The Chief Coroner’s Guidance (CCG) No.44, published on 13 September 2022, aims to provide practical advice for coroners when they are obtaining the disclosure of documents in the first instance, in addition to the disclosure of relevant evidence, documents and/or reports to Interested Persons in a timely manner.
This helpful guidance also assists legal practitioners and inquest lawyers on the application of the law of disclosure and highlights the importance of the timely disclosure of documents, and the unfavourable consequences of late disclosure.
Obtaining disclosure
When coroners are in the process of obtaining disclosure, they must ensure that evidence is ‘relevant, reasonable, sufficient and proportionate to the scope of the inquest’. Therefore, coroners must not obtain documentation which falls outside of the scope and is unnecessary for their investigations. The coroner must also set a ‘clear’ deadline for when documentation is due. If this deadline is not met, the coroner can use their judicial discretion and, when ‘necessary’, issue a Paragraph 1 of Schedule 5 to the Coroners and Justice Act 2009 to compel the production of documentation, in which a fine can be given if documentation remains undisclosed.
Following publication of the CCG, we are seeing many coroners include a broad request for disclosure in their directions as standard, requesting copies of ‘anything relevant to the inquest’. Organisations should consider carefully what they need to disclose if faced with this direction.
Disclosure to Interested Persons
An Interested Person is anyone who has an interest in the proceedings. For example, family members are typically identified as an Interested Person and they have the ability to actively participate in proceedings, by having full disclosure of all evidence ahead of proceedings and can ask questions of the witnesses.
It is the coroner’s discretion to decide what documents should be disclosed to Interested Persons and when. The preferable option is for disclosure to be sent electronically (following the COVID-19 pandemic this has been encouraged). However, this disclosure is often prefaced with a warning to not forward confidential documents to third parties (unless the coroner has granted permission).
Timing
The guidance highlights the serious implications of late disclosure. This is due to the disadvantage it gives to the other Interested Persons, notably unrepresented family members, if they are receiving documentation which is integral to the proceedings close to the hearing date. Consequently, they may not have an opportunity to read and digest this information ahead of proceedings. The guidance captures this by highlighting the need for Interested Persons to have ‘sufficient information’ ahead of proceedings in order to participate and fully engage in the inquest process.
For example, if investigation reports are disclosed close to the inquest date, this can mean inquests are vacated and relisted. The reports can reveal admissions contributing or causing the death, and/or shortcomings of care and it is deemed ‘unfair’ on Interested Persons to receive this disclosure near the inquest date.
Post-Mortem Reports
The post-mortem report is often the first report to be the first document disclosed to the coroner. When the Coroner’s Office discloses the post-mortem report, particularly to family members, this will be in combination with a telephone call due to the sensitive nature of the contents of the report.
Interested Persons may request a copy of the post-mortem report, and the coroner should advise all parties involved that they are able to request a copy ahead of the hearing, however it is ultimately the coroner’s discretion to accept the request of disclosure. The guidance suggests this should be disclosed as soon as is practicable but this varies significantly between areas, with some coroners refusing disclosure until they have an investigation report, which can hinder the organisation’s investigation.
Medical records and redactions
The disclosure of GP and hospital medical records is common practice at inquest, and they are often referred to throughout proceedings. Occasionally, the coroner can request medical records from birth to death, but usually the request is specific to the scope of the inquest. If a wide ranging request has been made and it does not appear relevant, this should be flagged with the coroner. Pre-inquest review hearings can allow for submissions to be made by Interested Persons to narrow down the extensive disclosure of records. Records should also be redacted if they contain information about anyone other than the deceased (e.g. next of kin phone number).
Conclusion
Disclosure is integral to the investigation process and this guidance from the Chief Coroner is a helpful guide which emphasises the importance of disclosing relevant documentation in a timely manner. Compliance is essential for the fairness and efficiency of proceedings. You can access the guidance here.
If you have any questions around disclosure and inquests, please get in touch with our team of inquest lawyers.
For further information, please contact:
Lucy Vanderpump, Hill Dickinson
lucy.vanderpump@hilldickinson.com
