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Fatal claims and inquests: are things improving for families?

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    There have been recent changes to the Coroner’s system in an effort by the Ministry of Justice (MoJ) to move towards the needs of the bereaved family. The specialist inquest solicitors in the Clinical Negligence Team welcome these changes, but still do not believe they go far enough for bereaved families.

    By Kerstin Kubiak

The Coroner’s Court is supposedly designed so that families are enabled to represent themselves at inquest hearings, which to my mind has always been a ridiculous proposition, for families are usually too emotionally involved and distressed to deal with questioning those who they may often deem responsible for the death of their loved one. In addition quite often deaths involve very complex issues, such as deaths in hospitals, where the medical knowledge required to consider the cause of death is beyond the reach of most people.

This has been brought to prominence in the news regarding the death of Jacintha Saldanha, the nurse who committed suicide following a hoax phone call to the private hospital caring for the Duchess of Cambridge. The family of Mrs Saldanha made an application for legal aid, which was refused by the Legal Services Commission. The report in The Independent newspaper in March 2013 stated: “Although they are automatically made interested parties and, as such, can intervene in the proceedings by themselves, the grieving Saldanha family would face the prospect of having to go head-to-head with experienced lawyers hired by this hospital. They would also have to negotiate the maze of rules which govern Coroner’s courts without legal help.”

The purpose of Inquests is primarily to perform a public inquisition as to who died, and when, where and how they died. These fundamental questions have not changed in centuries and the role of the Coroner remains to examine deaths on behalf of the Crown and to try to prevent similar avoidable deaths re-occurring.

Families who do not have the benefit of legal representation at the inquest hearing will be entitled to ask questions of witnesses themselves.  But more often than not the other interested party will be an agency of the state or private company (e.g. an NHS Hospital Trust or prison) and will have the benefit of a fully funded legal team to represent them, as in the Saldanha case.  This creates a total inequality of arms so that families are in effect left to fend for themselves in asking questions of witnesses with no legal or medical training to inform their questions.

Legal Aid for families to be represented at an inquest is now only available in very limited circumstances and is still means tested.  It is available in exceptional inquest cases, such as deaths in prisons, police stations, related to police actions or when under the care of mental health services. It is important to seek advice on thefunding options available.  Alternative forms of funding may be available for representation at the inquest if a civil claim is contemplated afterwards.

The MoJ announced in early 2013 that “supporting bereaved families during an inquest will be at the heart of the new Coroner’s system”. The MoJ, who now govern all Coroners, wants a system which puts families first and provides a much more efficient service, with time limits imposed on the Coroner’s Courts.

The new Chief Coroner, Judge Peter Thornton QC, appointed subsequent to the Coroner and Justice Act 2009, will receive reports on cases which are not listed for an Inquest hearing within a year of the death or when bodies are not released from mortuaries within 30 days. There will also be a heightened duty to disclose relevant documents before the inquest takes place.

Families will also be able to request that the inquest is relocated if it is agreed by the Court that it is in their best interests to do so, previously the inquest had to be heard within the jurisdiction of where the deceased died, not necessarily where the family lives. A recent example of this is the second Hillsborough inquest, due to be heard before Lord Justice Goldring, which may be relocated to Liverpool from Sheffield.

Most inquest and clinical negligence solicitors consider this a positive step forward towards improved rights and services for families, but much more needs to be done, particularly in terms of funding options for families at inquests, if a true equality of arms is to be reached.

Following an inquest the next of kin may wish to consider bringing a civil claim afterwards in order to seek compensation if their loved one died as a result of the negligence of someone else.  If the death occurred in hospital then you may wish to consider suing a hospital or suing a doctor involved afterwards if there has been medical negligence. Part of the compensation will often include a ‘bereavement award’ under the Fatal Accidents Act 1976. You are entitled to a bereavement award under UK legislation if you are the spouse of the deceased or the mother or married parents of a child who was under 18 years of age at the time of their death. The current entitlement is £11,800; this will increase to £12,980 after 1 April 2013.

If you are not entitled to a bereavement award under UK law, then if the death involved an agency of the state it may be possible to consider a claim under the Human Rights Act 1998 instead in order to try to claim an equivalent award.

It is important to seek the advice of a specialist inquest or medical negligence solicitor if you believe that your loved one died in unnatural circumstances and the Coroner has opened an inquest into the death, or if you are considering suing the NHS or suing a Doctor.

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