Back in 2016, the court was required to consider in R (Secretary of State for Transport) v HM Senior Coroner for Norfolk (the Norfolk case) whether a coroner had the power to order the Air Accidents Investigation Branch (“AAIB”) to disclose a cockpit voice and flight data recorder. Whilst the case was specific to an air accident (and the court said there was no power to disclose), the court considered the wider implications of independent investigations in the coroner’s court. In this article, Humerah Shaheen considers whether the principles established in this case may apply to healthcare investigations and in particular those investigations by the HSIB.
The Norfolk Principle
In the Norfolk case mentioned above, Singh J and the Lord Chief Justice considered the coroner’s powers to order disclosure and the wider implications of independent investigations in the coroner’s court. In particular Singh J commented at paragraph 49:
‘Finally, in my view, it is important to emphasise that there is no public interest in having unnecessary duplication of investigations or inquiries.’
The Lord Chief Justice at the time, went further to state:
‘I consider it important to underline the significance of paragraph 49 of the judgement of Singh J in the light of the submission made to us on behalf of the coroner that she had a duty to conduct a full inquiry into the accident as a death had occurred during the accident. The submission reflected the tendency in recent years for different independent bodies, which have overlapping jurisdictions to investigate accidents or other matters, to investigate, either successively or at the same time, the same matter. On occasions each body considers that it should itself investigate the entirety of the matter rather than rely on the conclusion of the body with the greatest expertise in a particular area within the matter being investigated. The result can be that very significant sums of money and other precious resources are expended unnecessarily.’
This highlighted the point that the coroner, in carrying out their investigation alongside an independent body, resulted in unnecessary costs being incurred and emphasised that coroners need not go over the same ground already covered by an independent organisation.
In recent inquests (relating to air and rail incidents) the courts have considered the Norfolk Principle including whether there is ‘credible evidence that the investigation is incomplete, flawed or deficient’ and in each case the coroner was ultimately bound by the Norfolk case.
HSIB investigations
The Healthcare Safety Investigation Branch (HSIB) aims to improve patient safety across the NHS through its independent investigations. HSIB investigations seek to identify common themes when something has gone wrong and to influence systemic change within the NHS. Investigations may run alongside a coronial inquest.
A question now facing coroners in inquests where there is a HSIB investigation, is whether they should go beyond that investigation and apply the Norfolk principle (including calling investigators to test whether the investigation is ‘incomplete, flawed or deficient’), or whether that is limited to those investigations by the Accident Investigations Branch (AIB). To date, our inquest team has seen this raised at pre-inquest review hearings with differing views expressed by the Interested Persons.
Ultimately, the conclusive view on this is unlikely to be reached until a case reaches the High Court. However, it is our view that whether the Norfolk principle applies, or whether the coroner needs additional evidence alongside the HSIB investigation, are distinct issues which should be decided separately. The Norfolk principle is based on the fact that the AIB are a highly specialist group of internationally recognised investigators with the greatest expertise in the area being investigated and their investigations can take many years, which is not the case for HSIB investigations.
It would be our general view* to challenge the application of the principle to healthcare investigations, even in cases where the HSIB report was accepted by a Trust, to avoid setting an informal precedent for future cases. If the findings of a report are accepted, that then leads on to the separate issue of whether any more evidence is required, but it is important not to muddy this with accepting that the Norfolk principle applies.
This area of law is likely to give pause for thought at hearings in the future and requires careful consideration and management. If you would like to discuss this further in relation to a specific issue, please get in touch with our experienced inquest team.
*This is a generalised position and should not be applied generically to each case without further, specific legal advice.
For further information, please contact:
Humerah Shaheen, Hill Dickinson
humerah.shaheen@hilldickinson.com
