27 June 2023
A sensible policy proposal to monitor the recommendations of coroners’ inquests
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“How did this person die?”
In any organised society this is one of the most important and basic questions that can and should be asked.
Was it a death that could have been prevented?
Are there things that can be done so that similar deaths can be avoided?
These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.
“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.
But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.
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There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.
A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.
And there is such another way.
In England there is the ancient office of the coroner.
Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.
It is difficult to think of anything that serves a more fundamental public interest.
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But.
There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.
And this is a serious problem about our coronial system.
Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:
And here is another case study:
As Inquest say at the end of that case study:
“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”
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In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.
A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.
That there is even this gap is extraordinary.
Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.
There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).
Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.
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Inquest are today launching a campaign for such a body:
Inquest have also published this persuasive guide – from which the above case studies are taken.
Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.
And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.
It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.
For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.
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Over at his Substack, Joshua Rozenberg has written a good post on this topic.
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This has been cross-posted from my Empty City substack.
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Photo credit: wikimedia commons.
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It was ever thus. As a family historian I encounter many documents about the deaths of people. Death registrations, and certificates are publically available. But historically, there seems to be no properly nationally based organised system for record-keeping, retention or archiving wrt inquests and coroner reports. An ancestor might have a brief scribble in the very limited 2 inch square space on an English death certificate, but that’s usually the limit. The retention or archiving of inquest reports seems haphazard and largely follows local custom and practice.
My work has twice involved how coroners fit into the wider system. Once when they were issuing “new NHS numbers” to babies. The lack of coordination was a major problem and their autonomy seemed disproportionate. And then when I was at NHS England and wrote responses to “Reports to prevent future deaths”. It would have been a major improvement to know that there was a subsequent process which these would inform
During the responses to Shipman’s murders the lack of statistical analysis of deaths was noted, and it was calculated that this could have identified the pattern earlier. But there is still no duty to carry this out.
Today’s blog correctly identifies an important disconnection of this ancient post from the current needs.
My memory is vague, and others may be able to flesh this out properly, however there is a point to the following ramblings:
Back in the day when we had a functioning management structure to our railways ( and the chair of British Rail was my neighbour in a south London semi – good enough for anyone in the ‘60s), there were two things. Firstly a contractual obligation for all operational staff to self report all mistakes, with disciplinary procedures reserved for those who didn’t. Secondly, the Railway Inspectorate who investigated such mistakes and required the industry to implement preventive measures to avoid repetition.
An industry specific version of what is being called for here.
Just for interest I invite DAG’s readers to imagine an NHS (and indeed all public services) where all staff were comfortable in reporting their own mistakes, their employers listened sympathetically, took each event seriously, and openly committed to prevention of repetition.
Of course this would require rolling back on commercialisation of public services, curtailment of ambulance chasers, and government support for pride in being a public servant.
You may say I’m a dreamer…..
I don’t think OffQuest is catchy enough. Perhaps the Office of Public Safety (OOPS)?
I understand the need but I’m not convinced a national oversight body is the best means. The problem is that the wheels of government turn too slowly and regulations aren’t necessarily implemented by industry experts. Lobbyists have far too much influence. The long grass also beckons. Overseeing all this won’t speed things up and would be a massive task.
What is needed is a means by which a Coroner can refer their recommendations directly to relevant bodies which are charged by Government with updating and maintaining regulations. This relieves Government of the need to make complex technical regulations and also the opportunity not to regulate for whatever reason.
This system works well with air accident investigation. Recommendations are made by the AIB and referred to the CAA which is empowered to make regulatory changes to prevent the same thing happening again. It’s a direct, traceable and responsive mechanism.
Similar safety agencies could be created for building regulations, fire regulations, etc, empowered to review Coroner’s recommendations and implement them in the best way. Such an agency could also proactively investigate accidents and relevant regulatory recommendations.
“OffCoil”
It is a curious inconsistency that there are several agencies with specific responsibility to advance safety within a particular domain – HSE for safety at work, CAA for aviation, ORR for the railway, etc; but in other cases – building regs, fire safety, health service – it falls to the Secretary of State. The SoS, unlike those agencies, has no specific responsibility to consider and advance safety.
This article in effect argues for a large expansion of the safety bureaucracy. But I think before doing that, we need first to find a better model for these safety bureaucracies. The current problem is a lack of responsibility to take into account the proportionality of the cost of the actions they require to reduce risk, whether those costs fall on the state or private individuals and businesses.
The consequence of the present model is that we have an unbalanced safety expenditure environment. In some areas, safety is enhanced to a high degree, but at a cost which could do much more if it was allocated elsewhere. And it reduces the possibilities for our society, as there is only so much money. Our railway now costs so much to build and renew, we can’t afford to renew the railway we have. Not all of that is safety cost, but it is a substantial contributor. I think we might be better off as a society having more railway, even if it is a slightly more dangerous railway, as they do on the continent.
