Friday, 29 November 2013

Injustice at Inquests

I have recently acted for the family of a patient, Andrea Green, who bled to death at Barnsley Hospital within hours of a routine discectomy operation. Her death followed a series of errors ranging from the surgeon operating on the wrong disc and in doing so damaging an artery, to a failure to maintain routine post-operative observations and then failure promptly to commence blood transfusion when a haemoglobin result indicated a "massive" internal blood loss. Within her narrative conclusion the Assistant Coroner concluded that there had been "neglect" - a gross failure to provide basic medical attention to a patient who was in obvious physical need of it.

The Inquest lasted three weeks. There was expert evidence from the pathologist, an anaesthetist and a spinal surgeon. Professional witnesses including the surgeon, two anaesthetists and two other doctors.  Senior managers including the then Chief Executive of the Trust also gave evidence.

The Trust and three individual practitioners were represented by Counsel with solicitors present as well. With no disrespect to the intelligent family members on whose behalf I acted, or the superb staff at Sheffield Coroners Court, there were many times during the Inquest when I pondered how the family would have been able to deal with the Inquest without legal representation. Perhaps you will forgive me for saying that they needed both an experienced barrister and solicitor to help them with this Inquest.

The family have no complaints about the Inquest and what follows is not directed at this particular case, some details of which can be found in this Mail On Line report. The Inquest allowed for those involved in Miss Green's treatment and care to be held to account. But what the case highlights, for me, is an injustice inherent in the present funding arrangements for bereaved families at Inquests.

As I have previously posted the civil claim was rapidly settled by the defendant Trust. Since that settlement preceded the Inquest, the costs of representation at the Inquest could not be claimed as part of the ongoing civil proceedings in accordance with the principles established in Roach-v-Home Office. However we managed to secure agreement to payment of a fixed sum for representation at the Inquest as part of the settlement of the civil claim.

In hospital death Inquests, it is extremely rare for public funding to be made available to families of the deceased. If there is a civil claim which is resolved swiftly then, unless there is a settlement of the kind we reached, the family will not be able to recover costs of representation from the defendant. The result is that in many such cases the family of the deceased will have no funds to pay for representation. In contrast, as in this case, representation is available for other interested parties, including what is in effect state funding for the relevant Trust(s).

Ironically the problem may be more likely to arise in cases of greatest concern in terms of clinical or systemic error. Those are the cases which will tend to lead to early admissions and settlement but which also give rise to the more complex Inquests. Such Inquests take longer and are more likely to involve representation of other interested parties, thereby putting the bereaved families at further disadvantage. Added to which, bereaved families are very likely to be upset or distressed by some of the evidence given at the Inquest.

NHS Trusts and individual healthcare professionals should be commended for seeking to conclude civil claims or potential civil claims promptly, but in so doing it becomes more difficult for the bereaved to secure representation at a later Inquest.

Recognising that extending the scope of legal aid sits uneasily with the rest of Mr Grayling's policies, I still say there should be public funding for representation of bereaved families at Inquests when there is no other available funding. And one size does not fit all: funding should be at a level to allow for representation suitable to the complexity and importance of the Inquest.

I was instructed by Andrew Harrison at Raleys Solicitors

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