Examination of Witness (Questions 1-19)
TOM LUCE
CB
25 APRIL 2006
Q65 Chairman: Mr Luce, welcome. We are
very glad to have the benefit of your evidence as things have
moved forward a little since you reported comprehensively on this
issue. You gave us a helpful written submission, in which you
say that the coroners' system serves multiple purposes, serving
the bereaved families' need for clarity and contributing to public
health and safety. Do you think the reforms that the DCA is now
proposing will improve the current system and increase its ability
to achieve these objectives?
Tom Luce: Sir,
I think that the reforms that are now being proposed (that is
to say, those that were included in the DCA publication of February
this year) will improve the coroners' system within limits. It
seems to me that they are likely to have very little effect, as
they have so far been described, on the death certification system,
which seems to me to be a very serious lack in the present situation,
Chairman: We will return to that particular
issue of death certification in a moment.
Q66 Jeremy Wright: Let me ask you
a little more about the position so far as the activity of coroners
in this country is concerned and the international comparisons
that we can make with other jurisdictions. First of all, coroner
activity rates—and to describe them in that way is perhaps
a bit too blunt, but you know what I mean—seem to be higher
in England and Wales compared with other jurisdictions. Can you
help us with why that is? Particularly the increased number of
autopsies compared to other jurisdictions.
Tom Luce: I will do my very best
to. We thought very carefully about this when we were doing the
Review and we were never satisfied that we discovered the reasons.
In particular, we were not satisfied that we found good reasons
for these differences. The two most important figures really are
the rate of referral to coroners; that is to say, the rate of
referral for specialist investigation. Whether you call them coroners
or whether you call them procurators fiscal, as they do on Scotland,
or whether you call them something else, as they do in Commonwealth
countries, or whether you call them medical examiners, as they
do in the USA, the rate of referral for specialist investigation
is very much higher in England and Wales than it is elsewhere
in the United Kingdom, or, so far as we could find out, elsewhere
in the world. It has risen further since we reported. I think
at the time we reported 38% of all deaths in England and Wales
were referred to coroners and I think the figure went up in the
year 2004 to 44%. That in absolute terms is a very high figure
and it is a very high rate of increase. It suggests to me that
there is basically a serious problem of confidence and self-confidence
amongst the doctors doing death certification. In relation to
the very high rate of autopsies, which has continued for a long
period and seems to have been stable at something like 23% of
all deaths in England and Wales—and I am not talking there
about deaths referred to the coroner, but all deaths. That is
to say, to put it more bluntly, one in every four person who dies
will be subjected to an unconsented compulsory autopsy under the
coroner's authority—and, looking around the room, I suppose
we have something like 12 or 15 people headed towards the autopsy
table in the morgue, if present trends were to continue. The only
good reason we could think of for that is, first of all, that
it is a kind of inheritance of the coroners' system, there is
a kind of custom and practice flow behind it, and, secondly, it
seemed to us that is showed that the coroners' system was not
adequately provided with medical skills to deal properly with
deaths that are probably natural and could, with a reasonable
degree of probability, be established as natural if a doctor took
the case records, for example, and maybe had a brief word with
family or maybe a brief word with the carers of the person concerned.
We think it is partly this lack of confidence that has led to
this pattern in which there is this routine resort to the compulsory
autopsy. Whatever the exact reasons, the fact of the matter is
that, so far as we could see and so far as the information we
could get hold of was concerned, England and Wales can make the
claim—perhaps the rather dubious claim—of being the
autopsy capital of the world.
Q67 Chairman: Is that partly because
there are more options open to the procurator fiscal in the Scottish
system? There are more options, first of all, in whether to go
to an inquest, because he can obtain medical reports without getting
to that stage, and he also has a procedure he can invoke where
the body is viewed with the case notes without carrying out an
autopsy, which they do with precisely the circumstance which you
have just described.
