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Coroner Issues Prevention of Future Death Report

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/" target="_blank" rel="noreferrer noopener">Richard Copnall</a> (Instructed by <a href="https://www.isonharrison.co.uk/" target="_blank" rel="noreferrer noopener">Ison Harrison</a>, Leeds) recently represented the family of Mathew Dale at an inquest in Liverpool. Mathew was an adult with a significant learning disability, who was in full time residential care. When unsupervised, he removed padding from his incontinence pad, placed it in his mouth and choked to death.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The coroner agreed with the family’s submissions that the circumstances required the issuing of a prevention of future deaths report to the government [<a href="https://www.parklaneplowden.co.uk/app/uploads/2024/06/Matthew-Dale-Prevention-of-future-deaths-report-2023-0028_Published.pdf" target="_blank" rel="noreferrer noopener">you can see a copy here</a>]. Then government has now published its response [<a href="https://www.parklaneplowden.co.uk/app/uploads/2024/06/Reg-28-PFD-Response-Coroners-Report-DALE.pdf" target="_blank" rel="noreferrer noopener">you can see a copy here</a>]. The key points are that the Government has, since the inquest, published:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"lower-alpha"} --> <ol style="list-style-type:lower-alpha"><!-- wp:list-item --> <li>The “Care Workforce Pathway which provides (for the first time) a national career structure for those working in adult care.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A new professional qualification for those employed in Adult Social Care, which includes training in health and safety and life support and is backed by £50 million to support 37,000 individuals to enrol.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Matthew’s case provides a powerful illustration of the way in which a thorough inquest, with an experienced legal team can contribute to improvements in public policy.</p> <!-- /wp:paragraph -->

Coroners Statistics 2023 published 9 May 2024

<!-- wp:paragraph --> <p>The Ministry of Justice has published a report on Coroners statistics 2023: England and Wales.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The headline findings of the report are that the number of deaths reported to the coroners in 2023 (195,000) are down by 6% compared to 2022. The proportion of registered deaths has also decreased three percentage points compared to 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite the drop in deaths and referrals there was a 2% increase in the number of inquests opened in 2023 compared to 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There were 39,469 inquest conclusions recorded in 2023, up 11% from 2022. The most common short form conclusions were death by misadventure (25% of all conclusions), death by natural causes (14%), and suicide (13%).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is also of note for practitioners that there was a 41% increase in the number of Prevention of Future Deaths reports published. 569 reports were published in 2023, compared to 404 in 2022. Both the South West and the East Midlands issued more than double the number of Preventable Future Deaths reports in 2023 than in 2022, going from 28 and 21 to 60 and 43, respectively.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full report is available <a href="https://www.gov.uk/government/statistics/coroners-statistics-2023/coroners-statistics-2023-england-and-wales" target="_blank" rel="noreferrer noopener">here</a> and the statistical tables (for those that are particularly keen) are available <a href="https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fmedia%2F663b7c1a4d8bb7378fb6c3d8%2FCoroners_Statistics_Annual_2023_Tables.ods&amp;wdOrigin=BROWSELINK" target="_blank" rel="noreferrer noopener">here</a>.</p> <!-- /wp:paragraph -->

The King (on the application of) Mr Gary Parkin v His Majesty’s Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin)

