Week 6: A breath of fresh air in the inquiry process #107days

Final post this week is an update from Sara:

Bit of a shocker a couple of weeks ago when we were informed by Charlotte, our solicitor, that Sloven were going to ask for a judge to be appointed to conduct LB’s inquest. She explained how the Coroners and Justice Act 2009 allows a High Court Judge to be appointed to hear an inquest in certain circumstances. The Chief Coroner has to make a request of the Lord Chief Justice, who in turn has to consult with the Lord Chancellor, and the Lord Chief Justice can appoint a High Court Judge to sit as a Deputy Coroner who can hear inquests alone or with a jury. There is no specific guidance as to when this should happen but it is relatively rare and tends to happen in cases involving matters of national security (eg. the Litvinenko Inquiry) or when the inquest may be exceptionally legally and factually complex (eg. the ongoing Hillsborough inquests).

LB, love him, was not really a matter of national security (though this request would put a bounce in his step forevermore) and really it ain’t exceptionally complex what happened. Our hearts sank because of the delay that it could cause. The inquest is currently arranged to start on October 5th and the thought of it being put back even further was fairly harrowing.

We were all pretty baffled why and on what grounds (two separate things) Sloven would make this request. The what grounds was answered by the five page letter to the Chief Coroner, dated 24 April, which argued that LB’s inquest may well have far reaching implications for the care of young learning disabled adults in the future. Well here in the Justice shed we certainly hope it does. That is the aim of the campaign after all. The letter went on to detail and provide links to our social media activity including Norman Lamb’s Lib Dem Spring conference speech.

Bizarrely, having argued against an Article 2 inquest in an earlier pre-inquest review meeting on the basis that there have been so many reviews into LB’s death, Sloven’s solicitors made the case in the letter that the volume of evidence gathered by the various reviews will make the inquest legally and factually complex. Ho hum.

The now familiar heavy weight we seem to carry with us increased (again) and we steeled ourselves for further, relentless, delay.  Three days later, remarkably, the Chief Coroner replied turning down the request. He acknowledged that the inquest may have wide reaching implications for the care of learning disabled people, but he didn’t think it would be exceptionally complex and bringing in a judge would involve delay. Wow. It was like someone had opened the door to the musty, dark, dank old cell we’ve been stuck in for 21 months now and blasted a load of fresh air into it. A response/action in three days? That is exactly how the system should work. The door shut again but we were left feeling brighter and with the most poignant typo in the letter:

The Chief Connor has read your letter about the events surrounding the sad death…

I hope LB is somewhere, somehow. Because his dreams continue to come true in the most fantastical ways. 

Week 2: Exceptional funding #inquests #107days

One of the most astonishing things that we’ve learned since LB died is that families have to fund their own legal representation at inquests while the NHS can draw on the public purse (with no apparent cap to what they can spend). There is something called exceptional funding but we were told, back in those darkest of dark days, that this is almost impossible to get and involves a complicated, intrusive process of lengthy form filling.

We thought we’d have a closer look at this mythical pot of money as part of our Inquest week.

First, there are two criteria to be met before you can think about applying for exceptional funding:

1. Where it is necessary to carry out an effective investigation into a death, as required by Article 2 of the European Convention on Human Rights
2. Where there is a significant wider public interest in the individual being represented.

We covered the Article 2 aspect in our first inquest post. The second criteria is a funny old beast and deserves a closer look.

Mmmm. This left us scratching our heads in the Justice Shed to be honest. If the MoJ are arguing that inquests are inquisitorial processes, why, would there be any situations in which there is a wider public interest in the family being represented? This exceptional loophole is surely recognition that families do really need representation, it’s just they can only access public funding for this if the ramifications go wider than their dead relative. The Lord Chancellor’s Exceptional Funding Guidance (Inquests) adds more detail to this peculiarity by stating that:

Another big ‘mmm’ for us. The old ‘lessons learnt’ chestnut that Sloven (and others) dust off for most inquests surely can’t be taken at face value? We’ve lost count of how many times Sloven spokespeople have stated they’ve learned they need to start listening to families. And don’t.