Tom Luce: I think that is a very
important point, sir, if I may say so. The autopsy rate up in
Scotland, speaking from memory, was something like half what it
is in England: around 12% or something of that kind. One of the
characteristics of the Scottish system, I think, is that the people
work rather more closely together than is often the case in the
very stretched-out jurisdictions. We visited Edinburgh and spent
two or three days in Edinburgh and we were certainly impressed
by the close relationship between the procurators fiscal and the
pathologists and other doctors with whom they work. The second
thing, as you very rightly say—and I think it is, with respect,
a very important point—they have this system which they
call "view and grant" as I recall, and that does mean
that the procurator fiscal and the pathologist can together look
at the case, with the pathologist looking at the body with the
medical case notes in front, and reach a conclusion as to the
most likely cause of death without necessarily going as far as
an autopsy. I think that is a very important provision. I think
part of the provision of extra medical skill to the coroners'
service would be of that kind. I might add that we found an almost
exactly similar system, although it did not go by such a declaratory
title, in the province of Ontario in Canada, where they have a
reformed system that seemed to us to be run by competent expert
people who knew their business. It came across to us, in relation
to their handling of this sort of situation and their scale of
autopsy—which I think was not much different from the Scottish
one, maybe a little bit lower—that, if people like that
and a service of that standing and quality could manage with a
much lower scale autopsy, then so, if we organised ours properly,
could ours.
Q68 Jeremy Wright: From what you
have already said, there is clearly a lot to comment on the systems
used elsewhere in the world, and yet your report does not go quite
so far as to say that we ought to start with a clean sheet of
paper and not have the coroners' system any more and start with
something else entirely. Is that because in your judgment there
is something intrinsically valuable about the coroners' system
that is worth retaining, and, if so, what is that?
Tom Luce: That is a very interesting
question. It is partly for the reason you have just given, which
is that there is something intrinsically valuable about it. It
is also that when we looked at these other systems we found that
some of them had good features but they went along with features
that were not necessarily so good. In particular, we found that
in all the Commonwealth coronial jurisdictions which had gone
through major reform, there was a very sharp, indeed a massive
reduction in the number of public inquests, so that in most of
these fully reformed jurisdictions—as, indeed, is the case
in Scotland—the public inquest, which they might or might
not call an inquest, and they do not in Scotland, would be, in
effect, confined to the cases which in England and Wales the subject
of ad hoc judicial inquiries. We felt, in effect, that there was
a danger of going too far down that road, partly because it would
deprive families who wanted some kind of public quasi judicial
process of an opportunity to get the circumstances of the death
of their family member dealt with in a public and transparent
manner, but also because we were not convinced that such a massive
reduction would be in the public interest. There is not necessarily
a very large difference between the cost of doing an investigation
in public and doing an investigation to the same degree of thoroughness
and involving the same issues only with the public and the press
not admitted. The other thing we thought was that the history
of the coroners' service, a history of public, transparent examination
of deaths of uncertain circumstances, is something of value to
be preserved. We did not think that it would be a good idea to
go for such a massive reduction, though we did think that it would
be sensible for the reformed coroners' service to use the public
inquest more sparingly, considerably more sparingly than it does
at the moment. The present figure is that something like one in
20 of every death in England and Wales is subject to a public
inquest and it is not clear to us that public judicial proceedings
or supposedly judicial proceedings on deaths of that scale are
necessary.
Q69 Jeremy Wright: Thank you. Could
I move on to the structure of the coroners' service and the structure
that you have recommended in your report and you have suggested
that there should be a national coroners' service, supported and
financed by the Department for Constitutional Affairs, and that
the number of coroners' districts should effectively be reduced.
First of all, can you tell us about the advantages that a national
structure such as that would have? Then I would like to ask you
about the disadvantages that there might be—particularly
with the reduction of the number of districts meaning that there
is, you could argue, less local connection between the corner
and the district he represents.
