Inquisitorial inquests and adversarial assistance from NHS legal representatives

Long blog title, apologies, lots to say. I am going to try and keep this blog post brief*, because it’s a Bank Holiday Monday and I’m not sure there will be anyone around to read it, and I have limited emotional energy left in the bank for the detail of this. Before I go any further though I wanted to thank my amazing crowdfunders (those who make a monthly contribution and those who make one off donations, including repeatedly from some readers here). All of my Open Justice reporting is thanks to you, and on the occasions when faced with the futility of it all, or doubt the value, the support (financial and otherwise) is a useful reminder of its value. Thank you.

Turning back to the topic in hand, I am wondering whether this might turn into a series of blog posts on this. There are soooooo many examples from the inquests and pre-inquest review hearings I’ve attended, I feel like I could churn one out regularly for years to come. For now I’m just going to focus on one example, the court appointed expert witness at Laura Booth’s inquest and the “assistance” provided to the coroner by the NHS legal representatives involved.

Few background points before we go on.

  1. Inquests are inquisitorial. This is according to the Ministry of Justice who have clearly got their head so far in the clouds, and are so out of touch with reality, that they believe it (or don’t believe it but do still peddle it). It’s nonsense.
  2. State bodies, the NHS in this case, and their representatives have access to unlimited funds and resources when faced with an inquest into someone’s death (even when, as in Laura’s case, the inquest is only happening because of media intervention)
  3. Bereaved families, in the midst of their grief and facing unanswered questions about the ‘care’ their loved one received, are faced with intense, complex and deeply personal raking over of their personal finances in assessment in an attempt to secure funding for legal representation.
  4. Very few families manage to secure Legal Aid funding for representation. Most are left to fundraise, others try and represent themselves, and I know of others who were left with no energy or resources to pursue justice at all.

For more on this issue check out the Legal Aid for Inquests campaign that Inquest have been running for a couple of years, including this eye watering time line that clearly details every independent review/public inquiry that considered issues faced by bereaved families in the past 20 years. They all recommended the inequality of arms between bereaved families and the state at inquests should be addressed. The 2019 MOJ final report Review of legal aid for inquests disregarded the overwhelming evidence and ignored the voices of bereaved families.

We have looked at the impact of publicly funded family representatives on the conduct of inquest hearings, and the ability of the family to participate and understand the process. In the main, responses from bereaved families and representative bodies suggested that public funding for families in these cases is required to ensure that there is an equality of arms. However, a number of stakeholders pointed out that it should not be assumed that in cases where the state has legal representation, representation for the family is necessarily required nor that it enhances the results of the coroner’s investigation. They suggested that the addition of further lawyers might actually hinder the process, by making the process more adversarial and legally complex.

The review, alongside its wide reaching dismissal of the concerns and experiences of bereaved families, claimed it would “be considering options for improving the conduct of lawyers”. Perhaps they’d like to consider the example I’ll discuss today.

Finally, before getting into this post, if you don’t know who Laura Booth was or what happened to her, please read the statement that Laura’s family issued at the conclusion of her inquest. Last week Assistant Coroner Abigail Combes found that Laura’s death in 2016 was contributed to by neglect, at Sheffield Teaching Hospitals NHSFT.

Ms Combes reached her view based on the evidence she had heard in court, from Laura’s parents, multiple members of the Trust’s staff, Prof Sam Ahmedzai (one of Laura’s retired consultants and family friend) and a court appointed expert, Dr Patel. It is Dr Patel’s contribution to the inquest that this blog post is concerned with.

How did Dr Patel come to be involved? For that we need to go back to the sixth pre-inquest review hearing in Dec 2020, one of eight that took place before Laura’s final inquest hearing. At this stage the hospital’s legal representative in court was Ms Diane Hallatt of DAC Beachcroft.

Ms Hallatt suggested to the Coroner that she instruct Dr Patel to advise the court, the conversation went like this:

There are so many gems in that discussion. To my simple brain, it would appear more useful for someone completely new to have been instructed, I’d concerns about the independence of someone who had already been involved in reviewing Laura’s care being involved again, but what do I know.

Note also Ms Hallatt playing the complexity card and a very interesting turn of phrase ‘for an expert it is so easy to get the wrong take on something because one is not intimately involved with it‘. What could Ms Hallatt possibly consider ‘the wrong take’ on something to be? One that doesn’t support her client perhaps?

The Coroner invited parties to make submissions and Ms Hallatt chose to go back again, to try and hammer home her point, along with another waving of the complexity wand. The Coroner did make clear that what was easy, was not necessarily the right option.

Next we turn to PIR7, in January 2021. By this stage the hospital have appointed Mr Paul Spencer, a barrister at Serjeants’ Inn to assist them. How is Paul described on his chambers’ website:

Paul has acted in numerous Coroners inquiries and Art 2 investigations. He frequently acts for large organisations and NHS Trusts who have significant numbers of staff who have been summonsed to give evidence in court. He has an insight into the stress and strain that clients and their staff face in the run-up to court hearings and also advises those required to give preventing future death reports (Regulation 28) to the Coroner.