<!-- wp:paragraph --> <p><em>Judicial review of a coroner’s decision on the scope of an inquest - Article 2 ECHR&nbsp; - High Court considering the existence of the positive operational duty in relation to the death of a 74 year old following a domestic fire caused by the unsafe use or disposal of smoking materials</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Mrs Rosslyn Wolff, age 74, was found dead in her home on 11 January 2022 following a domestic fire.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>A fire investigation concluded that the most probable cause of the fire was unsafe use or disposal of smoking materials.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mrs Wolff lived on her own.&nbsp; She was a hoarder.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>As well as being a smoker, she was diabetic.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>She had been detained briefly under the Mental Health Act 1983 on two occasions in September 2021, but her symptoms of confusion were then diagnosed as not proceeding from mental ill health but from hyperglycaemia.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The fire brigade had received multiple referrals for home safety visits over the years.&nbsp; It had tried to visit Mrs Wolff on 8 or 9 occasions and each time Mrs Wolff had either refused the visit or been uncontactable.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There had been one successful visit by the fire brigade a little over two years prior to Mrs Wolff’s death and smoke alarms were fitted.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Mrs Wolff had come to the attention of her local authority social services in November 2019 after her son, Mr Parkin, had raised concerns about his mother’s self-neglect, poor living conditions and abusive treatment at the hands of another family member.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>An initial multidisciplinary assessment was carried out.&nbsp; No mental health concerns were identified in relation to Mrs Wolff but ‘after much persuasion’ she agreed to a care package to support personal hygiene and medication compliance.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Health and social care professionals noted ‘ongoing risk presented by her unwise decision making’, including her refusal to engage in conversations about her ‘environmental circumstances’.&nbsp; The plan was to continue to offer follow-up and engagement with her social worker and a fire assessment was to be made of her home by the fire brigade.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There followed multiple visits by the social worker on which occasions Mrs Wolff either refused to answer the door or declined offers of help (including with getting her house cleaned and her garden cleared).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It was unclear from the evidence whether the fire assessment ever took place.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The legal framework</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The presenting question raised by Mr Parkin’s challenge was whether the Assistant Coroner had an Art. 2 investigative duty in relation to Mrs Wolff’s death pursuant to section 5(2) of the Coroners and Justice Act 2009 (‘Where necessary in order to avoid a breach of any Convention rights…the purpose mentioned in subsection 1(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death’).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>The test of necessity is passed if it is arguable that a public authority is in breach of a substantive duty under Art.2 ECHR</strong>.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The leading authority on the <strong>positive operational duty</strong> is the decision of the Supreme Court in <em><u>Rabone v Pennine Care NHS Trust [2012] 2 AC 72</u></em>, a case about an NHS voluntary psychiatric inpatient, known to be suicidal, who died by suicide on a visit home.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em><u>Rabone</u></em> identified the threshold test of <em>‘real and immediate risk to life’</em> as a necessary but not sufficient condition for the existence of the duty ([21]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The threshold test of ‘real and immediate risk to life’ was further considered by the Supreme Court in <em><u>R (Maguire) v Blackpool and Fylde Senior Coroner [2023] 3 WLR 103</u></em> at [241]: <em>‘A real risk is one that is objectively verified and an immediate risk is one that is present and continuing’</em>.&nbsp; The risk must be a risk specifically of death, not just of harm, even of serious harm ([38]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In addition to the threshold test of ‘real and immediate risk to life’, the following principles emerged in <em><u>Rabone</u></em>: (1) <em>‘[T]he operational duty will be held to exist where there has been an <strong>assumption of responsibility</strong> by the state for the individual’s welfare and safety (including by the exercise of control)</em>’ ([22]); (2) <em>‘[T]he <strong>vulnerability of the victim</strong> is a relevant consideration’</em> and <em>‘[i]n circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state’</em> ([23]); (3) The <strong>nature of the risk</strong> to life is relevant (<em>‘Is it an ‘ordinary’ risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an <strong>exceptional risk</strong>?’</em> ([24])).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>As to the scope of the positive obligation, <em>‘this will depend upon whether the authorities should have foreseen a real and immediate risk and what more they could be expected to do’ </em>(<em><u>Rabone</u></em>, [101]).&nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The Assistant Coroner’s decision</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The Assistant Coroner found that Art. 2 was not engaged.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>What was referred to as a ‘brief ruling’ concluded that the bare fact that a public body may have interacted with the citizen in question <em>“does not thereby determine whether Article 2 is engaged”</em>; that the evidence did not show that there was a real and immediate risk to Mrs Wolff’s life; and that in circumstances where Mrs Wolff was deemed to have capacity, she had the right to make unwise or inappropriate decisions and <em>“[t]he state does not take on added duties or responsibilities in such circumstances”</em>.