How to approach PFD? A short guide for Inquest practitioners

The big picture

A decision by a Coroner not to write a Preventing Future Deaths (‘PFD’) Report is sometimes seen as a ‘good result’ for an organisation. This is understandable: after all, if the Coroner considers no PFD Report is needed, this may suggest that the organisation has learned any lessons for the future that were needed.

In a PFD Report, an independent judicial office holder publicly flags to organisations where action over (or review of) process or policy is needed to save lives. PFD Reports are about learning. As Chief Coroner’s Guidance No. 5 vividly puts it (at paragraph 2):

“a bereaved family wants to be able to say: ‘His death was tragic and terrible, but at least it’s less likely to happen to somebody else.’ PFDs are not intended as a punishment; they are made for the benefit of the public.”

Just as Inquests are not intended to be adversarial – it would be inappropriate to say that there is a ‘winner’ in an Inquest; nor should a Coroner’s decision over PFD be seen as a zero-sum game.

How the Court approaches PFD

Knowing how most effectively to assist a Coroner with whether a PFD Report is necessary requires understanding how Coroners approach PFD.

This goes beyond knowing the statutory test – in paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009 – for when the Coroner’s obligation to report is triggered.

It is virtually certain that the Coroner hearing your case will be aware of two relatively recent authorities in which the High Court gave practical application to the principles laid out in the Chief Coroner’s Guidance: R (Dillon) v HM Assistant Coroner for Rutland and North Leicestershire [2022] EWHC 3186 (KB) (Admin) and R (Gorani) v HM Assistant Coroner for Inner West London [2022] EWHC 1680 (Admin). (Jonathan Landau of these chambers appeared for the Coroner in both cases.)

Two key points are stressed in these authorities. Firstly, Coroners can follow whatever procedure most helps them on PFD. “It is well-established that PFD reports are ancillary to a coronial investigation” (Dillon, paragraph 43). It is “not the intention … that inquests should be lengthened, or their scope widened for the purpose of hearing representations on PFDs” (Guidance, paragraph 15). “Coroners may hear and give weight to representations by interested persons at the inquest as they see fit” (Guidance, paragraph 16). “PFD reports do not concern the rights of any person appearing at an inquest and no person has a right to be heard or call evidence that relates only to whether a report should be made” (Dillon, paragraph 43). In Gorani (paragraph 96), one ground on which the Coroner was challenged was rejected because: “No doubt it will often be the case that a coroner will find it helpful to invite such submissions, but there is no obligation on her to do so.”

All of this was neatly summarised in paragraph 69 of Dillon: PFD is “an ancillary issue on which the Coroner was not bound to adopt any particular procedure or to hear any evidence or submissions at all”. For practitioners then, if the Coroner chooses to hear submissions or PFD evidence from their organisation, the window of opportunity offered is narrow (the material should fit within the existing inquest length, as inquests should not be lengthened to accommodate PFD). It follows that practitioners would be ill-advised to test the Coroner’s patience by overwhelming the Coroner with lengthy or irrelevant material. The Coroner does not have to listen to them at all. Ultimately, the statutory test comes down to whether, in the Coroner’s opinion, action should be taken. In the end, it is the Coroner’s subjective view that decides the matter.

Secondly, and relatedly, although Coroners of course must act rationally in coming to their opinion, Coroners may come to different views on the same circumstances without falling into error. There is no one objective ‘right answer’ on PFD. This principle is applied on an everyday basis by Coroners in assessing whether action not yet completed suffices to render a PFD report unnecessary. As per paragraph 42 of Dillon:

“if a potential PFD recipient has already implemented appropriate action to address the risk of future fatalities, the coroner may not need to make a report. Whether a coroner needs to do so or not is a judicial decision for the coroner to make on a case by case basis taking into consideration all the circumstances. However, a report to a relevant national organisation to highlight the issues more widely may still be appropriate provided the evidence suggests that the risk of future fatalities may arise nationally.”

Paragraph 7 of the Guidance goes on to provide for cases where:

“action may not yet have been fully implemented by the potential PFD recipient, but such action may be ongoing, or the coroner may be told that a decision has been taken to take specific action in the near future. Occasionally, the need to take action may only have arisen from the evidence emerging at the inquest itself. Whether a PFD report is required in these cases will be highly fact sensitive, depending upon the circumstances of each individual case. Relevant factors may include the nature of the commitment to take action, any evidence in support of it, and the coroner’s assessment of the organisation’s understanding of, and commitment to addressing, the area of concern.”

On the facts of Dillon, the Court held that the organisation’s ““commitment to take action” was a factor that the Coroner was entitled to weigh in deciding that … a PFD report was not needed” (paragraph 61).

To give an example where the decision went the other way: I issued a PFD report relating to ambulance response times that included the passage:

“Although I accept on the evidence that action is being taken, on both local and national levels, to prevent future deaths as a result of this issue, the evidence of the results of such actions to date is that these actions have been demonstrably ineffective and have not resulted in a Category 2 average response time … that is even close to the target time.”