There is currently a well-advanced proposal, likely to come to pass, to set up a Road Safety Investigation Branch. Unlike rail and air accident investigation bodies, it will consider accidents in general rather than individual accidents. So there will shortly be some expansion of our safety bureaucracy into the road space. But there will still be no one with a responsibility to action what they find.
It shouldn’t be up to the likes of the HSE and the CAA to decide who pays or whether changes in regulation are proportional (I believe saving just one life is worth it). These agencies are experienced and are the gold standard of safety. Why choose less? The very last thing we should be doing is reducing their effectiveness.
The cost almost always falls on businesses providing the services being regulated, and thence to their customers. Grenfell is unusual in that it requires large amounts of retrospective and very expensive rework. Hence the Government has had to pay for much of it and should be paying for all of it. Usually new regulation isn’t retrospective, but where a new danger comes to light it has to be.
“I believe saving just one life is worth it.”
Worth what?
The HSE does not expect all risk to be eliminated. It recognises that the price of perfection is prohibitive.
NICE routinely decides that things which would save lives are not worth the cost to the NHS.
Similarly road research has shown for decades the statistical link between deaths and serious injuries and road improbvments (eg lighting). Investment appraisals put a value on the benefits. What we don’t do is pay for lights on every mile of every road.
In short, proportionality is at the core of decisions.
Except perhaps by coroners and lawyers on inquiries.
“Except perhaps by coroners and lawyers on inquiries” is a bit of an unpleasant pay-off to an otherwise constructive comment.
If people are interested in passively imbibing some history of the office of the coroner without really trying I can recommend the Crowner John series of mystery novels, written by a former Home Office pathologist. Think Cadfael but with more details on bodily decomposition…
I would be more sympathetic if the proposal were for a body to assess, develop and pursue where appropruate coroners’ recommendations. I say that because the few Reports on Action to Prevent Future Deaths I’ve seen:
a. don’t specify just what should be done – and shouldn’t according to the guidance[1]
b. don’t consider costs and disbenefits.
I can well understand the desire of relatives et al who agree “this should not happen again” and cry “you can’t put a price on a life”. But in public policy people have to put a price on life day after day in e.g. health care, road building, and product approval.
[1] ‘However, it is neither necessary, nor appropriate, for a coroner making a report under rule 43 to identify the necessary remedial action. As is apparent from the final words of rule 43(1), the coroner’s function is to identify points of concern, not to
prescribe solutions.’ (7/7 Bombings Inquests)
The problem is the scope of the oversight body. The AAIB, RAIB, MAIB and the various regulators all target their respective industry sectors, the HSE covers anything to do with health and safety regulations and other bodies cover more specific sectors. But when you take the full panoply of coronors’ possible recommendations, how do you scope the powers of a single oversight body to cover everything else? It would be a body with the power to compel anyone to do anything, which is unlikely to gain universal welcome. Maybe the starting point would be a coroners’ watchdog tasked with identifying serious cases that need to be followed up, with the power to demand answers from ministers.
Frankly, some oversight mechanism is overdue ….. by decades.
Only Parliament has any chance of forcing Ministers to do things – (but, given executive dominance, it is difficult).
Maybe some Parliamentary body ought to be given this monitoring role.
Any other body would have to be given enforcement powers and that could lead to extensive litigation.
There can be good reasons why government decides not to implement recommendations but issues questions about that ought to be raised in Parliament.
Ministers are the wrong people to do this though. They aren’t experts on the subject and they don’t have the time to keep track of all recommendations that might impinge on their remit. A single parliamentary body wouldn’t have the time to give proper oversight to this either. What this blog proposes is a monumental task.
Existing public safety agencies regulate specific industries, such as transport, and do an excellent job. The best way forward would be to take things like building and fire regulation and put them under the control of experts in the field working in publicly funded safety bodies. Parliament should set the parameters for those bodies to work within. In my view, that would focus the effort better and bring recommendations into practice sooner.
Something should be done. But to do something would be contentious and expensive. Just let sleeping dogs lie. One death is a tragedy and 72 is a statistic to be left in the long grass – especially coming up to an election.
Perhaps there should be a legal obligation on recipients of inquest and statutory inquiry reports to publish within 180 days their reasons for not addressing any recommendations made, with that decision specifically open to judicial review.
There are two rather different topics here and in Rozenberg’s parallel piece: follow-up from inquests and from inquiries.
The point about scope and responsibilities in a previous comment is well made.
For inquests I would start with statistical analysis across inquests rather than allocating any new responsibilities. When the patterns of concern become apparent through that analysis it will become much easier to understand where the responsibilities for follow-up should lie. Much of it will be with existing entities, some might require something novel.