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Assistant Coroner considered that <em>“[a]ny shortcomings or failings which might be established [could] be investigated within a Jamieson inquiry and scrutinised as necessary within a Report to Prevent Future Deaths, or even a finding of neglect if the evidence proved as much”</em>.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The outcome of the judicial review</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><strong>Real and immediate risk to life</strong>: Mrs Wolff was <em>‘certainly, up until the time of her death, a present and continuing risk to herself in many ways’</em> ([39]).&nbsp; The authorities ought to have been aware of a real and present risk of a house fire at Mrs Wolff’s home, which risk was a multifactorial one presented by a number of known factors, including Mrs Wolff’s poor smoking habits indoors, hoarding, recent history of carelessness with her diabetes medication (producing spells of confusion and debility, which was relevant to her ability to deal with any fire risk or actual fire) and her known unwillingness to be advised or take action on some or all of these issues ([44]).&nbsp; The risk of death was inherent in the risk of a house fire.&nbsp; The real and present risk of a house fire was, in all the circumstances, a real and present risk to Mrs Wolff’s life, objectively evidenced ([45]). Despite the ‘real and immediate risk of death’ threshold being a high one, it was passed in Mrs Wolff’s case.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>The Article 2 operational duty</strong>: It is not every risk to life – even in the case of a social services client or an NHS patient – which gives rise to an operational duty on the state to prevent it ([49]). Mrs Wolff’s circumstances were not the ‘paradigm’ for the operational duty arising since she was not a person over whom the state exercised control and she was not in the custody of the state.&nbsp; However, being subject to state control is only the paradigm case and the authorities do not say that being under state control is necessary for the duty to arise ([49]).&nbsp; The deceased in <em><u>Rabone</u></em> was not herself under formal state control at the time of her death.&nbsp; That being said, her circumstances were somewhat special in that had she insisted on leaving the hospital, the authorities could and should have exercised their powers under the Mental Health Act to prevent her from doing so (<em><u>Rabone</u></em>, [34]). Mrs Wolff’s circumstances were very different from these.&nbsp; The state had <em>‘no verifiable power to control or detain her’</em> and <em>‘no apparent basis in law for exercising control over her’</em> ([50]). She was not willing to cooperate with the authorities and they could not compel her to do so. &nbsp;Counsel for Mr Parkin argued that the state had nevertheless assumed responsibility for Mrs Wolff, even if not by the exercise of control, citing the fact that the multidisciplinary team had addressed itself to the relevant risk to life and put together a plan for her welfare and safety in that very context.&nbsp; This argument was rejected for the following reasons: (1) <em>‘Helping and supporting an individual, even in the discharge of legal duties, does not routinely give rise to the operational duty’</em> – <em>‘Something more is needed’</em> ([52]); (2) The care plan that was devised for Mrs Wolff was addressed to the mitigation of the risks, not their elimination, and was necessarily dependent on overcoming Mrs Wolff’s resistance to state interference.&nbsp; Whilst in cases of sufficient vulnerability the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, this point has two important limitations: (1) The example given in <em><u>Rabone</u></em> of ‘sufficient vulnerability’ is that of a local authority failing to exercise its powers to protect a child at known risk of abuse.&nbsp; Unlike Mrs Wolff, the child ultimately lacks autonomy in the matter; (2) the qualifier of ‘sufficient’ vulnerability indicates that not every degree of vulnerability will be relevant.&nbsp; Mrs Wolff was an adult of confirmed competence and psychiatrically sound mind and was fully informed of the risks she was running ([57]). As to whether the risk was an exceptional one giving rise to the Art. 2 duty, it was observed that the risk of a house fire is one we all run, and in some circumstances that risk is heightened (for example due to the nature or state of the house or because of factors particular to the individual (such as age or disability)).&nbsp; Mrs Wolff’s risks, even in combination, were <em>‘[still] of the kind that individuals, rather than the state, are reasonably expected to deal with’</em> ([61]).</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><strong>Arguable breach</strong>: If the Court was wrong in its determination that the section 5(2) necessity test was not passed, the next step would be to consider whether it was arguable that the duty had been breached.&nbsp; As to the scope of the duty and standard of what state authorities are expected to do faced with a real and present risk to life, the touchstone is reasonableness.&nbsp; In Mrs Wolff’s case, the authorities’ strategy was <em>‘necessarily long term, patient and opportunistic, based on nudging Mrs Wolff towards wiser choices, and making the most of such chances as she permitted for intervention’</em> ([69]).&nbsp; Even if the authorities were under an Art. 2 duty, its scope was a limited one and necessarily included respect for Mrs Wolff’s autonomy.&nbsp; Having regard to this, the Court did not consider it arguable that the duty was breached on the facts of Mrs Wolff’s case.&nbsp; The Court observed that whilst the threshold of arguability is a low one, <em>‘to be credible it must have some evidence base’</em> ([70]). &nbsp;The argument that the authorities could and should have done more in the months leading up to Mrs Wolff’s death <em>‘[did] not advance beyond the speculative to the credible’</em> ([70]).</li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

