Examination of Witness (Questions 80-99)
TOM LUCE
CB
25 APRIL 2006
Q80 Dr Whitehead: To be implemented,
perhaps, rather than with just an instruction or a suggestion
to local authorities to get on with some training, on the basis
of a national framework.
Tom Luce: I would have thought
that most of it had to be provided through a central framework.
That is not impossible to do with the sort of structure the Government
has in mind, provided they are willing to finance it, because
I do not think that local authorities or police authorities are
going to pay significant amounts of money to send their coroners'
officers or their coroners off on training courses or that they
are going to pay anything towards the cost of their absences,
that is to say, providing cover and so forth. I think that it
has to be provided centrally. I think it would be quite a good
idea if the Judicial Studies Board were involved in some of it
but otherwise the Department for Constitutional Affairs could
either provide it or could put some other organisation in funds
to provide it if that seemed the best thing to do but I feel that
it will have to be centrally financed.
Q81 Dr Whitehead: There two areas
in relation to families where the DCA did accept your recommendations.
First, the recommendation for a Family Charter to govern the coroner's
interaction with bereaved families, and also the recommendation
that families should have additional rights of appeal. Could you
outline how you think a charter—and obviously that would
depend on what was in the charter—would improve the treatment
of bereaved families?
Tom Luce: The Home Office did
produce a model charter for coroners. I think it actually stemmed
from the Citizens' Charter Initiative that was taken by the then
Government in 1995-96. I think that probably did have some effect
on the climate of opinion in which coroners' services were being
provided. It covered issues like being sensitive, so far as was
reasonable in a particular situation, in relation to diversity
issues, and, in particular, the objections that some religious
groups or members of religious groups have to delay in burial
and to autopsies. It covered issues about providing information
to bereaved families about what was going to happen in the process
of a coronial investigation. It did suggest that coroners should
give bereaved families help towards getting bereavement counselling
if that is what they needed. The problem is, at the end of the
day, that it is a piece of paper, and if a particular coroner
does not want to do it or his or her local authority does not
want to pay for it then there is nothing that anybody can do about
it. The recommendation that we made was that the new coroner legislation
should give somebody, the Chief Coroner or the responsible Government
department, a statutory power to issue guidance which would have
some kind of statutory force. It would, in particular, mean that
if a particular coroner departed from the guidance they would
be under a legal obligation to show good cause for doing so. It
would not necessarily tie everything up, it would not be a kind
of bureaucratic centralisation. It would permit variation but
it would mean that the coroner could be under an obligation to
say why he or she had departed from some provision of the charter.
In a particular situation, there could be good reasons for doing
that. That is what we had in mind. The references to something
of that kind in the Government's proposals of February look to
me to be reasonably encouraging, although in that respect, as
in all others, the devil lies in the detail, and when the Bill
comes forward it will need to be carefully scrutinised. Also,
if and when the legislation gets into Parliament and goes through
Committees, I take the liberty of suggesting that there should
be close scrutiny of the way in which the Government intends that
the various order-making and regulation-making powers should be
used and what they will cover, and perhaps going back to what
I was always taught when I was a young civil servant was good
practice which was producing draft regulations and draft codes
of practice so that the Legislation Committee can see what the
Government has in mind to do.
Q82 Dr Whitehead: Perhaps that could
be something we could adopt on a wider basis than coroners' courts.
Thinking about the question of the treatment of bereaved families
and the Family Charter, and, indeed, the recommendation that has
been adopted that families should have additional rights of appeal,
do you think that tips the balance perhaps unwisely towards the
role of families in the process of coroners' courts? For example,
perhaps at the expense of other benefits of the system to public
health and safety, or perhaps in terms of the additional appeal
rights—appeal rights, but at the expense of tying up resources
and causing additional delays and generally encouraging circumstances
under which there might be, for example, unfounded vexatious complaints?
Tom Luce: There is always that
danger with any kind of appeal or review process. We were very
struck by the fact that as things stand the only way in which
a family that is dissatisfied with the coroner's administration
of a case can challenge that is by judicial review. That is in
practical circumstances more or less impossible to do on a short-term
decision, not to mention the expense and the very high threshold
that litigants have to get over in judicial review proceedings.
We thought, so far as we could see, that it was one of the very
few areas of public administration without any kind of review
process. We thought that was quite wrong and did need to be put
right. I very strongly believe that to be so. It is important,
in my opinion, not just in relation to a family's rights of appeal
or to obtain a review of the decision but much more widely in
terms of the role of bereaved families in death investigations.
It is important to bear in mind the concern there has been over
this in recent years, though undoubtedly justified and undoubtedly
correct, is a bit of a shift of emphasis from the traditional
way of looking at these things, where the possibility of misconduct
or neglect or even abuse or homicide within the family was always
something that had to be borne in mind. The last decade or so
has seen a lot of concern and rightly so about abuse or worse
by insiders to he healthcare systems, but we should not lose sight
of the fact that there is always a risk of abuse or neglect or
worse within families. I think that the coroner has a difficult
job, in that he or she has to keep these two things in the balance,
but I do not see that simply the creation of an avenue of local
challenge of administrative avenue of local challenge means that
the whole system is going to be too much skewed towards the rights
of bereaved families. The most important perspective—in
some ways the most important way of seeing this service—is
that it is a posthumous service to the deceased. In a way that
is not much different, and often not different at all, from it
being a service to the bereaved family, but it can be different
from a service to the bereaved family. I think that is an important
perspective on matters, and it does include things like the preventability
of deaths, the public health issues that are very important to
the coroners' service.
Q83 Dr Whitehead: Do you think there
should be a backstop, with the new Chief Coroner having the ability
to dismiss frivolous vexatious complaints?
Tom Luce: If a complaint is thought
to be frivolous or vexatious, it will not be successful.
Q84 Dr Whitehead: But it could be
pursued at considerable length.
Tom Luce: There is always that
danger. They can be pursued even if there is not a proper complaints'
avenue, and sometimes they are. You do not necessarily stop that
by declining to create a proper complaints' avenue—indeed,
I think in some ways you provide a better and clearer way of dealing
with this.
Q85 Dr Whitehead: In your report
you suggest what might be seen as an alternative avenue, which
is the question of consulting and keeping families informed as
he process is undertaken and you recommend that maybe some additional
training in that respect might be required for coroners and their
staff. Who would you envisage providing this training?
Tom Luce: I think there is a variety
of people who could have a helpful contribution to make. I should
say that all these things are easier said than done, and conducting
a fruitful and fair relationship with deeply distressed people
is something easier to write about than to do. But there are psychologists
who are very experienced and helpful in these matters and there
are support groups whose members have been through these experiences
on the receiving end and have helpful things to say. They had
helpful things to say to us and I know that they are active in
the training of coroners and the training of police and so forth.
There are one or two people behind me in this room who have been
very active and dedicated in that sort of way, so there are skills
and perspectives that can be drawn on.
Q86 Dr Whitehead: Should bereaved
families, do you think, have access to better legal representation
if they are perhaps to better participate in the way that we have
been discussing?
Tom Luce: Our recommendation was
that the legal aid rules governing the representation of families
at inquests should be reviewed, so that it should be easier for
bereaved families to get legal aid support when they met the income
test for legal aid support in cases where other participants in
the inquest had their legal costs publicly funded. For example,
if a police authority or a health authority is involved in an
inquest, its legal costs will be met by its budget, which is a
publicly tax-financed budget. We thought that it was unfair for
private individuals facing an inquest in those circumstances to
be without legal representation if they could not afford it. That
said, we did not think that if there was going to be an issue
about financial priorities for the reform of the service this
should necessarily be the top priority. In fact, we felt that
it should not.
Q87 Dr Whitehead: As far as the resources
in the system are concerned, you do recognise in the report that
there was a general lack of resources in the current system. Do
you think, taking that into account, the current DCA proposals
will relieve the pressure on resources or do you think they will
increase that pressure?
