In the UK, there is a difference between being a witness at an inquest and being a witness in a clinical negligence case, even if the events being considered come down primarily to the nature and purpose of those legal proceedings.

Essentially, a witness is there to provide evidence to assist a court or tribunal and then allow the court to make judgements and findings of  facts.

In this article, we will discuss where those differences lie and what is the distinction between the two different types of proceedings.

What is an inquest?

An inquest is a fact-finding inquiry into the circumstances surrounding an unexpected or unnatural death. It is conducted by a coroner, whose role is that of a judicial officer, but not a judge. A coroner can access any information from any source which is required to determine who the deceased was, when and where they died and the cause of their death. Witnesses at an inquest are typically asked to provide information about known events leading up to the death, but they do not undergo cross examination as they would at a criminal trial as this is an inquisitorial investigation and not to establish fault or blame.

At a coroner’s inquest, interested parties such as family members of the deceased, representatives of the establishment where the death occurred, and persons involved in the care of the deceased can ask questions of witnesses and submit legal arguments to the coroner.

What is a clinical negligence case?

A clinical negligence case investigates an allegation that the negligent actions or omissions by an individual  or organisation caused harm from the minor up to and including the death of another person. These cases are heard in the civil courts and involve legal representatives of the parties involved. A witness in a clinical negligence case will have provided a statement as part of the proceedings and normally this will be accepted, with any errors corrected as their evidence in chief and then they will be cross examined by the legal representaitves of the other party involved in the proceedings.

A witness in a clinical negligence case can be summoned to court to give evidence if necessary. A witness is expected to provide factual professional evidence and unless they are an expert witness should not give any opinion evidence.

The employer’s role in a clinical negligence case

Vicarious liability is a doctrine of law under which, where there has been clinical negligence, an employer’s legal team is liable for the defence of their staff. This is providing the clinical negligence incident occurred in the course of an individual’s employment. However, an employer may not be liable for the defence of an individual whose actions in committing clinical negligence were felt not to be the fault of the employer. A Supreme Court decision in 2020 stated that an employer can only be held responsible for an employer’s clinical negligence action if the action is ‘closely connected with their duties at work’. Thankfully these circumstances are rare and for most clinical negligence case the individual practitioner is supported by their employer’s legal team.

Equally, if a coroner decides that the individual concerned is an ‘interested party’ and may therefore potentially cause adverse findings at an inquest, this also means that an employer may not be liable for their defence.

The purpose of an inquest is not to apportion blame or establish criminal or civil liability. However, the lack of representation means anyone with an interest in the case can have findings of fact made against them as an individual rather than as an employee of an organisation. 

Giving evidence at any proceedings both at an inquest or in civil court can be daunting and upsetting for all parties concerned. Additionally, the outcome could have far-reaching consequences for individuals and for employers, which could result findings of negligence leading to the award of damages and formal recommendations made by the coroner.

Seek advice

While in most circumstances in clinical negligence proceedings an individual is supported and protected by the legal team from their employer at an inquest, this is far from clear. If the individual considers that there may be any finding against them as an individual at an inquest, they should seek advice from their professional indemnity insurer as soon as possible and certainly before they prepare a formal witness statement.

Even in clinical negligence cases, asking for advice early in the process can give the individual support from an independent source outside their employer. However, in those circumstances the support is more moral than legal.