 2. Gvernance 3. Regulatin and criminal prsecutin 4. Inquests and disclsure 5. Cmplaints 6. Values and standards T +44(0) Mills & Reeve LLP is a limited liability partnership authrised and regulated by the Slicitrs Regulatin Authrity and registered in England and Wales with registered number OC Its registered ffice is at Funtain Huse, 130 Fenchurch Street, Lndn, EC3M 5DJ, which is the Lndn ffice f Mills & Reeve LLP. A list f members may be inspected at any f the LLP's ffices. The term "partner" is used t refer t a member f Mills & Reeve LLP. The cntents f this dcument are cpyright Mills & Reeve LLP. All rights reserved. This dcument cntains general advice and cmments nly and therefre specific legal advice shuld be taken befre reliance is placed upn it in any particular circumstances. Where hyperlinks are prvided t third party websites, Mills & Reeve LLP is nt respnsible fr the cntent f such sites. Mills & Reeve LLP will prcess yur persnal data fr its business and marketing activities fairly and lawfully in accrdance with prfessinal standards and the Data Prtectin Act If yu d nt wish t receive any marketing cmmunicatins frm Mills & Reeve LLP, please cntact Suzannah Armstrng n r [email protected] 5