Reviewing the documentary evidence

The Coroner, while properly going about their investigation into a death, will accumulate a number of documents. These will be both contemporaneous notes made by persons directly connected with the events surrounding the deceased person  and may include documents prepared well before their death, such as GP notes that may have a bearing on the questions the Coroner is seeking to answer.

There are also likely to be witness statements from those involved prepared possibly some time after the event as well as documented protocols and procedures used in any organisation undertaking care or supervision of the deceased.

All of these are likely to be presented to the expert witness either in written or more commonly electronic form with hopefully a paginated index detailing the contents. In addition the post mortem report will also be present.

Most importantly will be the letter of instruction giving details about the aspects of the investigation that requires the services of the expert and hopefully a series of questions regarding the collected evidence that the Coroner wishes the expert to consider.

Most of the instructions I receive are in essence asking if there is evidence of neglect in the care provided to the deceased and equally as important did that neglect directly cause the death such that if the acts of commission or omissions did not occur the deceased would either not have died or their life would be prolonged.

Neglect in the Coroner’s Court

While standard of care is a common concept in clinical negligence and those giving care have to act reasonably or responsibly in giving such care and not to do so is below an acceptable standard of care the concept of neglect is different and much more narrow in its application.

It was initially defined in Coroner’s findings (verdicts) as lack of care but this led to many reviews of decisions with differing interpretations in the High Court.

The case of Jamieson clarified the concept and remains probably as good a definition. Firstly. it changed the wording of “lack of care” where there may be confusion with the test in civil negligence proceedings to a death “contributed to by neglect”.

This therefore made the cause of death not neglect itself but another cause that could have been prevented if there was no neglect.

The judgement stated “Neglect in this context is a gross failure to provide….. basic medical attention…. for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for themselves”.

It is important to realize, and for any expert to bear in mind, that a simple error is not sufficient and that any lapse must be severe to meet the criteria of gross. It is also apparent that it is failing to undertake what is a common part of the care such as a full history or examination, the taking and repeating appropriately of observations, the failure to realize the severity of an illness and not investigating for such a possibility or referring from a generalist to a specialist to aid diagnosis and treatment would all fall under the category of basic as would others.

The other hurdle that is required to be overcome for a decision of neglect to be added to the inquest findings is that the neglect lead directly to the death of the individual. This is required to be considered using the civil standard of proof that on ‘the balance of probabilities’ the patient would not have died or would have had their life prolonged had their care met a reasonable standard.

Brief CV of the author
Colin Holburn is a Consultant in Emergency Medicine since 1992. He qualified from Edinburgh University in 1981. He is a Fellow of the Royal College of Emergency Medicine and of the Royal College of Surgeons of Edinburgh.

He has been an expert witness since 1992 now mainly undertaking Clinical Negligence and Criminal work as well as providing Expert evidence for inquests. He is instructed both by Claimants and Defendants and by a number of Coroner’s. His interests cover the whole spectrum of Emergency Medicine including the initial management of head and spinal injuries including cauda equina.

Excerpt from an article, originally published in Expert Witness Institute Summer 2018 Newsletter.