A focus on the stress and strain to his clients and their staff, and seemingly little or no regard for the stress and strains to bereaved families. Prof Sara Ryan has written more about this in a post reflecting on Laura’s inquest here Laura Booth, love, mashed potato and peas and my post yesterday touched on it as well Multifactorial complex suffering and the panoply of NHS pathologies: a masterclass in othering.

Back to the seventh pre-inquest review hearing and the discussion returned to the matter of instructing an independent expert.

At PIR7 the Trust are still heavily advocating for just one expert, Dr Patel, to be instructed by the court. They suggest this expert is the correct one because NHS staff are under so much pressure it would only be right to instruct someone who already knows about Laura’s ‘complexity’. Earlier in the same PIR the Trust argued that Laura’s inquest didn’t warrant Article 2 status and therefore should have a narrower scope.

Mr Mark Lomas, for Laura’s family, suggested a different independent expert to comment on nutrition, but Mr Spencer for the Trust argued against that. Mr Lomas also suggested that the court might be assisted by a second expert witness with a background as an intensivist, but Mr Spencer for the Trust argued against that.

Again the Coroner was at pains to point out to Laura’s parents, Patricia and Ken, that her decisions would be based on what she needed and not on convenience. One has to question why she is required to make these reassurances in the first place, if it wasn’t for adversarial assistance of the Trust’s legal representatives.

Onto the final PIR, in March 2021. By this stage the Coroner has decided to instruct Dr Patel, as the Trust originally suggested. Dr Patel had been involved in the Independent Review into Laura’s care commissioned by the NHS once the inquest was opened. The discussion about experts at this PIR went like this:

After the PIR concluded I was informed that the Coroner decided she was satisfied that the witnesses listed to give evidence could address the issue of the complexity of Laura’s presentation and she therefore decided not to instruct a further expert.

To summarise, heading into the inquest the Trust’s legal representatives had *everything* they requested with regards to expert witnesses: only one and the very same one who had already been involved with a review of Laura’s care that they liked the conclusions of. The Coroner (and Laura’s family) even agreed to the Trust’s suggestion of timetabling for the expert so that he could be in court and hear the evidence of one of their witnesses, Prof Lobo.

You can read all the tweets from Dr Patel’s evidence here:

You can read the questions from Mr Lomas on behalf of Laura’s family here and questions from Mr Spencer on behalf of the NHS here. The Coroner spent 51 minutes examining evidence with Dr Patel, Mr Lomas 8 minutes and Mr Spencer 44 minutes.

Dr Patel confirmed when Mr Lomas questioned him that he felt Laura received inadequate nutrition in hospital, that he could not see any day when she had more than half of her required intake, he confirmed this was in his view a serious failure, and that it was more than a negligible or trivial contribution [thats what the tweet says but I’m sure Mr Lomas would have also mentioned minimal, no legal rep would ever not say all three but clearly I couldn’t type quick enough].

Let’s have a look at Mr Spencer’s advocacy style, in this inquisitorial, non-adversarial inquest. I’ll just cherry pick a few tweets to illustrate how the NHS responded to their preferred expert giving evidence to assist the court.

Here Mr Spencer appears to be framing the independent review as a long, luxurious consideration of evidence, and telling the court expert, Dr Patel, what he should think. Note this juxtaposing of a ‘final conclusion with which you’re happy with and agree with’ [in relation to an independent investigation that the Trust liked the findings of, and one can only conclude on which basis they suggested the Coroner instruct this expert] and ‘your report’ [being the report that Dr Patel has written for the court, that the Coroner has just discussed with him, that doesn’t exonerate the Trust of all responsibility in regards to Laura’s nutrition].

Dr Patel calmly and sensibly states that he contributed to the independent investigation but that he was not the report author.

Next, Mr Spencer moves to suggesting Dr Patel had done a rushed job on his report for this Court.

Note how he’s telling the court expert his version of events, and asking him whether he agrees, instead of choosing to ask open questions. But let’s not forget inquests are inquisitorial, not adversarial. Dr Patel stands his ground.

So Mr Spencer tries a new attack on his credibility, the court appointed expert, that they recommended the Coroner instruct:

At this stage I couldn’t capture the extent of Dr Patel’s answers but I can say he appeared very open, and with nothing to hide. He detailed what he reviewed, and how he came to his conclusions in his report.

