Coroners seek new approach to encourage compliance with prevention of future death reports

The Chief Coroner for England and Wales, Her Honour Judge Alexia Durran, has recently taken a fresh approach to those failing to respond to prevention of future death reports by publicly naming and shaming 46 organisations online.

Those who failed to respond during the period of 1st January 2024 – 13th December 2024 are from across the country and include universities, police forces, NHS trusts, and enforcement bodies, among others. However, there are question marks over the data. We are aware of at least one case where the named entity responded but still appeared on the list, and anecdotally it seems others in the profession are aware of similar errors.

When will a PFD report be published, and what is it?

Under (s.1)(1) of the Coroners and Justice Act 2009 (‘‘CJA 2009’’) a coroner has a duty to investigate a death when they have reason to suspect that the deceased; died a violent or unnatural death, the cause of death is unknown, or they died while in custody or state detention. If these circumstances apply, the coroner will seek to establish who the deceased was, when, where and how (or how and in what circumstances when article 2 of the ECHR applies) they came to their death through an inquest (per s.5(1) CJA 2009).

If during the coroner’s investigation, anything is revealed that gives rise to a concern that circumstances that create a risk of other deaths will occur or continue to exist in the future, the coroner is under a duty to report those concerns. They must state that action should be taken to prevent the occurrence/continuation of such circumstances or to eliminate/reduce the risk of death created by such circumstances (per s.7(1) of Schedule 5 CJA 2009). However, a coroner is not expected to dictate what remedial action should be taken – instead, PFDs will be addressed to those whom the coroner believes may have the power to take such actions.

Upon receipt of the PFD, unless an extension is agreed by the coroner, the recipient is obliged to provide a written response within 56 days (per Regulation 29(4) and (5) of the Coroners (Investigations) Regulations 2013). The response needs to detail what remedial action will be/has been taken and when, or alternatively explain why no remedial action is proposed (per Regulation 29(3)). The response must be circulated to the Chief Coroner and interested persons (parties) from the inquest. It may also be sent to anyone else who the coroner believes may find it useful or of interest (per Regulation 29(6)).

Comment

Whilst the existing framework provides that responses are legally required, there is currently no corresponding penalties or sanctions for a failure to respond. Previously, studies published in the Journal of Public Health (Dernie F et al, (2013) ‘‘Preventable deaths involving opioids in England and Wales, 2013-2022: a systematic case series of coroners' reports’’, Journal of Public Health (Oxford England), 45, e656- e663) suggest responses were routinely either significantly overdue or, where responses were provided, they were not substantive.

Although the latest action may suggest an appetite from the Chief Coroner to promote further compliance, we are unaware of any current plans for amendments to legislation to implement any enforcement/sanctions. Instead, the focus appears to be on reputational damage for those named and with the hope the figure will be reduced on the next report. It is unclear if the Chief Coroner intends to take any further steps to highlight any entities that continue to not respond.

Many will see the inclusion on the list as a ‘badge of dishonour’ given the sensitive nature of the circumstances leading to an inquest. Namely, a fatality has taken place and a coroner has seen fit to issue a PFD on the basis there is a very real concern further deaths could follow should action not be taken.

Whilst clearly, coroners are now seeking to ‘add bite’ to the PFD mechanism by publicly naming and shaming entities, we are clear the list is not entirely accurate. As indicated earlier, we are aware of at least one organisation being incorrectly named from an inquest we were involved in, and anecdotally of others.

Further, the current list largely features public bodies. If corporate bodies are named on the list and accuracy is similarly not verified, it remains to be seen if a quantifiable effect of such reputational damage will lead to those named considering their position in response. Albeit our experience has been that corporate bodies named are keen to respond appropriately within the required timeframe.

It is also likely those involved with civil claims may view the list with interest and could cite the lack of engagement as exposing a disregard for health and safety.

Clyde & Co are specialists in dealing with fatal claims and inquests claims, and we have constantly monitor developments around this topic. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Alan Kells or any of our Safety, Health and Environment Regulatory team.