Coronial Castigation: Fines Issued To Healthcare Providers

On two occasions in the past two months, coroners in England have flexed their powers and issued fines to an NHS Trust and the clinical lead of a therapeutic community.

Legal framework

The coroners used Schedule 5 of the Coroners and Justice Act 2009 ('the Act'). This allows coroners to require the production (disclosure) of existing relevant documents or items by a deadline, provide evidence in a witness statement, or require a person to attend court to give evidence on a specified date. Unreasonable non-compliance can result in a fine up to £1,000.

Background

In the inquest into the death of Sophie Bennett, the jury heard that some of the staff at the therapeutic community where Sophie resided believed that the 'clinical lead' who had a 'doctorate' held a medical qualification, which he did not. After he failed to attend the inquest, the coroner issued him with a fine in May 2019.

Following an investigation into the death of Anthony Turnidge, the coroner for the Isle of Wight issued a fine to her local NHS Trust, reportedly for "failing to disclose investigations before the coroner closed inquiries into hospital deaths" after agreeing that there was a back-log of investigation. However, the details of what was requested, the timeframes and whether the investigation reports actually existed to be disclosed to the coroner, are not yet known.

These appear to be the first fines issued by coroners to the NHS or individuals working in the healthcare sector. As these become more widely known, an increase in the number of fines being issued is likely.

Advice

The power under Schedule 5 is limited:

The coroner can direct an individual to provide evidence in a witness statement, or to produce a document if it is in that person's 'custody or control'. Sometimes a draft version will satisfy the coroner. We have experience of a coroner attempting to use this power to require a healthcare provider to undertake an investigation and write an investigation report, but if the document does not exist it is unlikely that the power can be used in this way (although the person can be ordered to attend court and give live oral evidence) Any document or item required must be relevant to the inquest (although 'relevant' is interpreted in a broad manner) Some evidence cannot be required to be produced (e.g. if it could not be compelled to produce that document in a civil court, or if it is incompatible with human rights (or any other relevant EU obligation) or...