THE first part of this article, in the last issue of Summons, discussed how to respond when asked by the coroner to draft a statement in regard to the sudden death of a patient. Sometimes this may also involve appearing in court to amplify or explain that statement. This can happen even when the facts in the statement are not disputed in any way. Sometimes the coroner will summon clinicians who seem only very peripherally involved in the events surrounding the death. It is only natural that a clinician may be concerned that they will be criticised or faced with hostile questioning in an inquest. This is an area where support from MDDUS can be very important.
Appearing in court
A member who is summoned before the coroner where there are no indicators of hostility or of criticism is unlikely to benefit from legal representation. If anything, a clinician who attends a non-contentious inquest “lawyered up” will only draw unwelcome attention. It can be helpful to have a supporter attend to sit in the public area. Trusts will often send a manager along to court to support their employed clinicians in this way. More information on the handling of inquests where employing trusts are involved is provided towards the end of this article.
Clinicians should make sure they have the deceased’s notes with them and should also have a look through their own statement before attending court. There is no expectation of a photographic memory and it is far better to refer to the notes if there is doubt about the clinician’s recall of events. Having said that, it is embarrassing if there is a long leafing through notes looking for something that could have been anticipated and flagged with a post-it note.
The usual advice for witnesses unused to court appearances applies:
Turn up – attend on time at the right place and be prepared for a long day.
Dress up – you are a professional person so dress and behave as such.
Stand up – less important these days: most inquest witnesses sit to give evidence.
Speak up – the court needs to hear your evidence and the coroner needs to take notes so speak slowly and calmly.
Shut up – once the initial nerves are past, there is often a temptation to gabble the first thing that comes into one’s head; just answer the question asked and then wait for the notes to be taken before listening to the next question.
Perhaps a useful sixth piece of advice is to “Listen up”. Help the court by trying to answer the question asked. This is not a viva voce examination where something has to be said to fill awkward gaps. If the question is unclear then ask for it to be clarified. If you need to refresh your memory from the notes then say that you cannot remember and ask if you may check the notes.
After verifying identity, the coroner will ask the clinician to give evidence after an oath or an affirmation. The coroner then takes the witness through the statement either by asking for it to be read out or by question and answer. The coroner will then ask any questions he or she may have and will invite other interested parties to ask questions. This is the moment for the family to quiz the clinician and this has the potential to become heated and angry. The coroner will keep control in his or her own court and will intervene if the questioning is irrelevant or unduly hostile.
Once the clinicians have given evidence, they may well be released although it can be interesting to stay to hear the verdict.
Traditionally verdicts were one or two words, such as “misadventure” or “natural causes”. Increasingly, coroners are delivering narrative verdicts where they expand briefly on the main verdict. These short statements may point out where systems have gone wrong or could be improved to prevent similar deaths in the future. The coroner is not permitted to name any persons in these narrative verdicts but they can be uncomfortable for individual clinicians whose actions and responsibilities can be inferred from the verdict.
Most inquests are attended by a junior reporter or two and they are always on the lookout for a local interest story. Every clinician will be aware of whether or not their local rag likes a good “bash the Health Service” story. If there has been implied criticism of the clinician, the reporter may seek an interview as the parties leave the court. MDDUS can help with advice on how to deal with this if it happens. If a member is taken completely by surprise, it is unwise to say “no comment”. A better reply is to say how sorry you are for the relatives and family and then to refer reporters to the coroner’s verdict if they want any more information.
Inquests with legal representation
Sometimes the indications are that there will be criticism of an MDDUS member. In that case, legal representation is usually wise. MDDUS will arrange for the member to meet a legal team which can be a solicitor, a barrister or both. The meeting allows the lawyers to talk to the doctor or dentist, assess any concerns that may be raised by the clinician or from the notes, review any other evidence that the coroner may choose to disclose to the clinician (such as autopsy reports or statements of other witnesses) and brief the member on how the inquest is likely to unfold.
Lawyers cannot speak for the clinician who is a witness assisting the court and not a defendant. Besides anticipating difficult questions, they can intervene to remind the coroner that the questioning is becoming irrelevant and, as properly interested persons, can ask questions of other witnesses that can deflect implied criticism of the MDDUS member.
There are times when the family appears with a solicitor who writes industriously but says not one word, leaving the legally represented clinicians wondering what all that was about. Inquests can be a very cheap and effective way for solicitors to find out details of a case before deciding whether or not to bring a claim in negligence against a clinician or an organisation. The coroner may not point the finger of blame at individuals and only indirectly at trusts but the evidence presented, under oath, to the coroner can be used later to assess the prospects of a successful civil action.
Where the doctor or dentist is an employee of a trust (as opposed to a contractor with a trust), the coroner may summon a representative of the trust, such as the medical director, as well as the individual clinicians. In this case, the trust may well bring a legal team along. Provided there is no conflict of evidence between the clinicians and the trust, it is best if the clinicians attend under the umbrella of the trust, whether or not there are lawyers involved.
Problems can arise when a trust tries to protect its reputation by implying in evidence that individual clinicians are responsible for the death. If a trust instructs lawyers, their loyalty is to the trust and not to individual clinicians who happen to be employees of that trust. In this kind of case, the trust and its lawyers should advise the clinician that there may be a conflict and that separate legal representation will be a good idea. If a member is asked to give evidence at an inquest where his or her trust is appearing with legal assistance, early notice to the MDDUS adviser who is providing assistance is vital.
Mr Des Watson is a medico-legal adviser based in the London office of MDDUS