It is difficult to overstate the significance of Friday’s Supreme Court judgment.  The civil standard of proof will apply to all inquests in respect of all conclusions including unlawful killing.

Healthcare providers are likely to be particularly affected by this.  In cases where, previously, bereaved families would have advocated for conclusions of neglect, they will now be pushing for unlawful killing conclusions.  The elements, after all, are very similar:

 

Neglect means: Gross

 

failure to provide basic medical attention

 

that more than minimally, negligibly or trivially contributes to death.

 

Unlawful killing – Gross negligence manslaughter means:

 

Gross[1] breach of duty that contributes significantly to the death.
Unlawful killing –

Corporate Manslaughter means:

Gross breach of duty by an organisation in the way its activities are managed or organised (providing the way in which its activities are managed or organised by its senior management is a substantial element in the breach)

 

that causes or contributes to the death.

 

Until Friday, submissions in respect of unlawful deaths were very rare in Coroners’ Courts.  That will undoubtedly change.  Implications will be far-reaching and include the following:

  1. The bereaved will far more frequently seek unlawful killing conclusions.
  2. Interested persons will more frequently adopt a cut-throat approach (where each interested person seeks to avoid blame by criticising others).
  3. Given the risks, more interested persons and witnesses are likely to be represented.
  4. More employees will be represented separately from their employers.
  5. Providers will look to insurers for legal expenses cover in more cases, and insurers will take a keener interest in inquests given the risks.
  6. Inquests are likely to take longer and will be more costly.
  7. There will be pressure on investigating and prosecuting authorities to take action following conclusions of unlawful killing.
  8. Witnesses are much more likely to be guarded in their evidence, potentially to the detriment of effective investigations.
  9. There is bound to be a flurry of judicial reviews challenging the decision of whether to leave the conclusion to juries.

Healthcare providers would be well-advised to be more cautious about inquests and to seek legal advice at an early stage.  Providers will be in a very difficult position if they turn up to court unrepresented against a legally represented family seeking an unlawful killing conclusion.

[1] Does gross always means the same thing though? In the context of gross negligence manslaughter and corporate manslaughter, ‘gross’ means ‘so bad in all the circumstances as to amount to a criminal act or omission’.  That does not apply to the inquest conclusion of neglect as it is not a criminal offence.  Coroners and juries will therefore have to interpret the same word in two different ways.

 

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/

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