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Effect of the Chief Coroner’s revised guidance on Regulation 28 reports to prevent future deaths

On 4 November 2020, the Chief Coroner issued revised guidance on coroners statutory powers, under Regulation 28 of the Coroners (Investigations) Regulations 2013 and paragraph 7, Schedule 5 of the Coroners and Justice Act 2009 to make a report for the Prevention of Future Deaths (PFD).

Where the coroner has conducted an inquest into a person’s death, which gives rise to concerns that the prevailing circumstances create a risk of future deaths, and action should be taken to reduce the risk of death, the coroner must make a report. The purpose of the PFD report is to encourage organisations to implement changes to help prevent future deaths.

What remains the same?

The guidance remains largely unchanged, with the legal duty, procedure, intended recipients and timeframes remaining the same. The circumstances in which the coroner must consider exercising their statutory duty is also unchanged; the PFD report may not be made until the coroner has considered all evidence relevant to the investigation.

It is still the case that PFD reports are not limited to matters which have been deemed causative of death and do not have to relate to a death in similar circumstances. The content of the PFD report should set out general matters to be considered but must not detail specific actions which should be taken. Where an inquest is before a jury, the coroner is encouraged to determine whether to exercise their discretion independently of the determinations of the jury. The coroner should always use the prescribed template form when writing a PFD report..

It remains the case that PFD reports must be copied to the Chief Coroner and can be shared wider with organisations such as the CQC, DHSC and HSIB.  As such the concerns highlighted can lead to regulatory scrutiny.

What has changed?

Although the law, and therefore the guidance remains largely the same, there are a few key amendments to note within the revised guidance.

Emphasis on PFD reports as a learning tool

The guidance is clear that the role of a PFD report is to provide learning points and to encourage change for the improvement of public health, welfare and safety; they should not be punitive. The guidance explicitly states that PFD reports ‘are not intended as a punishment; they are made for the benefit of the public’.

Consideration of remedial action already taken

The guidance states  that in deciding whether or not to make a PFD report, the coroner must consider evidence of changes which have already been implemented by an organisation. In these circumstances, the coroner may not need to make a report unless they deem it necessary to highlight the issues within a national organisation more widely. Where remedial action is planned or ongoing, determining whether a PFD report is required will be fact sensitive and the following factors may be considered in the coroner’s determination: the commitment to take action; any evidence in support of it; and the coroner’s assessment of the organisation’s understanding of, and commitment to addressing, the area of concern.

Local considerations

The coroner should consider the context of ‘local trends’ and any PFD reports which the individual or organisation has already received. Where issues have previously been noted, a PFD report is more likely to be made.

Issues that have not been explored at inquest

The guidance  confirms that the coroner should not issue a PFD report in relation to matters not explored as part of the inquest, and reiterates the need for matters contained in a PFD report to be probably or possibly causative of death.

Challenges to PFD reports

Once a PFD report has been issued, the coroner has no power to withdraw it. To correct a mistake of fact, the recipient must respond to the PFD report under the power in para 7(1) Schedule 5 of the Coroners and Justice Act 2009. The Guidance now refers to a template form which must be used when responding to a PFD report.

Alternatives to PFD reports

Although the coroner can write a letter expressing concern, where the duty to make a report does not arise, the guidance states that this ‘is an exceptional course of action’. Where the subject matter is the prevention of future deaths, writing a PFD report is the default position of the coroner. This is the case even where the failing relates to a Trust’s investigative process as this could impact the Trust’s ability to learn and therefore avoid future deaths.

How can we help?

We are dedicated to supporting organisations in improving patient safety and there are a number of ways in which our healthcare team can provide support:

  • Support in undertaking investigations
  • Reviews of deaths and action planning
  • Inquest support and representation, including preparation of Regulation 28 / PFD statements for the coroner
  • Serious Incident Investigation training
  • Duty of candour training
  • Inquest training
  • Support with concurrent investigations and enquiries

For further information, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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