Examination of Witness (Questions 20-34)
MICHAEL BURGESS
7 FEBRUARY 2006
Q20 Julie Morgan: I feel very concerned
about how some families cope with the whole process. The small
amount of experience I have had with constituents has shown that
there have been difficulties about communication with a court,
for example, when it is not the court in their home city. It did
seem to me that the whole process could be made much easier for
the families of the bereaved if bereavement training was built
into the system and all the officers of the Coroner's Court were
aware that their task was to ease the system as much as possible,
which does not always seem to happen.
Michael Burgess: You are right.
I think that the bereavement and the counselling and the way in
which those who are bereaved are managed is something that the
whole system has to accommodate, it is not just the coroner. He/she
may set the tone for it, but ultimately I have to let my officers
develop their own personal skills in addressing and meeting with
and dealing with those who are bereaved because they have much
more personal contact with relatives than I ever do, and most
of them are prepared to learn and they learn probably as much
by their own mistakes as by anything else. I am reasonably content
that broadly speaking they do a good job, not least because they
spend time on it and I think time is the one thing that people
do need. I am afraid it does not look very well on their overtime
sheets, but the reality is that unless they spend time with people
they give the impression of being rushed. If they give the impression
of being rushed then one impression that relatives may be left
with is these people do not care and that is the last thing in
the world that we want.
Q21 Julie Morgan: One of the things
that have caused a lot of distress is the long delays that sometimes
occur. For example, I have a constituent who is waiting for a
decision on whether there will be an inquest or not 15 months
after the death of her 18-year old son. Delays and a lack of information
sometimes cause as much distress to families as anything else.
Is there anything that can be built into the system that can help
the families understand why there are delays?
Michael Burgess: I think we would
all like to encourage those who have day-to-day contact with relatives
to make sure it is day-to-day and not year-to-year. I think at
the end of it we do have to reflect that many of us are short
of resources and that does mean having the ability to bring cases
forward quickly. In part that is because we may not have the court
accommodation but, equally, it may be because we have not got
the human resources to move cases forward. We have to try and
move the whole thing forward in tandem and I am afraid it does
not always work. It would certainly help if it were possible to
develop some discipline to require communications to be delivered
every so often.
Julie Morgan: I think that would be a
huge help. Thank you.
Q22 Keith Vaz: You have already mentioned
to the Committee that you felt that the £5 million figure
that was put on the cost of reforms by the minister yesterday
was a surprise to you, which presumably means you think it is
going to cost more. One of the other proposals that were put forward
was an acceptance of the recommendation by Lord Luce that there
should be a Chief Coroner appointed, someone to give leadership
to the profession. Would you agree with that?
Michael Burgess: I think we all
support the concept of a Chief Coroner. He will be publicly recognised
as a respected figurehead for the national service, but that presupposes
this is going to be a national service. It should result in some
sort of consistency, but unless there is the consistency of resources
the consistency may not be as all-encompassing as one might hope.
Yes, I think somebody that coroners who are working in the field
so to speak could look up to we would welcome.
Q23 Keith Vaz: I have to correct
myself. I think I have promoted Tom Luce to the Lords. Well, maybe
he will be eventually but certainly he is not at the moment. At
the moment do you feel that the coroners are too isolated, that
there is no interaction between people in different areas and
therefore any change is going to increase the sharing of good
practice?
Michael Burgess: We all feel—I
am sure I speak for nearly everybody—very isolated in our
own place. In my area we meet regularly with our neighbours in
order to exchange information and to ensure that we are consistent
so far as we can be. I am a `whole-time' coroner. I have those
on three of my five sides so to speak that are part-time coroners
who do not have resources even as meagre as mine and therefore
in that sense it is not necessarily possible to be as consistent
across the board as we would like. We know each other, we get
on with each other on a personal basis and I think on a professional
basis too, but inevitably there are difficulties because of the
differences in resources.
Q24 James Brokenshire: Mr Burgess,
let me move you on to the inquest system in detail. Do you think
the current system works?
Michael Burgess: I think it depends
what you expect it to do. At present the inquest is expected to
be a non-partisan, non-adversarial, inquisitorial process. Back
in 1982 the then Lord Chief Justice identified it as a hearing
without defence, without prosecution and so on. It is expected
to produce some factual detail, somewhat limited probably by many
standards today but, nevertheless, those are set in statute and
we strive to achieve that. The difficulty really comes when feelings
are running very high, as very often they are and the coroner
is very often in the middle trying to draw everybody's attention
to the fact that we are a fact finding process and not a blame
process and that itself causes difficulty. Last Friday Mr Justice
Collins in the Administrative Court wondered whether the time
had not come to abolish unlawful killing. He was saying this in
the context of judicial review of a coroner's decision, and he
went on to say that it was not possible for a coroner to decide
which conclusions to leave to a jury by excluding evidence that
could not be admitted in the criminal trial as an inquest was
not a criminal trial. We keep on drifting back towards an adversarial
decision and then being directed away from it. I think inquests
can be very difficult to run, particularly when feelings are running
very high and there appears to be a perception of inequality between
the different persons who may be interested and that inequality
may arise because some are represented by lawyers with lots of
paper and others are unrepresented. Certainly that is another
way in which the perception may suggest an unlevel playing field.