Presenting PFD evidence effectively – three tips:

1. Don’t try to go behind the facts. Evidence or submissions about PFD is not an opportunity to argue the toss when you or your organisation do not agree with the Court on the facts. Even if the findings of fact are made by a Jury, the Coroner is still bound by the Jury’s findings of fact (except perhaps in the unlikely event of the Jury making an error of law): the Coroner will still be signing the Record of Inquest completed by the Jury. In one of my cases, an organisation (which I did not represent) was asked to provide the Coroner with PFD evidence on an issue identified by the Jury’s findings of fact. Rather than seek to engage with or show reflection in light of the Jury’s finding, the organisation wrote to the Coroner reiterating factual points that were before the Jury and essentially arguing that the Jury got it wrong. The Coroner was essentially left with no choice but to write a PFD Report, as the organisation had not grasped the risk of death identified by the Jury and had not taken the opportunity to provide any meaningful “commitment to take action” or information as to how they would go about mitigating the risk in future.

Bear in mind also that, even if the Coroner opts to hear PFD evidence in the absence of a Jury, Coroners can and frequently do ‘reality check’ the contents of PFD evidence by asking questions in oral evidence of front-line staff. Let’s imagine that a PFD witness statement says that all front-line staff have received training post-death on the new and improved policy or process that would have prevented this particular death. In such circumstances, you should expect the Coroner to ask any front-line staff giving live evidence whether they have had recent training on the new policy / process, or heard of it, or what they would do now if faced with the same situation. Frequently, it emerges that the front-line staff haven’t even heard of the new policy / process that they have supposedly been trained on – this may be a significant flag to the Coroner that a PFD report is still needed as (further) action still needs to be taken. If this happens, you may well need to adapt your approach to PFD.

2. Focus on the Coroner’s actual concern. A PFD issue will generally be obvious from the facts of the case, from an indication from the Coroner pre-Inquest (e.g., in a Pre-Inquest Review hearing), or from questions asked (or answers given) during an Inquest. If it’s not obvious, do ask the Coroner at the end of the evidence if the Coroner has any PFD concerns that you can help them with.

PFD issues are supposed to be specific: “PFDs should be intended to improve public health, welfare and safety. They should not be unduly general in their content; sweeping generalisations should be avoided. They should be clear, brief, focused, meaningful, and, wherever possible, designed to have practical effect.” (Guidance, paragraph 4) Just as the PFD report is supposed to be brief and targeted, make the Coroner’s job more straightforward by adopting a similar laser-like focus to your PFD evidence.

Where you are aware of a specific concern, don’t give the Coroner 9 pages of waffle. Don’t give large amounts of unnecessary context or explain all of the tangentially-related changes. Don’t feel obliged to present your PFD evidence in a tabular format with an ‘action plan’, made up of vague ‘learning points’ (such as, to adopt a fictitious example, ‘reinforce the importance of communicating risk information when handing over care’) followed by equally vacuous ‘actions taken’ (such as ‘discussed the need to hand over risk information at senior leadership team meetings and got supervisors to brief their teams at a daily management meeting at 9am one day’). Give the Coroner something tangible, which can be grasped quickly and readily. If nothing meaningful has happened yet, set out a credible and sensible plan for when your organisation can make it happen and how.

3. Keep it real. While PFD is all about ongoing learning, it is not an exercise in seeking a counsel of perfection. In Dillon, the High Court held that, in her “reluctance to engage with what she regarded as “ideal world scenarios””, the Coroner was not wrong (paragraph 71). Coroners are entitled “to consider what practically can be achieved – otherwise, there is no real or actual action that could or should be taken.” Accordingly, “it is open to a coroner to take into consideration whether there is any realistic prospect, including on resource grounds, that a PFD report will be acted upon by its recipient” (paragraph 72). So, if there is a resource limitation to what can relevantly and helpfully be done, you can and should make that clear in any PFD evidence. If the issue is actually a national issue, then explain why – and go that step further to help the Coroner by informing them who is the relevant national body who could address the concern or the risk (for example, apart from the relevant government minister, in a policing context it could be the College of Policing or the NPCC or in a medical context it could be the CQC or NHS England).

How to respond to a PFD Report

So, the Coroner has put ink on paper as to the concern that exists in their opinion. Hopefully they have avoided making recommendations (other than, perhaps, recommendations that the organisation reviews matters) and have otherwise expressed their concern appropriately.

Whether you agree with the Coroner’s opinion or not, how should you respond? Bear in mind that the Coroner is (with the exception of extending the deadline for your response) now functus officio. Their duty is done by bringing the concern to your attention. Their opinion has been sent to the Chief Coroner and will in due course appear on the judiciary website (subject to any redactions). There is generally nothing to be gained by seeking to challenge a PFD Report. There is no appeal and it is difficult to imagine a successful Judicial Review of a Coroner’s opinion, where they are not bound to follow any particular process nor even to give a judgment or ruling, merely to act rationally and to fill out a form, in non-contentious terms, about a matter that arose in their investigation.

The short answer to how to respond is in Regulation 29(3) of The Coroners (Investigations) Regulations 2013:

“The response to a report must contain—

(a)  details of any action that has been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise and set out a timetable of the action taken or proposed to be taken; or

(b) an explanation as to why no action is proposed.”

To put it bluntly, you could respond in writing explaining briefly why the organisation disagrees entirely with the Coroner’s opinion and will disregard the PFD Report. Of course, the response to any PFD report would end up, via the Chief Coroner, on the judiciary website. So, mindful of a representative’s natural wish to present the organisation represented as being professional and responsible, it would be wise to prepare any response bearing in mind that the response will be open to scrutiny by the bereaved family, possibly other organisations locally or nationally, and indeed the press and the wider public.

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Authors

Peter Taheri

Call 2007

Related areas

Inquests

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