Tom Luce: On the question of a
national service, it seemed to us that creating a national service
would be the best and surest way of ensuring that the coroners'
service does something that it must do in future but has not done
in the past, which is operate to known, open, public standards,
both in its interactions with family and in terms of process,
things like what is the best method of investigation and in what
circumstances do you order an autopsy and in what circumstances
do you hold a public inquest and so on and so forth. We also thought
that going along with that was a very important need to improve
the training and professional education and development opportunities
of the staff, the coroners themselves and those who work with
them, including the pathologists, and, most of all, perhaps, the
vitally important 400 or 450 coroners' officers. We felt the chance
of getting good quality training and professional development
opportunities would be much higher with a national service. There
is a related matter which is that, in order to have consistent
standards and consistent practices, there needs to be somebody
or some people in charge. There is not anybody in charge at the
moment. The Home Office and now the Department of Constitutional
Affairs have done not a bad best with very inadequate powers and
resources to instil some kind of common values in the service,
but it has not been wholly successful, and it was never going
to be because they do not have the powers. If one looks at the
development of other parts of the judicial system, it has tended
to show that they have created jurisdictions that have people
at the top of them who set practice standards and that has had
a very good effect. I saw that when I was in the Department of
Health dealing with child protection and family law matters. The
creation of a family division, with a president of the family
division who not only deals with the most complex cases but can
set practice standards, is hugely influential. At the moment,
in the coroners' service the only way the more senior parts of
the judicial function can get involved in coroner cases is when
people go to judicial review and then to appeal and then to the
House of Lords—which they have had to do on a very significant
scale in recent years because there has been no other way of getting
change. We thought that was an important part of a national service
as well. As to the local point and the need for a local service,
we would completely have accepted that that was an important thing
to preserve in so far as one could preserve it, but it was not
obvious to us that you needed to have 120 or 130 separate coroners'
jurisdictions in order to have a reasonably local service. You
can have deputy or assistant coroners who can cover the ground
in particular localities if that is the most sensible way to organise
things. You need to make sure, in the way that you reorganise
the service, that particular issues like rurality and great distance
of travel is taken properly into account in the manning of the
service. When we came up with the very rough figure of 60-65 coroners'
districts—a figure that the Government has taken forward
itself, which the Shipman inquiry subsequently used as well—we
built in a substantial reserve, if I might put it like that, for,
for example, the south-western region, which is a very long and
thin region and has very long travel distances, the north-east
and indeed the north-west regions and other areas as well.
Q70 Chairman: Is there any reason
why you should not still have part-time coroners serving some
of the remote locations if they were part of the national system
which standards were being set for?
Tom Luce: I think not, sir. The
way we would envisage the structure would be that everywhere would
have somewhere or another in the regional area a full-time coroner
who was overall responsible for the service but that full-time
coroner would be supported by a number of part-time coroners,
and, in areas where there is a significant issue about topography
and distance and so forth, it might be sensible to have somewhat
more part-time coroners than you might have in a denser area where
there are not the same problems. No way were we advocating the
complete abandonment of part-time coroners. There are part-time
high court judges, part-time district judges and part-time circuit
judges and there should be part-time coroners as well. But in
charge of these services, both nationally and in whatever the
main devolved unit is, whether it is a regional area or unit or
whatever, there would be a full-time person, first of all to give
the service full-time attention and, secondly, to avoid conflicts
of interest, which one can perceive in a general way where there
are solicitors doing private practice and also acting as a coroner.
Q71 Jeremy Wright: Is there not a
problem or a potential problem presented by the fact that the
Government have gone part of the way with you? They have said,
"We accept that you should reduce the number of coroners
to around 60/65 but not that there should be a national and regional
structure. Is it possible to do the job that you are describing
without the support structure which the Government have said they
are not keen on?
Tom Luce: I think it is preferable
to have a national structure. I think it would be preferable if
the Government in any rethinking that it does goes back to the
proposals that it made itself in March of 2004 which were quite
clearly based on the creation of a new national service. I think
in particular that that would be helpful in terms of consistent
standards and resourcing and consistent training and professional
education. That said, I do not think that the structure that the
Government has now proposed, which is basically to leave the resourcing,
the administrative support of the coroners' service, with local
authorities, is necessarily fatal to the objectives that it wants
to achieve. I must say that I think it would be much better to
go ahead with those proposals, imperfect as they are, than sit
around and wait for another two or three decades until some government,
spurred on, no doubt, by some further massive catastrophe and
public outcry, eventually gets around to doing a more complete
job. There are one or two aspects of the structural proposals
which I think do need particularly careful thought. The one about
which I feel most strongly is the proposal for the presently divided
responsibility for coroners' officers, whereby some coroners'
officers are provided and employed by the local authority and
others are provided and employed by the police authority. I think
maintaining that, which the Government appears to be contemplating,
would be a very serious error for two reasons. First of all, I
think that it is hard enough to get consistent attitude towards
the development and employment of a group like coroners' officers
when they are in local Government employment, but it is at least
doubly hard when half of them at any given time are in the employment
of police authorities. The second thing, which I think is an even
more powerful point, is that particularly under the new service,
when the Government, rightly, in my opinion, envisages that there
will be a greater emphasis on delivering outcomes and delivering
certain quality of interaction with families, the coroner's job
is going to become somewhat more managerial than it is at the
moment. I do not want to over-emphasise that point, but there
will be a shift in that direction, and there should be. If in
some of the coroners' localities, the coroners' officers (in effect
the main support staff for the coroners' service) are employed
not by the local authority which is supporting the coroner but
by a completely different public authority altogether, with different
reporting standards and all that kind of thing, there is no way
that the coroner can take a responsibility for running his or
her service. I think that is a very serious matter and I hope
very much that the Government will rethink that aspect of it.
The other aspect of it which I am concerned about is the appointment
aspect. We recommended and the Shipman Inquiry recommended and
the Government initially accepted in the 2004 proposals that coroner
appointments should be made essentially, in effect, by the same
process as is responsible for making judicial appointments (that
is to say what would now be the Judicial Appointments Commission)
and I must say that I would think it better if that were adopted.
I do not actually see that adopting that approach would be inconsistent
with leaving local authorities with a role in the support of the
coroners' service.
Q72 Jeremy Wright: You mentioned
a little earlier on that it is important to have somebody in charge
and of course your report recommends the appointment of a Chief
Coroner, as well as an advisory Coronial Council, which is something
that the Government has taken on board. In your view, is it going
to be difficult to deliver the sorts of leadership and guidance
that permeates throughout the structure unless you have the sort
of national and regional structure in place that we have just
been talking about? Is that another aspect that concerns you?
Tom Luce: I think it would be
harder to deliver it if you do not have that. I think that is
the natural way of achieving consistency of standards and consistency
of approach and I think it is the best way. The Government proposals
that we have are not set out in very much detail, so it is difficult
to know exactly how they intend to proceed, but it would be possible
to make some advances by giving the Chief Coroner in effect powers
of practice direction over all other coroners, irrespective of
who was paying them and how they were supported and so on and
so forth. If those powers were correctly formulated and if they
were properly used that would have an effect on standards. It
would improve consistency. As I said, I do not think the local
government based structure that the Government now seems to be
contemplating is fatal to the objectives that they want to achieve
and I do not think that the whole modernisation project should
be abandoned simply because the Government does not want to have
a centrally resourced service. In fact, I think there is enough,
so far as the coroners' service is concerned, in the Government's
proposals to make the proposals worthwhile for legislation. But
I do think it would be better if there were a national service.
I should add that leaving the service in local government, at
a time when the number of local authorities with responsibilities
in this sort of area has over the last 10 to 15 years been very
significantly increased, and at the same time halving the number
of coroners' jurisdictions are two ships that are not going on
the same course.
Q73 Chairman: And increasing the
size of police authorities as well, to which originally you thought
you could hook the coroners' jurisdiction.
Tom Luce: Indeed.
Q74 Jeremy Wright: I have two final
points on the Chief Coroner, if I may. First of all, what judicial
rank do you think the Chief Coroner ought to have? Secondly, are
there any potential problems with the Chief Coroner being accountable
to central government in terms of quasi judicial independence?
Tom Luce: I would hesitate to
give a very definite view on the first of those questions, since
I do not regard myself as an expert on judicial grading. I think
we had in mind that something like a senior circuit court judge
might be approximately the right level.
Q75 Jeremy Wright: It would not need
to be a high court judge.
Tom Luce: It would not have to
be a high court judge. As I understand it, in Northern Ireland,
where they are restructuring the service, there is to be a high
court judge who is going to be responsible for the judicial practice
side of the coroner jurisdiction but I think there will be somebody
else who is responsible for what you might call its "management
and administration". As I read the Government's proposal
for England and Wales, it looks as though some of those functions
will be held by the same person. I am a little bit uncertain about
this: they have not been very explicit about it. It is question
of somewhere between circuit court and high court judge, I would
guess, but I am not an expert in such delicate matters.