New Chief Coroners Guidance on Obtaining Information Regarding Social Media Use

<!-- wp:paragraph --> <p>On 2 April 2024, the Chief Coroner introduced new guidance (No. 46) surrounding the obtaining of evidence regarding social media use. This intersects with the Online Safety Act 2023 coming into force on 1 April 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As background, Schedule 5 of the Coroners and Justice Act 2009 gives a coroner the power to require the production of evidence or documents that relate to an investigation. Such notices can be sent directly to social media providers, or to the Office of Communications (Ofcom), and can be issued in connection with the death. However, Ofcom can only provide information that it holds or controls, so its information is limited.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Coroners may face difficulty in establishing to whom Schedule 5 notices should be sent to in order to obtain information about social media use. They may also struggle to frame notices in a way that elicits the most useful information, unless they are advised by someone with knowledge of social media and its evolving trends.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To assist coroners accessing social media information that is relevant to an investigation into the death of a child, the Online Safety Act (OSA) 2023 includes new provisions extending the information that can be obtained and disclosed by Ofcom to coroners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Section 101</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 101 grants Ofcom the power to obtain the relevant information from service providers in respect of a living person’s use of a regulated service that is linked to an investigation into a child’s death (e.g. someone’s social media account that demonstrates bullying of a deceased child), or the use of a regulated service by the child whose death is under investigation (e.g. where a child has been exposed to harmful content via a social media platform’s algorithms).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Examples of information Ofcom can obtain from regulated services include:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Content encountered by the child by means of the service;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>How the content came to be encountered by the child (including the role of algorithms or particular functionalities);</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>How the child interacted with the content (for example, by viewing, sharing, or storing it or enlarging or pausing on it); and</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Content generated, uploaded, or shared by the child.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Section 163</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under this provision, Ofcom may prepare a report for use by the coroner following the receipt of a Schedule 5 notice and can do so using its s101 powers to require regulated services to provide information that may assist with Ofcom’s report.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Practical considerations</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Coroners have previously been advised (Guidance No. 44) that they should only use Schedule 5 notices to compel disclosure where the disclosure is necessary and, unless there are exceptional circumstances, should attempt to obtain the disclosure by agreement before issuing a notice. To facilitate Ofcom exercising their s101 OSA powers, coroners will have to issue a formal Schedule 5 notice.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new guidelines advise informal engagement with Ofcom beforehand to discuss the reasonableness of the request, the coroner’s proposed timeframe, and how to structure the request so the coroner can obtain relevant, sufficient, and proportionate information, based on Ofcom’s knowledge and experience of the sector. Ofcom can contact multiple providers on a coroner’s behalf, which increases administrative efficiency, and can advise the coroner on how to frame the request so the information can be understood without the need for specialist analysis. For example, instead of requesting the code for a social media company’s recommender system, it might be preferable in a particular case to seek a description of how the recommender system operates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Coroners will need a adopt a case-by-case approach as to whether they choose to seek information from services directly or to approach Ofcom, weighing the benefits of each. Some investigations may already have contact with a regulated service through Interested Persons, making it possible to obtain information directly without difficulty, for instance, or Ofcom’s information gathering powers may be limited by barriers such as foreign law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new guidance also advises coroners to be mindful that social media companies are likely to hold extensive material about any relevant individual and that requests could return large volumes of information. In order to be effective, Schedule 5 notices should therefore:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"lower-alpha"} --> <ol style="list-style-type:lower-alpha"><!-- wp:list-item --> <li>Identify the child in connection with whose death a notice relates;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Identify a particular service or various services of interest (this information is likely to be available to coroners through discussions with the family and/or other Interested Persons);</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Describe the information sought, including what personal information is needed. If there is personal information that is likely to be returned in the context of the request that is not relevant, confirm that such information can be omitted or redacted;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Describe the timeframe within which the information is sought to enable a proportionate search to be conducted and to prevent the coroner from being overwhelmed with irrelevant information; and,</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Set a reasonable deadline for Ofcom to respond, which takes into account the time it will take for Ofcom to provide their own notice to the relevant services and obtain the information.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Commentary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new guidance is a big step forward in a world of growing technology where social media may play a part in the investigation into a death. There is a concern, however, in limiting Ofcom’s s101 powers to investigations into the death of a child, rather than any death. Although coroners can still contact social media providers directly for information about an adult’s social media use, the efficiency of an investigation into the death of an adult may be limited in lacking the ability to delegate this to Ofcom under the OSA. Whether this is extended in the future is yet to be seen, but until then, the guidelines are a welcome improvement to the inquest landscape that recognises the prevalence of social media in the lives and deaths of young people.</p> <!-- /wp:paragraph -->

