Investigating a death

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

In this first article in a two-part series, we provide an overview of the process and look at how to prepare and write a report for an investigation into a patient’s death.

Investigations overview

England, Wales and Northern Ireland

Coroners are independent judicial officers with a legal duty to investigate certain deaths to determine who the deceased was, and when/where/how they died. This is a fact-finding process and is not designed to apportion blame, although the coroner may make recommendations to prevent similar future deaths. That said, the outcome may have the effect of criticising a doctor, so care must be taken. Any doctor criticised at an inquest would need to inform the General Medical Council (GMC).

Since 2019, doctors in England and Wales have had a new legal duty to report certain deaths to the coroner, under the Notification of Deaths Regulations. Clinicians should familiarise themselves with the regulations to ensure compliance.

Broadly speaking, coroners must investigate a death that is:

• unexpected/unexplained
• a result of violence, negligence or an accident
• in custody or other state detention.

Not all reported deaths lead to an investigation. Sometimes the coroner will undertake initial inquiries and determine this is not required. The coroner will sometimes decide to hold an inquest to determine the outcome and a doctor may be required to attend. If you receive such a request, you should liaise with the legal representative for your employer without delay. You can also contact MDDUS for advice and support.

Scotland

All sudden, unexpected or unexplained deaths in Scotland must be reported to the Crown Office and Procurator Fiscal Service (COPFS). The Service has guidance for doctors, explaining which deaths should be reported. The procurator fiscal is responsible for investigating the circumstances and causes of these deaths. In the majority of cases, initial inquiries establish that the death was due to natural causes and no further investigation is required.

However, in some circumstances investigation may lead to an FAI. FAIs are mandatory where, for example, a death has occurred in the course of employment or whilst in custody. The COPFS and Lord Advocate can also decide to hold a “discretionary” FAI in the public interest where a death is suspicious, unexplained or occurred in circumstances giving rise to serious public concern. Compared to inquest hearings in the rest of the UK, FAIs are relatively uncommon in a medical context.

The aim of an FAI is to investigate the circumstances of the death and to consider whether anything reasonably could have been done to prevent the death. Like a coroner’s investigation, an FAI is a fact-finding exercise and should not apportion blame. However, where appropriate, the sheriff can comment on any defects in the system that caused or contributed to the death. The sheriff can also make recommendations to prevent similar future deaths.

A doctor can be called to attend an FAI and, given the significance of the process and the potential risk of criticism, it is important to seek advice from your employer’s legal representatives early. You can also seek advice from MDDUS. Doctors criticised at an FAI would need to inform the GMC.

Other investigations

Other investigations that might follow a patient’s death include local reviews by healthcare organisations or nationwide programmes designed to improve future care for particular patient groups. Examples include child death reviews (held whenever a child dies unexpectedly), reviews of deaths of patients with learning disabilities and domestic homicide reviews (for any person killed by a partner or family member).

Involvement in investigations

Confidential disclosure

When a patient’s death is being investigated, secondary care doctors who have provided care to that patient may be asked to provide information about their involvement. This might include provision of the patient’s medical records (in full or in part), and a request for a report, although the former is often dealt with by trust/health board representatives rather than individual doctors. In its guidance Good Medical Practice, the GMC requires doctors to cooperate with formal inquiries and offer all relevant information whilst also fulfilling their duty of patient confidentiality (which extends beyond death).

The GMC’s Confidentiality guidance states that “you must disclose relevant information about a patient who has died…to help a coroner, procurator fiscal or other similar officer with an inquest or fatal accident inquiry”. In addition, the law also gives the coroner and procurator fiscal powers to require you to disclose documents under your control that are relevant to the investigation, and to provide a written statement.

For other investigations, providing information may still be justifiable. Confidentiality advises that you should usually disclose information where it is necessary for the investigation of adverse incidents or for systematic reviews that are carried out with the aim of supporting changes that can help improve the quality and safety of healthcare delivery.

When disclosing information, be sure to only provide the minimum necessary for the request. Failure to comply with requests for records or reports when a death is being formally investigated could leave you open to criticism. If you are concerned, contact MDDUS for advice.

Preparing a report

When asked for a report, first consider who should prepare it. Within the healthcare team this would usually be the responsible clinician and/or any other doctor who was involved in the patient’s care relevant to the death. Keep in mind that the author of the report may be involved further, such as giving evidence in person at a CI/FAI.

It is vital to produce a well-written and reliable report. A comprehensive report can, in some instances, prevent the need to attend a hearing in person. Bear in mind also that your report may be used in other processes such as significant event analyses, duty of candour investigations, complaints or even GMC investigations.

What to include

In Good medical practice, the GMC emphasises the importance of being honest and accurate when writing reports, being sure not to leave out relevant information. Reports should be based on reliable information, such as the contemporaneous medical records.

It is acceptable to include your recollection, although this should be marked as such. In the absence of specific recollection or documentation, it can be helpful to explain your usual practice in such circumstances. Any reference to usual practice must be clearly indicated as such.

Usually you will be asked to provide a factual report. You may be asked to also include your opinion and in doing so you should only comment on matters within your sphere of expertise and experience. Be aware that you may be subsequently asked to justify your opinions.

Structure

• Start with a paragraph providing your personal specifications including a summary of your professional background (i.e. qualifications, experience, your role at the time and now).
• Next set out the purpose for which your report has been prepared, including any sources, and indicate who requested it.
• A factual account should then be provided in chronological order. Include dates (including the year) and times to ensure those reading your report can see what happened at each stage and who was involved. Clearly set out where you were personally involved and provide the name and job title of any colleagues you reference.
• Depending on the circumstances of your involvement with the patient, you should usually provide information about any significant past medical history that you were aware of, or medications the patient was taking, particularly if it was relevant to the care you provided. The coroner/fiscal will be interested in any conditions that may have contributed to the death, even if you cannot be certain.
• Given your report may be seen by family or others who were close to the patient, you might wish to include an expression of condolences for their loss.
• Your report must be signed and dated.

Top tips

• Focus your report upon the stated purpose and include all requested information. Usually this will relate to care provided near the death (i.e. the last admission and/or the last six to 12 months), and a summary of other significant medical history.
• Include relevant negative findings.
• Do not simply duplicate the medical records. The purpose of your report is to provide a supplementary explanation of what happened and to set out your involvement.
• Your report may be read by non-clinicians, such as patient relatives, so avoid language that is overly technical or potentially offensive. Add explanations for any medical terminology or abbreviations.
• Where you set out a clinical assessment or examination findings, explain what the clinical findings meant to you and your working diagnosis at that time. Describe what the plan was and what was conveyed, along with the rationale for your actions.
• Check for spelling or grammatical errors. The formatting should be consistent and the font style appropriate. If possible, number the pages and paragraphs.
• When you read it over, ask yourself whether your version of events is clear, particularly to someone without any knowledge of the case. Add further detail and clarification if necessary.

Contact MDDUS for more detailed advice on report writing. We can review reports in draft, including where you have prepared a report for the trust/health board/hospital legal team.

Further information

• Ministry of Justice. Revised guidance for registered medical practitioners on the Notification of Deaths Regulations. March 2020
• Crown Office and Procurator Fiscal Service. Reporting deaths to the procurator fiscal: Information and Guidance for Medical Practitioners. 2015

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

*Part two of this article in the next issue of Insight Secondary Care will offer advice on preparing for and attending inquests or inquiries.