Inquest Procedure for Nurses
A coroner (who is a legally trained individual, and who sits in a role akin to a judge) will preside over an inquest and will either hear the case alone or hear the case with the assistance of a jury. Most inquest hearing rooms resemble a courtroom and will have a podium for the coroner, an area for the advocates (lawyers), and space for members of the public and interested parties to sit. The press may well be present, too, and certain cases are likely to be reported in the press. Witnesses usually give evidence from a witness box. The inquest will be recorded in audio format and interested parties can obtain a copy, sometimes for a small fee.
A jury is empanelled where there is a particular where there is a matter of significant public interest. The process is inquisitorial. That means that there are no sides, in contrast to the adversarial system (such as in the criminal courts and the civil courts). This means that it will be for the coroner to direct which witnesses will be called, and what questions will be permissible.
The coroner is addressed as sir or madam. Some coroners are more formal than others. A few coroners will be robed and wigged and will expect the advocates to be similarly attired. Other coroners will sit wearing a suit or other formal attire. In such cases the advocates will appear similarly dressed.
An inquest is a formal hearing to examine the cause of death of an individual or individuals. Inquests are held where the deceased appears to have died an unnatural, unexplained or violent death. The coroner must follow the rules, statutes, and European Convention law (especially Article 2 Right to Life case law) and domestic case law when presiding. On occasions the advocates will raise points of law with the coroner, or make legal submissions, which the coroner will have to determine or take into account. Witnesses give evidence on oath or by way of affirmation. An oath is sworn on a holy text. An affirmation is a solemn, non-religious promise to tell the truth. Witnesses can be summonsed to appear, and there are procedures too for documents to be obtained through formal process, where disclosure is not readily forthcoming. There are penalties for witnesses who fail to attend an inquest to give evidence where they have been summonsed.
The coroner will take each witness through their evidence, taking notes of the important evidence along the way. In turn the respective interested parties may also ask questions of the witness. Usually the family of the deceased will have some questions for the witness. Many interested parties (people with a direct interest in the inquest) may be represented and ask questions. Some inquests can therefore last many days, if not weeks.
If sitting with a jury the coroner will sum up the evidence and issue legal directions. A jury will ‘return a verdict’, where empanelled, or the coroner will ‘record a verdict’ if sitting alone. A coroner may also make formal recommendations (known as Rule 43 recommendations) which the relevant named person or body must respond to within a prescribed time. Recommendations are formally published by the Lord Chancellor’s Office.
A verdict can take a number of forms but most often takes the form of a narrative verdict. A verdict must not determine criminal or civil liability, and so the verdict must be couched in careful terms. A verdict can on occasions be quite damning of a witness or healthcare establishment for their acts or omissions in caring for a client or patient, even when couched in careful terms. Alternative short form verdicts include: suicide, accident, misadventure, unlawful killing, natural causes.
A coroner may also determine that neglect contributed to or caused death. Or alternatively, simply find that acts or omissions contributed or caused death. For causation to be established the acts or omissions in issue must have directly contributed or caused death. A act or omission of care must have made more than a trivial contribution to the death of the deceased. The evidence is usually determined on the balance of probabilities. However, certain verdicts require the coroner or the jury to find that certain events occurred to a higher standard of proof: beyond reasonable doubt. A suicide verdict, by way of example, cannot be recorded unless the evidence is strong enough to prove matters to the higher standard of proof. If such evidence is not available, and in the absence of a clear explanation, a coroner may record an open verdict – which means that the evidence does not point one way or another.
Where evidence comes to light that a nurse has caused or contributed to death, there is a risk that clinical negligence or fatal accident proceedings may be initiated in the civil courts. It is therefore important that a nurse, when giving evidence, ensures that they put across their recollections in such a manner that their testimony and any documentation they rely on are correct, and fully advanced. It may be that certain nurse witnesses will need to be separately represented from any clinical institution that they work for or have worked for. Most clinical organisations will instruct counsel to represent their interests at an inquest. Advocates will question witnesses in some detail. It is not unusual in an inquest involving complicated evidence or a number of witnesses, for a particular witness to be questioned over a number of days. A nurse giving evidence must therefore ensure that they have sufficient familiarity with the documentation and the subject matter before giving evidence. Once they start giving evidence they are unable to speak to their own advocate or representative about their evidence or the inquest until their evidence is complete.
On occasions, the coroner will hear from a clinical expert witness on a specialist area of care or treatment, and interested parties may need to question the expert with some care and in some considerable detail. This is particularly the case where the opinion of the expert is controversial and not accepted by an interested party. In some cases there will be more than one expert and the parties may be permitted to call their own expert to give evidence in support of the approach that the witness took in a given clinical situation.
Many nurses during their nursing career will be required to give evidence at an inquest. Not all nurses will be at risk of being blamed for causing or contributing to a death, as many nurses will merely be called to give certain background evidence. Being familiar with the inquisitorial process will help to put nurses’ minds at ease to some degree. Representation at an inquest can also be beneficial, to assist a nurse to put their whole evidence forward, and to fully deal with points of law and legal submissions.
Nurses Defence Service represents nurses and clinical organisations at inquests throughout England and Wales, and in some other international jurisdictions. To speak in confidence about an inquest or about the possibility of representation at an inquest, call Nurses Defence Service on: 0800 01 22 506