Tom Luce: There is no doubt in
our minds that in parts of the country the coroners' service has
been running on a shoestring and it has not had the same attention
to its resourcing that all other significant public or judicial
services have had in recent decades. We did try to do some costings
of our own recommendations. We found it very difficult because
all the money that is spent on the coroners' service is dissipated
in a whole lot of different budgets and nobody had at that time
ever brought them together. We did try to bring them together
and we thought that you could probably meet the extra costs of
what we were proposing—which went significantly further
than what the Government is now proposing—if you increased
the resourcing available to the service by something of the order
of 10% to 15% and if you made some efficiency savings in the service,
particularly perhaps by containing the number of autopsies. The
other thing we thought was necessary was to reflect in the public
financing of the new service the savings that would come to private
families from not having to pay cremation certification costs,
which amount in England and Wales to something like £30 million
a year. That is private expenditure. We thought, if you were going
to have a death certification system that dealt adequately with
all types of death, whether the body is to be buried or cremated,
you would have to compensate for that saving in the public financing
of the service. It is not clear what the Government intends to
do about death certification.
Q88 Chairman: We will come to that
in a moment.
Mr Luce: There is a gigantic hole
in that. We do not know enough about the detail of what they are
proposing on the reform of the Coroners Service to know exactly
how far the £4 million or £5 million of extra money
that they are proposing would go but my guess is that there would
obviously be some new central costs around the creation of a Chief
Coroner's Office. There would be some costs, a Chief Medical Adviser,
they say some extra money will be available for getting local
medical advice to coroners and maybe they envisage that some of
that money would go on central training. Without knowing the details,
it is impossible to know how adequate that is. In fairness, it
does not strike me in a ballpark sense as necessarily being completely
out of scale with what might be needed.
Q89 Dr Whitehead: Again, doing very
simple arithmetic, you would suggest that a figure of perhaps
up to £7 million to £12 million might be appropriate
and yet the Government is suggesting £5 million. Is that
a fairly wide ballpark?
Mr Luce: Yes, but theirs is structurally
a less ambitious reform.
Q90 Dr Whitehead: On the question
of the fact that the structural reform is not so ambitious and
they have essentially kept a service at local level, albeit with
some lack of clarity about how the reduction in numbers of coroners
might be achieved in terms of who pays for the coroners at the
moment, do you think the, what you might say, confusion at local
level in terms of who funds, whether it is police or local authorities,
who has what priority where, may undermine the integrity of any
additional funding and, indeed, the destination of additional
funding that might be proposed?
Mr Luce: It is very hard to know
through what channels they would be intending to spend this £4
million or £5 million, whether it would be some central finance
or some of it might simply be put into the general local government
finance settlement which would, in my opinion, mean that probably
none of it would reach the Coroners Service or maybe they are
thinking of some kind of earmarking, I do not know. I think there
is a serious risk that the implication of your question is correct,
that if it is not tied down very carefully it might never reach
the destinations it is intended for.
Q91 Dr Whitehead: A police authority,
for example, could receive some of this money and then decide
that it does not want to fund the Coroners Service in this particular
area. What would happen then?
Mr Luce: If it is given out in
the general block grants to local authorities and police authorities,
they might decide that it was not consistent with their priorities
to improve coroner officer training.
Q92 Dr Whitehead: It could be a good
way of raising additional money for other local services.
Mr Luce: Yes.
Q93 Chairman: Let us turn to death
certification because ministers in the Department for Constitutional
Affairs seem to have gone against the Home Office proposition
which was already on the table, against the Shipman Inquiry and
against your Review in not having reform of death certification
as part of the reform of coroners. Does this concern you or do
you accept their implicit view that the whole thing would be disproportionate,
that the two stage certification process is just an expensive
luxury?
Mr Luce: It concerns me very deeply
and I find it difficult to know how exactly to read such references
as there are to death certification in the February document.
There is a brief reference to the fact that the Government is
already taking initiatives to improve patient safety and so forth
which might lead one to suggest, or lead one to think that they
intend that some of the initiatives they have taken since 1997
in that sort of area—quality control of health service provision,
and of general practice and of patient safety generally—are
directly relevant to the very serious issues there are around
death certification. If that is what they think, they will no
doubt have an opportunity to explain in evidence why that is correct.
Q94 Chairman: They should say if
that is their intent.
Mr Luce: Yes. There are all sorts
of environments in which people can die and they can be certificated
as having died natural deaths when they might have been subject
to abuse or neglect, for example in nursing homes or residential
homes which have got very little to do with health service provision
anyway. Then there is this reference to, as they put it, "the
possibility of wide-ranging change is not excluded in the long-term"
which led me to think that was written by Sir Humphrey Appleby.