Jury concludes that death of a detained patient by choking was contributed to by inadequate assessment, communication and mitigation of risks

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> represented the family of a midwife who died by choking on food whilst detained under the Mental Health Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Article 2 investigation in front of a jury explored the assessment and management of risk of self-harm and suicide, particularly around food, during the deceased’s period of detention.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The jury found that the deceased demonstrated a high risk of deliberate self-harm and suicide associated with food in the month prior to her death. The jury recorded that on the day of her death the deceased was at the highest level of risk.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In recording that the deceased died by suicide, the jury concluded in an expanded narrative conclusion that her death was contributed by the inadequate assessment, communication and mitigation of risks on the ward, including with food and mealtimes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During the inquest the Trust which provided care for the deceased accepted that the assessment and mitigation of risks associated with food and mealtimes was not robust. In particular there was no care plan around food, the risk assessment was not updated, and specialist input was not sought.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Leila was instructed by Clare Gooch at Switalskis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as Tier 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as Assistant Coroner for Gateshead and South Tyneside. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. Her full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a><em><u>.</u></em></p> <!-- /wp:paragraph -->

Inquest Costs: Separately Recoverable under the Fixed Recoverable Costs Regime

<!-- wp:paragraph --> <p>The Ministry of Justice (MoJ) has responded to the July 2023 consultation confirming that the costs of inquest proceedings will be recoverable separately, and the change will be inserted at CPR 45.1 (9) and come into force on 6 April 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the consultation, which opened on 21 July 2023 and closed on 8 September, the MoJ had indicated a provisional view that the costs of inquests should be separately recoverable to the FRC, and subject to assessment, if these costs were reasonable and proportionate. And in making the rule change, the MoJ has confirmed that inquest costs should only be recoverable to the extent that they would be anyway, outside of FRC.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The consultation highlighted recognition by the MoJ that as part of any proper investigation process, an inquest will typically pre-date, and may (to an extent at least) enable the litigation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the multi-track, where FRC will not apply, the costs involved in an inquest can be recoverable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The MoJ also acknowledged as part of the consultation that without the addition of a new rule in the CPR to provide for the separate recoverability of inquest costs in FRC cases, that the level of costs involved in the inquest would make the pursuit of any claim for compensation uneconomic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There were 74 responses to the consultation, which included a joint response from the Bar Council and the Personal Injuries Bar Association (PIBA). With the addition of this new rule for inquest costs, there appears to be recognition by the MOJ of the position outlined in the joint response from the Bar Council and PIBA that:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Inquests are an integral part of the process for investigating unnatural deaths and will inform and facilitate decisions taken about civil proceedings.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It would be wrong to be overly prescriptive in defining the cases when inquests costs ought to be recoverable. Those claims that may be made following an inquest are not limited to claims for dependency under the Fatal Accidents Act 1976. There will be claims on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934; and accidents involving fatalities which found claims for family and non-family members for psychiatric injury as primary and secondary victims. Claims involving the deaths of children and young adults can be complex, but the damages recoverable can be limited to the levels set out in the Fast and Intermediate tracks.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Many cases involving inquests will be complex. There will be some cases when the facts of an inquest greatly assist the determination of civil liability, and admissions may be made, and judgment entered. These cases may be suitable for the Intermediate Track as a result. It is important that the CPR allow for inquest costs to be recovered in these circumstances.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The addition of the new rule to allow the costs of inquests proceedings to be recovered separately clearly addresses the wide concern shared by many, including the MoJ, that the FRC rules as previously drafted may have impeded solicitors’ ability to pursue claims, and therefore may have impacted on the future ability of bereaved families to obtain representation unless they were able to fund this, wholly or in part, themselves. The new rule will therefore be seen as a positive step for access to representation in the inquest process.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team&nbsp;at Parklane Plowden Chambers and&nbsp;is ranked </em> <em>as a leading junior in Legal 500 and Chambers and Partners for Inquests and Inquiries. Leila’s full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a></p> <!-- /wp:paragraph -->

Inadequate Triage and Missed Opportunities for Assessment at Hospital: Woman’s death caused by severe pain hours after hospital discharge

