There have been some seismic changes in Coronial law in the last few years. Below is an overview of some of the major developments.
First, the case of Maughan in 2018 reduced the standard of proof for a Coroner to determine a conclusion of suicide, from the criminal standard to the civil standard (from 'beyond reasonable doubt', to 'the balance of probabilities'). However, the High Court (and many others) believed that this lower standard would not apply to the most serious inquest conclusions which refer to a criminal act i.e. murder, infanticide or manslaughter (including unlawful act, corporate or gross negligence manslaughter).
In late 2020, the Supreme Court confirmed that now the civil standard of proof applies to all conclusions in an inquest, which includes unlawful killing.
An unlawful killing conclusion at an inquest is rare. As the new Chief Coroner HHJ Thomas Teague QC indicates in his first Law Sheet (number 6).
In 2019, when the criminal standard of proof applied, there were fewer than 166 conclusions of unlawful killing made by coroners. Many of those inquest conclusions followed criminal proceedings, where the defendant was found guilty at trial in the Crown Court e.g. homicide. Now that the standard of proof has been reduced, it is likely that the number of unlawful killing conclusions will increase in 2021.
In relation to healthcare, gross negligence manslaughter is sometimes informally referred to as 'medical manslaughter'. Although the standard of proof has changed in inquests, the ingredients of the test remain the same. It is necessary to prove that it is likely that;
Unlawful killing in an inquest is not an equal alternative to a finding that a 'failing contributed to the death' of a patient, or even that 'neglect contributed'. There are some important differences in relation to unlawful killing:
Medical organisations have recently raised a call for protection for medical professionals from possible criminal charges of unlawful killing, in relation to care provided during the pandemic. There is concern that the police may investigate a death when it was not possible to provide the usual standard of care (perhaps when care was rationed, or the doctor had been re-deployed outside of their usual medical specialty). However, a criminal prosecution requires evidence to prove the elements of the offence to the criminal standard (beyond reasonable doubt). Given the pressures across all emergency services, including the police, it is unlikely that investigations of this nature will happen soon.
As a result, it is likely that the issue will first be considered by Coroners and possibly the GMC. However, the extraordinary context within which mistakes occur, must be considered, for example, when deciding whether the misconduct was 'so far below the required standard' as to amount to a crime. The GMC has already issued guidance which refers to the pandemic context when considering complaints. As a result, patient numbers and acuity, staff shortages and resource limitations can be considered in evidence, together with national and local policies.
Healthcare providers are concerned about the risks of criminal prosecutions or unlawful killing conclusions in inquests, linked to deaths occurring during the pandemic. However, these decisions must consider the extraordinary context in which healthcare was actually being provided. Quickly changing guidance and accepted practice during the pandemic (or during particular spikes in demand), are likely to alter the standard of care expected, and should be a topic for expert evidence.
If you are involved with a death which relates to a mistake or misconduct by an individual, or where unlawful killing is being alleged, seek legal advice at a very early stage (immediately conserving relevant contextual data will be important).
If you are concerned about a corporate manslaughter investigation, please see our previous article here.
On 9 February 2021, our Global Head of Healthcare, Claire Petts, will be discussing the new civil standard of proof for unlawful killing conclusions at inquests. If you would like to register for this webinar, please email firstname.lastname@example.org
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