Q25 James Brokenshire: You mentioned
this issue about the adversarial tension that may arise in an
inquest and I hear the comments of the judge in that particular
case. What recommendations would you make to try and dissipate
that tension or to seek to give a greater emphasis towards the
factual, inquisitorial type of approach that may lend itself more
readily to the current inquest system?
Michael Burgess: I am not sure
that in the time allotted I could necessarily fully address that.
What I would say is that some of the biggest difficulties arise
where there are suggestions that the inquests should become an
Article 2 inquiry. Article 2 places the responsibility on the
state to carry out an extensive inquiry, a much fuller one than
an inquest normally should be, to address the broader circumstances
in which somebody has died.
Q26 Chairman: Are you talking about
the ECHR?
Michael Burgess: Yes.
Q27 Chairman: That is a circumstance
in which the state is involved in some way.
Michael Burgess: Yes, so deaths
in prison, deaths in police shootings and some hospital deaths
as well. The European courts seem to be quite enthusiastic about
applying Article 2 in areas that maybe the English courts have
not yet made a decision on but where they probably may have to
follow the European courts. It is an expanding area. This unnerves
many of us because the resource implications again are much wider
if one is trying to run an Article 2 inquiry than if one is running
a rather narrower inquiry. We quite often receive applications
that the inquest should be regarded as an Article 2 inquiry so
that the scope of the inquest can be broadened. One way that many
of us have tried to deal with this issue in very general terms
is to follow the House of Lords case in Middleton who said
it was no bad thing if we went into what we call a narrative verdict,
ie we went outside the narrower confines of the suggested form
of an inquisition verdict and launched into an explanation written
in factual, non-judgmental terms to try and explain things, and
provided that that process is followed logically and flows from
the evidence that is heard that could be no bad thing. It does
bring other problems and that is that the narrative itself requires
the evidence to support it and the moment you open that door then
time is one of those things that seems to run away. Those sorts
of inquests tend to run much longer. Other than that, I personally
quite often meet families normally before inquests and sit them
down and explain what the process is going to be or, if it is
after an inquest, what the process has been and try in that way
to clear a bit of the mystery for them.
Q28 James Brokenshire: Obviously
one of the issues is whether an inquest should be held at all,
and I noted your comment about the involvement of the state and
one would argue, therefore, the issue of public interest. The
Luce Review recommended that inquests effectively should only
take place where there is some sort of public interest in doing
so. Do you agree with that approach?
Michael Burgess: I am not sure
I would go quite as far as Mr Luce and his team went. Some years
ago, long before the reform process was ever started, I put a
paper to ministers suggesting that some inquests should be held
in camera, so outside the public gaze because the evidence was
not something that necessarily needed to be pored over by the
public. The law requires that all inquests be held in public and
I was suggesting that this change in the rule, which is a statutory
instrument rule, it is not in primary legislation, could well
make it easier for families to address things like suicides or
domestic accidents that have resulted in a death. The response
that I got, if I did get a response, I am not sure I did, was
that the law is set in stone, we are not changing it, but it does
seem that maybe this is now reflected in what the minister was
saying yesterday. If that is followed through it could result
in quite a reduction in the number of cases that are heard in
public. I do not go along with Mr Luce in suggesting that there
should be no inquest. What I am suggesting is that the inquest
process need not necessarily be held in public and might well
be a paper exercise with the result itself being published in
due course. It would certainly be a faster process and it would
mean that court accommodation would not become so pressing. We
would probably have a reduction of about 40% of cases in my area
that could be accommodated in that way. Talking to relatives about
it, their main concern is the public appearance. It might well
mean that quite a simple change in the rules could alleviate an
awful lot of their concerns. I hear what Mr Luce writes, I see
what the minister proposes yesterday and it may well be that we
are set on a good path for removing out of the public domain some
of the inquests that presently take place in public, but I would
be very unhappy if that resulted in no investigation taking place.
I think the investigation has to take place even if it does not
result in a public hearing.
Q29 Keith Vaz: Just following on
the line of thinking of the Luce Review, do you think that would
reduce the number of inquests that would actually be held or would
it have an impact at all? What do you think might be the impact
of having some sort of direct public interest test before determining
whether to go for an inquest itself rather than just examining
the issue on paper from the factual evidence presented?