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> represented the family of a 63-year-old lady who suffered an acute cardiac arrhythmia due to severe pain hours after she had been discharged from hospital in May 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The deceased, a former fitness instructor with a medical history of osteoarthritis to her right hip, had awoken with extreme pain to her right hip and required Entonox and intravenous morphine prior to transfer to hospital by ambulance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was held at the inquest that the triage within the emergency department was inadequate, did not include a pain score or pull through significant information onto the hospital records, including the opiate analgesia prescribed by the paramedics. It was also held that there was an under-triage of the deceased’s condition, and it was appropriate for the deceased to be admitted for a mobility assessment prior to discharge which did not occur.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was found that the death was due to a cardiac arrhythmia caused by acute adrenaline excess, as a result of the severe pain the deceased was experiencing to her right hip.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A narrative conclusion was recorded at the inquest in which it was held that there was an inadequate triage and missed opportunities for assessment at hospital.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Leila was instructed by Victoria Wanless at <a href="https://www.beechampeacock.co.uk/">Beacham Peacock Solicitors</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as Band 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as Assistant Coroner for Gateshead and South Tyneside. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters.  Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.</em></p> <!-- /wp:paragraph -->

Emma Bennett appears in a 2-week jury inquest following a death in police custody

<!-- wp:paragraph --> <p>On 4 September 2021 a young man sadly died whilst being held in police custody after he swallowed a large plastic bag filled with cocaine and heroin.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Immediately prior to his death, the man, a drug dealer, had been searched and arrested on grounds of possession of a small quantity of drugs. However, whilst being held in the rear of a police van, CCTV footage showed him to produce from his trouser pocket a further undiscovered much larger quantity of drugs and which he placed in his mouth.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Upon the realisation by the police of that fact in the custody suite, the man inhaled the bag and died from obstruction of his airways despite the attempts of the public ambulance service and the private ambulance service, for whom Emma acted, to resuscitate him.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Potential criticisms at the 2- week jury inquest before Senior Coroner for East London Mr Graeme Irvine centred on failures by the police to identify the bag of drugs in the initial search and on the ambulance services for failing to resuscitate the man.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The jury heard extensive witness evidence over a number of days including from the Home Office pathologist and from a witness giving evidence from Thailand, in respect of which issues of the decision in <a href="https://www.judiciary.uk/guidance-and-resources/practice-direction-taking-evidence-from-overseas-in-cases-before-the-special-immigration-appeals-commission/"><em>Agbakiaka</em></a> (<em>evidence from abroad; Nare guidance</em>) [2021] UKUT 286 (IAC) were engaged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Their findings were that the police’s conduct, by failing to perform a thorough search contributed to the man’s death as did his own conduct for swallowing the bag of drugs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of the ambulance services, the jury found that by the time of their arrival the man was not breathing, had no pulse and was in cardiac arrest. His chance of survival was accordingly very poor and there had been no contribution by the ambulance services to his death.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst a sad case for all concerned, from a practitioner’s perspective the inquest is of interest because of issues raised by it as to medical causation and contribution to a death as well as the nature of both the search and resuscitation protocols to be followed by the emergency services.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Emma Bennett is an experienced advocate with a previous background of criminal trial advocacy in the most serious cases. She has appeared in a number of high profile and factually complex inquests over the last 12 months. Details of her recent work can be found in her chambers profile <a href="https://www.parklaneplowden.co.uk/our-barristers/emma-bennett/">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Emma was instructed by Director, <a href="https://dwfgroup.com/en/people/r/rebecca-wyld">Rebecca Wyld</a> at DWF who is highly respected for her work in inquests and inquiries on behalf of public and private bodies in the healthcare sector.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case has received attention in the press including by the <a href="https://www.bbc.co.uk/news/uk-england-london-68034516">BBC</a> the <a href="https://www.standard.co.uk/news/crime/police-watchdog-man-choked-drugs-death-met-police-custody-b1133620.html">Evening Standard</a>, on the <a href="https://www.policeconduct.gov.uk/news/met-officer-failed-properly-search-or-monitor-man-who-died-custody-after-choking-drugs">police conduct website</a> and the <a href="https://www.doughtystreet.co.uk/news/jury-find-police-failings-contributed-death-man-police-custody">website</a> of the lawyers who appeared for the family.&nbsp;</p> <!-- /wp:paragraph -->