Investigating a death - giving evidence

A SIGNIFICANT proportion of MDDUS advice calls relate to the death of a patient. This may be subject to further investigations or formal legal processes, such as a coroner’s inquest or fatal accident inquiry (FAI), and it is common for doctors to be asked to contribute. Such processes can be a source of concern, especially when a doctor’s involvement with the patient may be subject to scrutiny or criticism.

In our first article of this two-part series, we provided an overview of these processes and looked at how to prepare and write a report for an investigation into a patient’s death. In this second part we provide advice on what to do if you are called to provide evidence at an inquest/FAI.

Overview

England, Wales and Northern Ireland

A coroner is an independent judicial officer who investigates deaths. Where necessary, the coroner can hold a public fact-finding hearing in court, known as an inquest.

The coroner can designate any witness as an interested person (IP), a specific legal status which gives rights including the right to legal representation at the hearing, to ask questions of other witnesses and to obtain disclosure of documents. Essentially, an IP will play a more active role in the inquest proceedings, as opposed to a factual witness. The coroner may grant IP status to an individual or organisation because of a concern that an act or omission by that individual/organisation may have contributed to the death. If you are called to give evidence as an IP, contact MDDUS as soon as possible for advice and support.

Scotland

Following investigation of a death, an FAI may be arranged and presided over by a sheriff. Generally, FAIs are more involved than inquests and less frequent in a medical context. If you are called to attend a FAI, you should contact MDDUS for advice.

Neither the coroner nor sheriff can blame individuals, or determine civil or criminal liability for a death, but they can be critical of individuals involved and standards of care. Being criticised by a coroner or sheriff would necessitate self-referral to the General Medical Council (GMC).

Being called to attend

• You will likely have been asked to provide a written report about your involvement in the patient’s care and their medical history. Read our part one article for more detailed advice on report preparation. A good report may be read out in court and may avoid the need for you to attend in person.
• When called to attend an inquest or FAI ensure you note this clearly in your diary as a priority. If there is a problem with proposed dates, liaise early with those calling you to attend. Failure to attend without a reasonable excuse is an offence, and a breach of GMC guidance.
• If you are being asked to give evidence, it is important to establish whether you are a witness of fact or an IP. Ensure you promptly contact your employer’s legal team, who will likely be aware of the inquest and may be in a position to advise and support you. You can also contact MDDUS for advice and support.
• Consideration can then be given as to whether you will need legal representation. This may include, for example, reviewing the circumstances of your involvement in the care provided to the deceased to establish whether there are any concerns or potential criticisms, and determining whether any of the other witnesses or the family are legally represented.
• Members can contact MDDUS for advice and support at any stage of these processes.

Preparing for an inquest or FAI

• Familiarise yourself with your statement and the medical records in advance. Confirm with the party who has called you as a witness whether these will be available to you when giving evidence. You may wish to take a copy of your statement and the records with you to read while you are waiting to give evidence (although seek authorisation to do so from your employer’s legal team, where applicable). Ensure that these documents are transported securely and anonymised.
• Make sure you know where you are going and allow plenty of time to get there. There are court officials who can guide you to the relevant room and will help with any practical questions. Hearings take place in a variety of settings, from modern rooms to old courthouses, but all are formal courts.
• If you have legal representation, take their advice. It is normal to be nervous – consider bringing a friend or colleague for support.

On the day

• Dress professionally, perhaps as you would for a job interview.
• Make sure you turn your phone off to avoid unwanted interruptions while in court.
• When called to give evidence, you will be asked to take the oath or affirm. You will usually be standing in a witness box -- although if there is a particular reason you find this uncomfortable, you should raise this with the party calling you as a witness in advance in order that they may seek the court’s permission for you to be seated.

Giving evidence

• The coroner or sheriff will address questions to you, even when you have legal representation. These questions must relate to the key focus of the proceedings and to establish who the deceased was, and where/when/how they came by their death. You can also be questioned by any IP (including the family) or their representative.
• Listen carefully to the questions and make sure you speak up when responding; the entire court needs to hear your evidence. Your answers should focus on the particular question asked. Stick to the facts and be succinct; you will be asked for more detail if this is needed.
• If you have been called as a witness to fact, be cautious about being drawn into giving any expert opinion (which would be for an independent expert to offer). It is not unreasonable to provide the clinical opinions you formed at the time you were involved in the patient’s care, particularly where these help explain any actions you did or did not take. However, you should be wary of providing opinions on any other matter. Keep in mind that you may be asked to justify any opinion you provide and this must be within your competence.
• You must answer questions honestly. This includes responses of “I don’t know” or “I can’t remember” if this is the truth.
• You should stick to matters within your own experience and field of expertise, relevant to your knowledge of and involvement in the care of the patient.
• Once you have answered a question, stop talking and don’t feel obliged to fill a silence – this is not a test. What is important is that you provide accurate facts. . If you feel you need to have access to the records in order to answer a question fully and accurately, you should ask to see them.
• Questioning can become heated or could seem hostile, particularly where a family are legally represented and seeking to make a particular point. Keep calm and remain professional – don’t be tempted to retaliate in any way. The coroner or sheriff will step in if questioning is inappropriate or deviates from the purpose of the inquest/FAI.
• If you are an IP and have your own representative, they too can ask questions of you to ensure that all your relevant evidence is heard. They can also ask questions of other witnesses.

After being excused

• Once you have finished giving evidence the coroner or sheriff will excuse you. You may choose to stay for the rest of the hearing, or leave.
• Pay close attention to any assessment made by the coroner or sheriff, at any point during the inquest or FAI, in relation to the standard of care you provided. This is so you can be aware of whether the coroner or sheriff have been critical of you. If there is any uncertainty and you have not been legally represented, contact MDDUS. It may be necessary to seek further information from the coroner or sheriff to determine this at a later date.

Conclusion of a hearing

• At the end of the inquest or FAI the coroner/sheriff (or jury if there is one) comes to a conclusion, which includes the legal ‘determination’. This states who died, and where/when/how they died. The coroner/sheriff or jury also make ‘findings of fact’, which are based upon the evidence and are necessary to register the death.
• For inquests, the cause of death may be recorded as: accident or misadventure; alcohol/drug related; industrial disease; lawful killing; unlawful killing; natural causes; open; road traffic collision; stillbirth; suicide. The coroner (or jury) may also return a ‘narrative’ conclusion, setting out the facts around the death and the reasons for the decision, which is similar to the outcome of an FAI.
• The coroner/sheriff is obliged to consider any action that could be taken to prevent future deaths as a result of their findings. If they do identify any such actions they will issue a report to that effect, which requires a response. For coroners, this is known as a prevention of future deaths (PFD) report. If you are asked to contribute to such a report, you should seek the support of your employer’s legal team and/or MDDUS.
• Inquests and FAIs are held in public and there may be media interest. Have a look at our advice on handling the media.

Key points

• Inquests and FAIs are fact-finding hearings and are usually straightforward, but there are risks and therefore should be carefully considered.
• When a healthcare practitioner is at risk of criticism they are usually given the status of IP and should seek advice as soon as possible.
• Always seek advice if you are involved in an article 2 inquest or any FAI.
• If a doctor is criticised by the coroner or sheriff there is an obligation to self-refer to the GMC.
• Familiarise yourself with the GMC's guidance Acting as a witness in legal proceedings

Annabelle MacGregor is a medical adviser at MDDUS, Gordon McDavid and Myooran Nathan are medico-legal advisers at MDDUS