The Paterson Inquiry has again reared its head as the government gives its full reply to the findings of the independent inquiry led by the Reverend Graham James, former Bishop of Norwich.
For those unfamiliar with the origins of the Paterson Inquiry, Ian Paterson is a disgraced breast surgeon who was jailed for 20 years in 2017 after being convicted of 17 counts of wounding with intent and three counts of unlawful wounding of patients he had treated in the private sector. Paterson subjected more than 1,000 female patients, including children, over a period of 14 years, to operations that were either medically unnecessary or left them exposed to a recurrence of breast cancer. Paterson later became the subject of an Inquiry which concluded in February 2020 with multiple recommendations being made to prevent this kind of gross malpractice from occurring again. Of particular interest to the Inquiry was the inherent failure of the system to stop these events over so many years of practice in the NHS and independent sector.
The 15 formal recommendations made as a result of the Inquiry, though far reaching, fall short of demanding new regulatory and assurance processes. The chair of the Inquiry described a ‘healthcare system which proved itself dysfunctional at almost every level’, but did not advocate for a total regulatory overhaul. Rather, the focus of the recommendations was to ‘get the basics right and implement existing systems’ in both the NHS and private medical sectors, making full use of the resources available to ensure proper oversight and scrutiny of medical professionals.
Last November we reported on Mr Justice Linden’s decision to grant permission for judicial review on all grounds of the UK government’s policies and measures which had a bearing on the protection of care homes during the COVID-19 pandemic. The claim, which relates to patient discharge policy in England, will be heard later this month. In respect of Scotland, recently released information by public health authorities appears to acknowledge some important difficulties there in the early part of last year. This blog explores the key issues in both jurisdictions and sets the scene for the (English) judicial review later this month.
Partners Sarah Woodwark and Jane Lang discuss public v independent inquiries in the third episode of our vlog series, which leads to our future of care provision webinar on Wednesday, 7 October at 2pm. You can watch the full video and register for the event here.
The Chief Coroner for England and Wales issued further guidance on 28 April 2020 in the form of guidance sheet number 37 addressing COVID-19 deaths and possible exposure in the workplace. This will be of significance to those involved in inquests or investigations relating to COVID-19 deaths.
He confirms that the vast majority of deaths from COVID-19 arise from the natural progression of this naturally occurring disease and therefore will not be referred to the coroner. He reminds his coroners of the Ministry of Justice guidance on the Notification of Deaths Regulations 2019 which confirms that a death is to be typically considered unnatural if it has not resulted entirely from a naturally occurring disease process, importantly it goes on, where nothing else is implicated.
Guidance has been issued by the Chief Coroner with regard to the effect on inquests and the work of Coroner’s during the COVID-19 pandemic.
Effect on hearings/investigation
In common with other court hearings, the guidance confirms that no physical hearings should take place at present unless essential and urgent. The alternative is to hold such hearings remotely via video-link. But a general principal of coronial hearings is that they should take place in public and this would be hard to do via video-link. The Chief Coroner’s guidance suggests that a coroner conducting the hearing from a court with a member of the press in attendance and a family member present would mean the hearing had been held in public.
Many coroners are medical professionals and of course may be deployed to front line duties, so unable to prioritise inquest work at present.
In any case, we would expect that inquests are likely to be adjourned for several months at least due to staffing shortages and delays in investigations.
Another effect of COVID-19 is that carrying out a post mortem may be difficult at present due to lack of availability of pathologists and their staff, lack of post mortem and storage facilities, and also infection risk. If a post mortem cannot be carried out in sufficient time, then the guidance says the coroner should take a pragmatic approach and carry out investigations as best they can.
COVID-19 as cause of death
COVID-19 can be recorded as a cause of death and is a notifiable cause of death that should be notified to Public Health England. But, a death from COVID-19 is not a reason of itself to make a referral to the coroner. Instead reasons why the matter should be referred to the coroner might include:
Concerns about care or delays of care in the lead up to death
Failure to provide PPE or protect employees
Unclear cause of death
Deaths that require referral to the coroner in any case such as a death in state detention
It remains to be seen how the COVID-19 pandemic will affect the claims market in the future. The media has highlighted in the last week regarding the strain the social care and health care sectors are under with regard to lack of sufficient PPE, as well as delays in treating patients.
A full copy of the Chief Coroner’s Guidance can be found here.
In August 2017 the Care Quality Commission (CQC) had rated just three out of 17 online primary care services providers as having met the required safety standards. As the CQC does not have the legal powers to give online services an overall rating as it does with GP practices they have instead rated them by giving them a pass or fail to five key questions: