Posted by Ali Cloak, Partner
A look at the Notification of Deaths Regulations 2019
Ali Cloak, senior associate at Royds Withy King, considers the key provisions of the Notification of Deaths Regulations 2019, SI 2019/1112 and likely practical implications on coronial procedure as well as future developments.
This article was first published on Lexis®PSL Corporate Crime on 29 July 2019. Click for a free trial of Lexis®PSL
What do these Regulations require?
The Notification of Deaths Regulations 2019, SI 2019/1112 (regulations) require a registered medical practitioner to make an appropriate notification to the relevant senior coroner if a death occurs in prescribed circumstances. The regulations also set out the information that is to be included in such a notification.
Broadly speaking, under the regulations, medical practitioners must report a death in the following circumstances:
• they suspect the cause of death was unnatural
• the cause of death is unknown
• the deceased died in custody or otherwise in state detention
• they suspect that no medical practitioner is required to sign a medical certificate cause of death for the deceased person
• another medical practitioner is required to sign a death certificate for the deceased person but is not available to do so within a reasonable time
• or the identity of the deceased cannot be ascertained
SI 2019/1112, s 3(1)(a) provides a detailed list of scenarios deemed to be ‘unnatural’ deaths which must be reported to the coroner, but the death must still be reported if it’s thought to be unnatural yet does not fit under one of the listed examples (as per SI 2019/1112, s 3(1)(b)).
The regulations apply to England and Wales and will come into force on 1 October 2019, affecting the reporting for all deaths on or after that date.
Why are these regulations being introduced?
In short, they are designed to give effect to a reformed system for improving the quality and accuracy of reporting notifiable deaths, with a view to improving scrutiny to identify and deter criminal activity or poor practice.
The government commenced reform of inquest investigations and death certification processes following the recommendations of Dame Janet Smith, who chaired the inquiry into how Dr Harold Shipman had been able to exploit weaknesses in the death certification system to cover up his crimes. While most of the changes were implemented in 2013, by way of the Coroners and Justice Act 2009 (CJA 2009), the provisions in respect of death reporting were not finalised at that time. CJA 2009, s 18 provided that the Lord Chancellor may make regulations concerning the circumstances in which a death needs to be reported by a medical practitioner.
The provisions reforming the death reporting and certification processes were subject to a Department of Health consultation which ran from March to June 2016. The government response in 2018 committed to draft regulations to reflect the consultation feedback. The regulations were ultimately laid before Parliament on 15 July 2019.
Under CJA 2009, s 1, coroners have a duty to investigate a death where there is reason to suspect the deceased ‘has died a violent or unnatural death,’ or the cause of death is unknown, or, in all cases where the death occurred while the person was in custody or otherwise in state detention. These regulations intend to provide clarity to doctors so they are clear as to the circumstances in which they must report to a coroner. A third of respondents to the government’s consultation felt that there was insufficient understanding between medical and coronial professionals as to the meaning of ‘unnatural’ deaths and sought further definition.
In the absence of statutory provision, medical practitioners have been free to reach agreement with their Senior Coroner at a local level as to their reporting policy, which has led to inconsistent adoption of reporting practices between different coroner areas and gave rise to the potential for inaccurate or incomplete reporting of deaths.
How does this compare to current practice and guidance issued by the Chief Coroner?
There is no material change to the thrust of the reporting requirements currently in place, but the details are clarified and codified. In a bid to remedy the inconsistency in reporting practices across England and Wales, the then Chief Coroner, HHJ Thornton, published a Coroner’s Guidance note in 2016 (Guidance No 23) and accompanying reporting form, with the intention of providing clarity as to the position. However, the note expressly stated it was not intended to replace local procedure but was ‘simply intended as a guide for coroners and local authorities where no form is used.’
The new regulations enact a clear and express duty on medical practitioners to report deaths in prescribed circumstances and provide consistency and clarity for when this duty arises. Some categories from the Chief Coroner’s indicative list are not repeated in the list found at SI 2019/1112, s 3—such as abortion or suicide—but these would be deemed to fall within the scope of the new regulations nonetheless, by virtue of another appropriate category, such as ‘undergoing a treatment or procedure of a medical or similar nature,’ or under the umbrella provision for other unnatural deaths at SI 2019/1112, s 3(1)(b).
What practical impact will this have on those advising in relation to coroners’ inquests?
The explanatory memorandum accompanying the regulations acknowledges that the majority of medical practitioners already routinely report deaths which fall into these prescribed circumstances. However, pilot reporting schemes did identify confusion among medical practitioners as to what ought to be reported and so the regulations, assuming
appropriate dissemination, ought to result in improved consistency of reporting.
While there may be some additional deaths reported as a result of the greater clarity provided by the regulations and their status as a formal legal instrument, it may also mean that some deaths are not reported where they previously have been reported wrongly. In practical terms it is not expected that these regulations will have a marked effect on the number of deaths referred to the coronial system and/or the number proceeding to an inquest, though the true effect can’t be accurately predicted.
What other future developments impacting coroners’ inquests can practitioners expect in the future?
Since April 2019, a new system of medical examiners is being rolled out in medical settings, which ties in with the reporting regulations. This was another recommendation following Dame Smith’s inquiry and is intended to sit alongside SI 2019/1112 but has not yet been enacted as law. The intention is that the medical examiner role would provide greater scrutiny and better recording of deaths across the country.
The government’s consultation, ‘Coronial investigations of stillbirths’ closed in June 2019 and the government’s response is awaited. At present stillbirths fall outside of coronial jurisdiction, however there are widespread calls for this to change so that there can be greater transparency and consistency of processes for determining causes of stillbirths and to maximise learning opportunities.
The government’s negative response to the consultation on legal aid for inquests has met much resistance, not least as there have been consistent and persuasive calls for automatic funding for families in state-related deaths in a vast number of independent reviews and inquiries for many years. It is anticipated that further pressure will build to reform this area in a bid to widen access to justice and to facilitate equality of arms for bereaved families, especially where a death involves the state.
If you have any questions for Ali or the team about the Notification of Deaths Regulations 2019, or anything else related to inquests or fatal claims, please contact us today.
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