Q76 Jeremy Wright: On the issue of
independence from central government?
Tom Luce: I think that is a point,
if I may say so, with respect, very fairly raised. My view of
the matter would be that the coroners' service is a rather complex
hybrid service. It is partly judicial, in the sense of conducting
inquests or other investigations of that kind which need judicial
impartiality and skills; it is partly what I would call a regulatory
responsibility. It is more like dealing with casework, which requires
some management and some experience and background which is not
judicial. It has this in common with the probate service, which
is a mixture of the two. I do not think there is any harm in the
Chief Coroner being responsible to central government for the
administration and management of the service and for its performance
of the standards of interaction with families that are expected
of it, for example, and I do not see why that would necessarily
interfere with the judicial independence of coroners themselves
or the Chief Coroner in reaching decisions on individual cases.
It is quite well known in public administration that people can
perform statutory functions in an independent manner and yet still
be accountable for their use of resources and for the administration
of their service.
Q77 Dr Whitehead: You have already
mentioned in your evidence to us this afternoon about the question
of the appointment of not just the Chief Coroner but coroners
in general through the Judicial Appointments Commission—with
which of course the DCA have not agreed, but they have said that
"procedures for appointments will be more robust and . .
. in line with national guidance." Do you think that a similar
sort of standard that you had envisaged, perhaps through the appointment
of coroners through the Judicial Appointments Commission, could
be achieved through a combination of local appointments and national
guidance?
Tom Luce: Possibly it could. I
should have thought the most certain way of achieving it was to
put the appointment responsibility into the hands of the Judicial
Appointments Commission. I suppose one could conceive of arrangements
under which the appointments made by local authorities under guidelines
that the Judicial Appointments Commission or some other equivalent
body has set out, and with perhaps some representation of the
Chief Coroner on the Appointments Committee. I recall from my
days in the Department of Health that there used to be regulations
on the appointment of hospital consultants which required that
certain interests should be represented on the Appointments Committee.
I do not see why, if one wants to go down the route of local authority
appointments, there should not be something of that kind in this
field. Of course, the more you consolidate the coroners' jurisdictions
into large jurisdictions, the greater will be the number of individual
local authorities that would claim a stake in each appointment.
If you are going to provide, under regulations or in some other
way, that the Chief Coroner or the Judicial Appointments Commission
should have one or more people on the Appointments Committee,
then you risk getting into larger numbers than would be convenient.
But those issues have to be faced and I think it is very important
that there should be a mechanism through which national appointment
standards can be clearly and beyond question brought to bear in
the appointment, whichever type of authority at the end of the
day is responsible for signing the appointment decision.
Q78 Dr Whitehead: You also made recommendations
about additional training for coroners. The Government have suggested
that substantial parts of that training are already being implemented,
are in train, and that training, which is not I think compulsory,
is provided by DCA currently. Do you think the Government is right,
that in many ways they are implementing what you have suggested?
Tom Luce: I can only speak for
what I observed when we were doing the Review which was completed
three years ago. I am therefore not a competent witness on anything
that might have happened since. It was certainly not the case
that three years ago there was adequate training of coroners.
First of all, there was no requirement that any coroner, either
at first appointment or subsequently, should attend any form of
training whatsoever. Secondly, the training that was available
did not seem to me really to be training. I would regard it as
a fairly modest example of continuing professional education.
It seemed to me quite inadequate really to the task that needed
to be addressed. I think there needs to be systematic training
in the approach to bereaved families, human rights issues, and
some diversity issues. There also needs to be training perhaps
in some managerial aspects of the emerging service, of which there
has been very little so far. I would not accept that as of three
years ago there was anything approaching adequate training for
coroners and there was no requirement for them to undergo any
kind of training or orientation at the time of the appointment.
The position of the coroners' officers is even worse. There was
very little training indeed. It was absolutely down to the local
authority or the police authority as to whether they provided
any or if they paid for their coroners' officers to go on any
and most of them, so far as I can make out, did not. I think most
of them, particularly, frankly, the police authorities, could
not be relied upon to do so for the future because it is so low
down their list of priorities.
Q79 Dr Whitehead: I take it is a
reasonable inference from what you are saying that you would favour
a mandatory scheme of training.
Tom Luce: Yes.
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