I find it extremely disturbing that there appears to be this hole
in the Government's thinking. Maybe there is some intention to
come forward with fuller and more satisfactory proposals, but
nothing of that kind can be gleaned from what they have said so
far. It is a very significant retreat from the proposals they
made in 2004 which though not absolutely consistent with either
the Shipman Inquiry or our own proposals seem to me to be sensible
proposals which should be supported. It is not clear whether they
intend to clarify these matters at the same time as they are proposing
Parliament should legislate on coroner reform. It seems to me
absolutely essential that at the very minimum Parliament should
be enabled to consider the whole area of death certification and
coroner reform and should not be asked simply to deal with coroner
reform with some vague possibility that the issue of death certification
might in due course be recovered from the long grass. I feel this
is the most serious issue to come up around their proposals. One
of the reasons why this is so is that it seems to me that an absolutely
essential part of the reform of the Coroners Service is to make
sure that the critical link in the chain, which is the process
of the cases being referred to the Coroners Service, is working
properly. If you continue to have death certification which is
conducted outside the Coroners Service, as they are planning to
do, there has to be some mechanism for ensuring that those cases
which ought to be referred to the coroner are being referred to
the coroner. If that is not done, I think that there will be a
very serious issue about the integrity of the whole process and
the degree to which the public can have confidence in it.
Q95 Chairman: In structural matters,
obviously you have been prepared to take the view that half a
loaf is better than no bread and that the reform is worth proceeding
with even though it lacks any structural element, which you think
is desirable. In this instance, do you think it might be pretty
dangerous to go ahead with the proposal without death certification
being involved because it could give a false sense of assurance?
As Dame Janet has said, she sees no basis on which the proposals,
as presently drafted, would prevent another Shipman case from
occurring and, therefore, it would be a pretty deplorable failure
to address what was seen as a serious problem.
Mr Luce: I think it would be a
deplorable failure. At the time of the publication of the Shipman
Inquiry Report, and indeed of our own report, the Government gave
commitments that the issues raised in these two reports would
be very seriously considered. So far as I can see, in 2004 it
looked as though they were fulfilling that commitment but it looks
to me as though they are not fulfilling it in terms of death certification.
I would rather not give a direct answer to the half a loaf is
better than any bread. I would respectfully like to offer the
view that Parliament would not tolerate the Government getting
very far with legislation that had this gigantic hole in the middle
of the road.
Q96 Chairman: On autopsies, we talked
a little about this matter earlier, there is one situation which
has been drawn to our attention which is when family members disagree
about whether an autopsy should take place. Do you have any view
about how that can be resolved by the coroner or by the courts?
Mr Luce: It can certainly happen.
There can be a whole set of issues on which families disagree
around the administration of a death investigation. They are very
difficult for the coroners. I must say that we formed a good impression
of the common sense and sensitivity with which such disputes were
often dealt with in the Coroners Service and, to be candid about
it, we did not think that we had anything to offer them which
they did not already possess.
Q97 Chairman: What about the information
that is gathered from medical examinations? Is there some way
in which this could be brought together, perhaps through a national
Chief Medical Adviser or in some other way? It is argued by some
that a lot of information is generated in these cases but it is
all in separate coroners' jurisdictions.
Mr Luce: That is absolutely correct.
I think that there is a very big public health and public safety
gain to be made by bringing together the product of a lot of these
death certifications by re-angling some aspects of the death investigation
towards preventability and, in particular, in terms of conduct
of inquests getting rid of the rather unhelpful framework of these
verdicts which have been inherited, accidental death, unlawful
killing and so on and so forth, which are not very helpful in
terms of preventability. I think it should be part of the function
of the Chief Coroner without producing gigantic bureaucratic analyses
to bring out the public safety and preventability aspects of their
work from time to time. I think that would be a great gain.
Q98 Dr Whitehead: In your report
you have recommended that inquests should only be public in form
where that is required in the public interest. I think the Government
have also accepted that some public inquests should be limited,
for example, in the case of suicide or child death. Other organisations
suggest that child deaths should always be in public. Do you think
the question of public interest should be an individual coroner's
discretion or should there perhaps be an attempt to provide a
statutory definition of what "public interest" might
consist of in terms of how those decisions might be reached?
