The recommendations arising from the project led by the Independent Advisory Panel on Deaths in Custody (IAPDC)[1] with support from the Chief Coroner’s Office: ‘ “More than a paper exercise” – Enhancing the impact of Prevention of Future Death Reports’ (here), are to be widely welcomed. Indeed, it could be seen as a call to government and private agencies to catch up with practice guidance issued by the Chief Coroner in 2020 upon Prevention of Future Deaths reports (‘PFDs’) (here).
PFDs are not a punishment
Coroner’s have been saying for years that, “PFDs are not intended as a punishment; they are made for the benefit of the public”. However, the IAPDC found a culture of resistance to PFDs has developed whereby institutions consider such reports are to be avoided at all costs rather than being seen as a tool for needed reform of the services protecting all of our lives. The report recommends government agencies view these reports “an opportunity for organisations to improve, share good practice, and ultimately prevent custodial deaths – not as criticism to be avoided at all costs”.
As foreshadowed in 2020 – noting the inevitable time lag between a death and an inquest conclusion, rightly used by many agencies for self-reflection – even when action has been fully implemented at a local level a PFD report to a relevant national organisation to highlight the issues more widely may still be appropriate. The Chief Coroner encourages such reporting to national bodies. This recent IAPDC report, has underscored the importance of this and noted in its research that key opportunities for learning on a national scale are sometimes being missed, due to the misdirection of PFD reports. For example, one of the IAPDC’s recommendations is to expand the list of organisations to whom PFDs should be directed to ensure the right body with the power to implement changes receives the PFD as well as being sent to scrutiny bodies (eg PPO, HMIP, Independent Monitoring Boards (IMBs), and the CQC) and other relevant organisations, such as those falling within the UK’s National Preventative Mechanism.
Timing
The timing of PFD reporting also comes under the spotlight. Where there is an urgent need for action there is a perception that Coroners underuse their Regulation 28 power to issue interim reports during the investigative stage before the inquest hearing. Perhaps this arises because Coroners delay reporting in deference to the Reg. 28(3) requirement that ‘a report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner are relevant to the investigation.’
But this cannot mean Coroners are obliged to wait for the completion of disclosure to them before acting. Indeed only this week the PFD report following the death of Jessica Baker issued by the Liverpool Senior Coroner (here) shows how Coroners can take prompt action to raise matters of national concern in an effort to reduce unnecessary and tragic deaths. A similar example of a Prevention of Future Death Report at an early stage is that issued by the Westminster Senior Coroner following the deaths in Grenfell Tower, where an inquest has never been held (see our blog here). The Chief Coroner’s office is working on strengthening his guidance on urgent cases and interim PFDs in the forthcoming Coroners Bench Book. We can expect to see more and earlier reports in the future, particularly if the IAPDC’s recommendations for greater transparency and the proactive provision of all relevant information to Coroners officers at an early stage are heeded.
Post-inquest learning reviews
Other useful practical points recommended by this IAPDC report to improve the PFD’s bite include post-inquest learning reviews and ‘horizontal’ inter-agency information sharing becoming standard operating practice.
It is clear, that full engagement from PFD responders at the highest level is required to avoid deaths and of the outcome is that no action is to be taken that must be explained so the bereaved can understand why.
Online resources
The IAPDC also recommend the publication of inquest jury conclusions online and for those conclusions to be centrally recorded for learning purposes. The Chief Coroner’s office has already made PFD reports far more accessible by posting them on the judiciary website here with the ability to search by theme, date etc. and one can subscribe to specific email alerts when new reports are uploaded there. The work of Dr Richards and her team who produce the Preventable Deaths Tracker that categorises and reviews published reports (here) is also an essential tool for improving cumulative learning by all.
Overall, the IAPDC recommendations do not appear onerous and whilst implementation will require more focus from responders, it appears that this significant review has support from key stakeholders and we can therefore expect to see more robust action being taken to prevent avoidable deaths in the future. Fingers crossed.
The duty to make a PFD report
The PFD reporting powers of a coroner are, however, often misunderstood. The duty is to report and not to make recommendations. To do more than report an issue arising from the relevant evidence received in an investigation would offend against s5(3) Coroner and Justice Act 2009 (CJA) which forbids expression of an opinion on an matters others than the statutory questions in s.5(1) and (2). Making a recommendation is not lawful as it would amount to expressing an opinion about what should be done.
The scope of any investigation and inquest must still be securely tethered to evidence bearing upon those matters that a coroner is obliged to investigate by virtue of s5 CJA and having regard to s10 CJA. It would be wrong to widen the scope of an investigation to include broader matters. As the law presently stands, therefore, it is the only from the relevant evidence received that a coroner considers their duty under paragraph 7(1) of Schedule 5. As the higher courts have repeatedly recognised that making a PFD report is ancillary to the duty to investigate.
Footnote
[1] The IAPDC is an advisory non-departmental public body that provides independent advice and expertise on deaths in custody to Ministers, senior officials and the Ministerial Board on Deaths in Custody (MBDC). Along with a wide range of senior stakeholders, including Government departments, charities, and the Chief Coroner, it is a member of the MBDC but is entirely independent of Government.