Confronting this level of brutal inanity after the unexpected death of a child or other family member is, as you can imagine, the equivalent of having the remaining pieces of your heart tossed into a colander and sprinked with a mix of lemon juice and chilli. It is a fall at the first hurdle jobby.

But let’s just imagine, that someone decides to go ahead with applying for this exceptional funding. They fit the criteria and move onto stage 2. The details of applying for the funding and forms can be found here.

Caseworkers fill in the application. Families just need to open their lives to intense financial scrutiny (21 page form) to have a chance of getting it.

Funnily enough, through all the documentation, there crops up the statement that there is a discretion to waive the financial eligibility limits if, in all circumstances, it would not be reasonable to expect the family to bear the full costs of legal assistance at the inquest. This statement is then mired in some gobbledy gook about the history of the case, the nature of allegations to be raised against State agents, disposable income, capital and financial resources and the estimated costs of providing representation. Eh? In a Home Affairs Briefing by John Bardens (March 2014), it’s stated that families will have to still make contributions if they have over £315 disposable monthly income or over £3000 in disposable capital.

It is hard to understand why families should have to pay for legal representation when their relative has died a preventable death in the care of the state. It is hard to imagine how families, in that context, could possibly bear to go through the process of applying for ‘exceptional funding’. Especially given the State agents can just order in any legal team they want at the taxpayers expense.

How many more hurdles can there be to jump over (or fall face first into) before we get Justice?

Week 2: Inquest inequalities #107days

If someone dies unexpectedly in detention (in prison, immigration services, police custody or under mental health sectioning) there is a legal requirement that the coroner must hold an inquest. An inquest is a public investigation to establish who the person was, and where, when and how they died. If someone dies in the care of the state, then article 2 of the European Convention on Human rights (the right to life) is evoked, and the coroner may decided to hold an article 2 inquest. This is more thorough and far reaching than inquests into deaths that do not engage this duty.

For further info, INQUEST have thorough info and excellent caseworkers to provide advice.

This all seems fairly straightforward but in practice is a lot murkier and difficult for families to negotiate. Here are some of the issues that we’ve learned over the past year or so.

1. The NHS can use public funding to pay for legal representation at inquests

Astonishingly, NHS trusts are able to fund expert legal teams while families can only rarely access exceptional funding to cover their costs. The criteria for exceptional funding is enormously complicated and confusing. The cost of legal representation is not only for attendance at the inquest (and pre-inquest review meetings) but involves a large amount of preparatory work. Our solicitor has read through extensive documentation and records, identified issues to be brought to the attention of the coroner, written submissions, created a witness list and repeatedly requested missing documentation from Southern Health. So far, this has cost around £14,000.

Last month a High Court ruling in a case brought by Joanna Letts (who was trying to establish whether her brother’s death was related to hospital failings) says official guidance on whether to provide legal aid has been ‘misleading and inaccurate’.

2. Inquests are supposed to be inquisitorial and not adversarial

In practice, NHS trusts may be very keen to narrow the focus of inquests to reduce potential damage to reputation and avoid negative findings by the coroner. Sloven had an expert barrister in representing the police and medical defence organisations at the first pre-inquest review meeting. He argued that an article 2 inquest was not necessary because the article 2 procedural obligations were met by the various ongoing investigations relating to LB’s death. He also argued the conditions for having a jury were not met because drowning was not an ‘unnatural’ death. The Minister of State for Justice and Civil Liberties, Simon Hughes, argues that families do not need legal representation at inquests. The coroner should make the process understandable. This is clearly nonsensical given the legal arguments banging back and forth between the Sloven legal team and ours.