Michael Burgess: I think it depends
how wide you draw the public interest scenario, where you put
the brackets exactly. Certainly I think there could be quite a
reduction.
Q30 Chairman: Scotland gets by with
a relatively small number of fatal accident inquiries and no inquests
at all.
Michael Burgess: Exactly, Chairman,
yes.
Q31 Dr Whitehead: I want to ask you
some questions about the system of death certification. What weaknesses
do you think there are in the existing system, if you believe
there are weaknesses at all?
Michael Burgess: Undoubtedly there
are weaknesses and the weaknesses were fully explored and explained
by Dame Janet in her third report. That has highlighted the difficulties
that all those who have an input into the system see, whether
it is the doctors themselves, whether it is the cremation referees
or those who are signing as doctors parts of the cremation forms,
or indeed coroners and the registrars. The document at the moment
is relatively simple and yet it does not seem necessarily to be
understood by all the users. As I explained a few moments ago,
many of the referrals that come to us seem to be brought by doctors
who are unfamiliar with or cannot put their open case into the
narrow confines of the certification system and so inevitably
we do get a lot of referrals which may well then result in post-mortem
examinations and others being done because the system is not flexible
enough to allow us to find some other accommodation to avoid post-mortem
examination. Dame Janet in her report, as I am sure she will explain,
fully assessed the situation. Doctors are required by law, if
they have been in attendance, to complete a medical certificate,
but then if they go on holiday they cannot complete it, so that
sort of scenario there, unavailability, inevitably brings to coroners
a lot of cases that otherwise should not come at all. The fact
that we have a system where doctors use referral services at night
and out-of-hours inevitably means that a doctor attending when
somebody has died may not themselves be familiar with the patient
and indeed their only duty towards that patient is to confirm
that they are no longer alive and then they hand it back to the
practice at the next working time. These are features that have
been introduced into the system because of the way that medicine
is now practised. I certainly would be in favour of a radical
overhaul of the medical certification process. I am not sure I
necessarily would go all the way that Dame Janet suggests, but
I would certainly go a long way further than we have got at the
moment.
Q32 Dr Whitehead: I would be interested
to hear what you might support in terms of an alternative system.
As you said, Dame Janet proposed a double-death certification
system. Would you favour that system or would you consider it
is workable?
Michael Burgess: I would suggest
that we should apply the same criteria to cremations as to burials.
The theory, of course, is that if a burial has taken place and
if there is any doubt then we can have an exhumation. The reality
is that exhumations are only carried out in extreme circumstances.
It would be much better to make sure that as much information
is gathered from the body of the person who has died before it
is buried—in exactly the same way as is done in a cremation.
They have tightened up the cremation regulations and I would have
thought these should be mirrored inside the burial process as
well. It is a process that clearly needs to be supervised and
disciplined and I am not sure that is possible with the present
level of training that most doctors have got. I may be maligning
them, for which I apologise. I think they could find it very difficult
without extra training.
Q33 Dr Whitehead: There have been
proposals put forward in the document "Reforming the Coroner
and Death Certification Service" which appeared to suggest
essentially a three-tier system. Firstly, a verifier of the death
and you have mentioned a doctor who is not that person's doctor
may simply verify the death, and then, secondly, the certificate
of the medical cause of death, as is the case at present, and
then, thirdly, a medical examiner who would be employed within
the coroner system. Would you favour that distinction in stages?
Do you think the idea that there might be a system of medically
trained personnel in the coroner service would be a good system?
Michael Burgess: I certainly believe
that we should have more medical experienced input than we have
got at the moment. At the moment we rely very much upon the input
that individual practitioners give us when they tell us about
a particular case coupled with the pathologists that we use. If
they are medically qualified, and most coroners are not, then
of course they have their own medical knowledge as well to fall
back on. That said, many of us who have been in the service a
long time have got quite a lot of knowledge, even if it is merely
from seeing the papers passing across our desks. We certainly
would support having more medical help. I do not know precisely
how that medical help can be brought in. I did see in the minister's
statement yesterday and in the briefing paper a suggestion that
the Department of Health was going to make a contribution. Precisely
what form that contribution would take and how it would ease the
lot of coroners on an individual case-by-case and a day-to-day
basis I would not know, but it would certainly seem to me that
there should be some cross-relationship between the medical services
locally and the coroner service without it being too cosy.
Q34 Chairman: Mr Burgess, thank you
very much for your help this afternoon. It may be that as these
things develop you might want to submit some further benefit of
your experience to us by way of written evidence and we would
certainly welcome that as the detail starts to be examined.
Michael Burgess: Thank you very
much indeed, Chairman. If you feel I can offer anything else,
please let me know.
Chairman: Thank you very much indeed.
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