The Senior Coroner for Inner West London, Dr Fiona Wilcox, has made a report to prevent future deaths[1] (a “PFD report”) in connection with her investigation into deaths following the Grenfell Tower fire. Her report (here), issued on 19 September 2018, is a good illustration of the potential breadth of a coroner’s powers: the report focuses not on fire safety but on future health screening and support for those survivors and others who now face the physical and psychological consequences of their involvement in this tragedy. 

The Senior Coroner’s concern is that some survivors and responders at the scene may have been exposed to significant inhalation of smoke and dust containing toxic substances, and so are left at risk of developing health conditions. Furthermore, many of those affected by the incident have suffered emotional trauma and harm to their mental health and need appropriate mental health support. Her report, directed at NHS England, is aimed at minimising the risk of affected persons slipping through the net and being lost from appropriate supportive services.

However, as the earlier coronial report in 2013, following the worryingly similar events in the Lakanal House Fire chillingly reminds us (see earlier commentary here), these coronial reports have little teeth.  

There is no coronial power in relation to the content, adequacy or implementation of the response to a PFD

Despite the breadth of the power to make a PFD report, they are only reports, there is no mechanism for implementing or enforcing the recommendations implicit in such PFD reports, and no systemic approach to maximise their effectiveness nationwide.

 

The Law

The issuing and receipt of a PFD report entails no more than the Coroner bringing some information regarding a public safety concern to the attention of the recipient.  There is a statutory duty to make a PFD report if:

“(a) a senior coroner has been conducting an investigation…into a person's death,

(b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and

(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances.”

The coroner must report the matter to “a person who the coroner believes may have power to take such action”.

The Grenfell PFD Report

In the aftermath of the Grenfell Tower fire, Dr Wilcox has reported to the Chief Executive of NHS England the following concerns about the potential wide ranging impact of this disaster:

  • Survivors of the Grenfell Tower fire, first responders and site workers were or may have been exposed to significant inhalation of smoke and dust containing toxic substances, and risk developing health conditions (including possibly mesothelioma following possible asbestos exposure).
  • Without appropriate health screening, there is a risk of missed or delayed diagnosis reducing life expectancy. The NHS needs to undertake risk evaluation then consider an appropriate regular health screening programme. Those affected also need guidance and information to help understand the potential health consequences of exposure to the hazardous environment of the site of the fire.
  • People affected by the incident have suffered harm to mental health or emotional trauma and need appropriate mental health support.
  • Generally a “scale and risk assessment of need and care provision needs to be undertaken to minimise affected persons slipping through the net and being lost from appropriate supportive services.”

The full material upon which the Senior Coroner has based her report is not available. However, her summary states that “no physical health screening programme has been put in place to monitor the health of survivors on an on-going basis”; and that extensive NHS mental health support made available to bereaved, survivors and residents, is only funded until March 2019.

While the coroner’s own investigations are suspended pending the public inquiry, police investigation and any prosecutions, her PFD powers subsist both before and on completion of an inquest. The Senior Coroner temporarily lifted the suspension to issue the report, which she understood would not conflict with the public inquiry’s own terms of reference.

The report is an interesting case-study to illustrate features of the coronial PFD provisions:

  • It illustrates how there need be no similarity between the future deaths which the coroner seeks to prevent and the deaths which the coroner has investigated, since this requirement was removed by the Coroners and Justice Act 2009. It was not necessary to make any link between, for example, smoke inhalation suffered by both the deceased and survivors in order to bring the case within the statutory framework.
  • In order to bring mental health support within the scope of her report (given that the statute requires a “risk of other deaths”) the coroner appears to have taken into account the risk of deaths from suicide precipitated by mental ill health, although she does not explicitly refer to this.
  • It is not a pre-condition to making a report that the coroner’s investigation is complete, and the coroner is not restricted (as was the case under the previous “rule 43” provision) to matters revealed in evidence at the inquest. This was key here, because concerns about future health screening are not relevant to the statutory questions the coroner would have to answer at an inquest in relation to the deaths, and in any event the evidence which might be heard by the coroner, should the inquests now follow the Public Inquiry at all, is likely to be more limited due to the convening of the Public Inquiry.
  • As the Chief Coroner’s Guidance No. 5 on Reports to Prevent Future Deaths states “in some cases the action to be taken following the coroner’s concern will be obvious. But it is not for the coroner to express precisely what action should be taken. A PFD report is a recommendation that action should be taken, but not what that action should be.”[2] In line with this, the Senior Coroner has expressed her concerns as set out above without specifying what action. However this is one of those cases where the action to be taken, broadly described, in the light of the coroner’s concerns, is obvious.

The legal effect of the PFD report is simply that the Chief Executive of NHS England must, unless the Coroner extends the period, provide a response within 56 days containing details and a timetable of any action which has been taken or is proposed, or an explanation as to why no action is proposed.[3] There is no further power in relation to the content, adequacy or implementation of such response.

Our earlier blog post by Christopher Johnston QC, Change the law to make reports to prevent future deaths work, highlighted the absence of a system for following through the recommendations made by the Coroner following the 2009 Lakanal House fire, and ensuring that appropriate steps were taken that may have prevented deaths at Grenfell. He suggested that coroners’ recommendations be made binding unless overruled by Parliament.   However such a step is unlikely.  Whilst coroners fulfil an important public health role when making these reports, the limits of their investigatory powers and their investigatory focus upon the particular death in issue means that there will often be many more factors in play in the wider circumstances than a coronial inquest can investigate. The response to a PFD can be, in some circumstances appropriately,  to refute the entire premise of the report and decline to take any action.  Coroners may not have the full facts or context before them when making their report and their concern may be unwarranted or misplaced  (see for example R(Siddiqi) v East London Coroner [2017] here).  But changing the reporting power to a power to make compulsory recommendations would first require much wider investigatory powers to be given to coroners, would lead to far longer and more complex inquests and would no doubt prompt a plethora of Judicial Review challenges. 

The only force behind PFD reports remains their “name and shame” value; public bodies in particular should be slow to dismiss a coroner's concerns.  The Chief Coroner has the power to publish reports and responses, and the Judiciary website states “In most cases the Chief Coroner will publish the reports and responses on this website.” However, in reality it is a minority of cases where the responses appear to be published there. Further and fundamentally, there is no mechanism for analysing and disseminating reports and responses and identifying a need for any systemic changes. The Report of the Independent Review of Deaths and Serious Incidents in Police Custody by Dame Elish Angiolini recommended[4] that ”An Office for Article 2 Compliance should oversee a coordinated, methodical and routine process around the dissemination of Coroners’ PFD reports and jury findings to all stakeholders, including (but not limited to) police forces, the College of Policing, the IPCC, and healthcare professionals.”    Sadly, that recommendation itself has not yet borne fruit.

 

[1] Under Coroners and Justice Act 2009, Schedule 5 paragraph 7(1)

[2] at paragraph 24.

[3] NHS England’s response appears due by 14 November 2018, but at the time of writing no details of a response or any extension of time to respond are available.

[4] Recommendation 101