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.

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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:

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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?

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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.