Mr Luce: I would hesitate to suggest
that it should be done on the face of the primary statute because
my experience is if you try and do that it would not quite serve
the purpose after the first few months. I think there ought to
be some kind of practice direction from the Chief Coroner about
the use of public inquests. I am not suggesting that he or she
should necessarily do it in the first week after appointment but
it is something that I think should be done after there has been
a certain opportunity to look at emerging patterns in the new
service. We certainly thought that it was unnecessary to publicly
inquest what some people call domestic suicides. It is relevant
that the Government made proposals for the reform of the registration
service which would increase the privacy attending information
on the cause of death, which at the moment if anybody dies it
is possible to pay a fee to the registration service, any member
of the public can pay a fee to the registration service, and find
out whether the death certificate mentions AIDS or alcoholism
or whatever. The Government made what seemed to me to be very
good proposals for changing that in the registration system. I
am not sure whether its proposals now stand. I think in some ways
the same principle should apply in the inquest. If there are good
reasons for keeping information of that kind private, I see no
reason why it should be made public unless there is an overriding
public reason to find out the cause and circumstances of death.
For example, quite a lot of suicides have, in the background,
issues of mental ill health and I can see no particular reason
why they should be necessarily ventilated in public unless there
is some particular reason for doing so. As I said in answer to
a question earlier on, we thought that the jurisdictions that
reduce the public inquest so there are very few public inquests
every year—a dozen or 15, for example, in some of the Australian
states and Canadian provinces that we looked at—had gone
too far. We think that there should always be flexibility in the
system for the coroner to respond to a family's conviction that
there was something funny which needed to be publicly examined.
Inquests should not be ruled out simply because there is not some
kind of systemic failure of prevention and if there are significant
issues that need public judicial process then they should have
them. On the other hand, there seems no reason routinely to inquest
deaths from occupational disease, for example, asbestosis deaths,
if there is no dispute over the diagnosis. What is the point of
making a family wait nine months only to have a pathologist come
along and say "There was a diagnosis for this, I have done
an autopsy and the asbestos related cancer was present".
We were also doubtful as to whether the automatic inquesting of
all traffic related deaths was necessary. I know this is something
that does divide opinion. Quite a lot of people, although not
all people, concerned with the position of families bereaved by
traffic related deaths felt that if you have an inquest it does
bring home to the public the risk of dangerous driving and it
might increase the chances of pinning something on the perpetrator.
We never saw much evidence that was true, unfortunately. I think
that is an area which needs to be carefully looked at. We found
it impossible to say how much the inquest rate would be reduced
but we did feel that it was a very important part of the reform
to reposition the public inquest away from deaths where there
was no significant likelihood of finding anything of extra value
from the public process towards those deaths which, at the moment,
it is not necessarily very good at dealing with because the inquest
has narrow bounds and because it is not adequately resourced.
Hence you get in certain types of situations, like after multiple
deaths in a railway fatality, automatic demands for public inquiries
because it is thought that the boundaries of the inquest are not
going to be adequate to go into the causation. We thought it was
important to reposition the inquest further in the direction of
looking at contentious, complex and multiple fatalities and move
somewhat away from looking at individual deaths where the circumstances
were pretty clearly known, but not to the extent of depriving
a bereaved family of an opportunity for a proper process when
there is some grounded anxiety about the circumstances of death.
Q99 Dr Whitehead: I want to touch
on the question of inquests in multiple deaths in a moment. If
the consideration of public interest is left to an individual
coroner's discretion as we have discussed and, as you have recommended
in your report, that management decisions themselves might be
subject to appeal, would that perhaps not risk some lengthy delays
as a result of appeals on the fact that there is not to be a public
inquest and perhaps media appeals being pursued at great length
resulting from those management decisions?
Mr Luce: There can be such appeals
now and there have been such appeals. Maybe if you had tighter
processes and a set of criteria there might initially be some
challenges to those, but I would guess that would die down fairly
quickly and that overall there would be a benefit from the improved
clarity.
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