3. Witness coaching

Witness coaching is clearly common at inquests. Rosi Reed documented the obvious coaching Sloven employees had undergone at Nico’s recent inquest. There have also been repeated questions about the behaviour of staff at Joshua Titcombe’s inquest, and the common view is that staff were clearly coached. Indeed, Dr Bill Kirkup in his investigation into what happened at Morecambe Bay had this to say:

We also found evidence of inappropriate distortion of the process of preparation for an inquest, with circulation of what we could only describe as ‘model answers’. Central to this was the conflict of roles of one individual who inappropriately combined the functions of senior midwife, maternity risk manager, supervisor of midwives and staff representative. We make no criticism of staff for individual errors, which, for the most part, happen despite their best efforts and are found in all healthcare systems. Where individuals collude in concealing the truth of what has happened, however, their behaviour is inexcusable, as well as unprofessional.

Kirkup’s report had 44 recommendations for improvements, number 30 is as follows:

30. A national protocol should be drawn up setting out the duties of all Trusts and their staff in relation to inquests. This should include, but not be limited to, the avoidance of attempts to ‘fend off’ inquests, a mandatory requirement not to coach staff or provide ‘model answers’, the need to avoid collusion between staff on lines to take, and the inappropriateness of relying on coronial processes or expert opinions provided to coroners to substitute for incident investigation. Action: NHS England, the Care Quality Commission.

It is explicitly clear that if a family hopes to establish what actually happened to their loved one then a legal team with expertise in getting beyond learned statements is necessary.

Yesterday the Public Administration Select Committee of the House of Commons published a report Investigating clinical incidents in the NHS. You can read the JusticeforLB response to it here, while we welcome it’s recommendations, we do not think they go far enough.

It is crystal clear that more reform is needed of the inquest system in the UK. The system is archaic and there is no parity of arms.

Day 98: An INQUEST intervention #107days

Day 98 was adopted by Deborah, Selen and colleagues at INQUEST to share what happened on the 10th June when they co-ordinated a meeting with Andrew Smith, MP for Oxford, with Deborah Coles, Selen Cavcav and Sara Ryan.

INQUEST and Sara Ryan, mother of 18 year old Connor Sparrowhawk, met with Sara’s MP Andrew Smith on 10 June to discuss a number of urgent issues arising from his death.

Connor Sparrowhawk, who had autism, a learning disability and epilepsy, died on 4 July 2013 in the Short Term Assessment and Treatment Team Unit (STATT unit) run by Southern Health NHS Trust. He was found unconscious in the bath.

An independent investigation published in February 2014 found his death could have been prevented.

INQUEST co-ordinated the meeting as part of the 107 days campaign.

Among the issues discussed were:

• the lack of support for families following a traumatic death
• the absence of an independent mechanism for the investigation of deaths in mental health care and the fact that Connor’s death was initially dismissed by the Trust as  a death from ‘natural causes’;
• that there is no automatic right to legal aid for Connor’s family – or any bereaved family – for legal representation at inquest, despite public funding being available for the Trust and other interested parties, resulting in a serious inequality of arms;
• the lack of openness and transparency about the number of deaths occurring of young people dying in units for people with mental health or learning difficulties;
• the provision of health and social care for people with learning difficulties in Oxford.

Through a combination of intensive pressure from the family and good quality legal representation set up by INQUEST, the family were able to secure an independent investigation into Connor’s death. This is highly unusual as deaths in psychiatric care are not subject to independent scrutiny.

Mr Smith responded extremely positively. He agreed to assist the family and INQUEST in addressing all these issues and pledged his interest and support.

In a turnaround for these blog posts rather than ask INQUEST why they are supporting #107days I asked Sara how she felt:

Have to say that if INQUEST, particularly Selen, hadn’t got in touch in those very early days, we would probably be sitting at home now, having had a speedy old inquest and no answers or accountability. They really are an organisation who act with integrity, sensitivity and a huge knowledge of this area. They rock it basically.