Mr Spencer returned to discussion of the independent report. You can click on the thread above to read it all, an example (with a painful typo at the end):

As this discussion continued Mr Spencer, a man who’s chambers proudly boast is:

an excellent advocate, with a beautiful courtroom manner – he is totally unflappable

appears to be in a bit of a flap:

Let’s just pause here a moment to look at this. Mr Spencer is talking over Dr Patel as he tries to answer an earlier question, wishing to move him onto something else [I should note that its not my practice to comment when someone talks over someone, especially in remote hearings because it can easily happen by accident, this was not the first or last time it happened and did not appear to be accidental which is why I noted it].

Likewise another of Mr Spencer’s approaches is to ask witnesses to read things aloud to “assist the Coroner” when it suits his narrative, and to “read that page to yourself” when it doesn’t. It’s so blatant.

Here he adds a nod to the Coroner’s expertise, while simultaneously attempting to discredit Dr Patel’s: The Coroner is used to seeing thousands of pages of clinical records, you’d have seen good, indifferent and poor.

A little later on Mr Spencer uses a particularly horrid turn of phrase that makes my skin itch, another example of othering and dehumanising Laura. He states ‘Laura who was well known to the services at the hospital’.

Well known to services always makes me think of the phrase ‘well known to the Police’. What does it even add. Why not say ‘hospital staff knew Laura well’ [we won’t get into a discussion about whether or not they did, but the phraseology is grim]. He then proceeds to tell Dr Patel what he thinks again. Dr Patel calmly reminds Mr Spencer of what his evidence was to the Coroner

The above exchange caused Laura’s parents great distress. So much so that their barrister addressed it with the Coroner the next day the court was sitting. This bringing the focus to Laura’s mental age by Mr Spencer appears to be just another attempt at othering, a deeply offensive one. Rather bizarrely Mr Spencer appears to bring Laura’s mental age into the equation, and then when Dr Patel suggests it is not really relevant to its usage, he appears to accuse Dr Patel of somehow othering Laura. Just wholly bizarre and utterly irrelevant.

For completeness when raised the next week the conversation went like this:

Even when the distress he’d caused was brought to his attention Mr Spencer did not offer any apology, or even any acknowledgement.

To round things off, Mr Spencer returns to asking Dr Patel questions about the independent review.

Mr Spencer ends by returning to his sepsis narrative, you can read more on that in an earlier post here.

I’ll end this post with what the Coroner had to say about Dr Patel and his evidence:

I have been invited by those representing the Trust to take a view of the expert evidence given by Dr Patel that he deviated from his statement, deviated from the evidence given in the IRR and that he seemed unprepared in his evidence. The Trust also refer to him having gained knowledge from listening to the evidence from Professor Lobo. It is of note that his presence to listen to Professor Lobo was at the request of the Coroner following a request from the Trust.

I have carefully reviewed the IRR and it is clear that the issue of nutrition was one of the most difficult of the IRR to deal with with disputes between the teams responsible for nutrition. There were professional to professional discussions and these often did not result in agreement but rather professional disagreement, for example there were areas between Dr Wong and Mr Leahy where agreement could not be reached.

I am aware that the Trust suggest that Dr Patel has deviated from what he said in the IRR and can provide no evidence to support that these were his views during the IRR communicated to the report author and that his deviation should therefore be viewed with caution. Dr Patel was not the author of the final IRR report and had no overall editorial rights as to what was ultimately published. I can find no reason why Dr Patel would be mistaken that he had made his views known in the IRR and that they were the same as the views in his evidence and I can certainly find no evidence that he is being untruthful in that regard. The only reasonable explanation is that he gave his views and where the report author refers to nutrition being the most contentious area of the report this reflects the different views and opinions articulated.

I accept that Dr Patel gave more detailed oral evidence however he does identify in his report what he regards as clinical failings and confirms his view that this contributed to Laura’s death in his report. In his oral evidence he went beyond this indicating that it contributed, when asked by Mr Lomas, more than minimally, more than trivially and more than negligibly.

It is not unusual for witnesses to give more detailed or subtly different evidence orally to what is in their statement, indeed it is one of the reasons that we call them to give evidence. At least two of the Trust witnesses provided more detailed or different evidence orally to that which was provided in writing including Dr Christina Wong who authored the report with Dr Galimberti relating to the section on nutrition indicating that she now did not agree with what she had written about an MDT meeting being desirable in Laura’s case. Dr Tattersall also gave evidence in the proceedings which was not reflected word for word in her statement that where she had written ‘Laura’s nutrition is my main concern’ this was reflecting the parents concerns rather than her own and also that she made the decisions that she made on the 19 October 2016 was not because of clinical urgency but because she felt that clinical leadership was lacking and may benefit decision making. This is not reflected in her statement or in her clinical records for Laura.

I am entirely comfortable with witnesses giving evidence in proceedings which does not accord exactly with what they have said and it is a matter for me to attach appropriate weight to that evidence. I have undertaken this exercise with great care.

The Coroner concluded that Laura’s malnutrition contributed to her death and that it contributed in a way which was more than minimal, negligible or trivial, and she relied on Dr Patel’s evidence, alongside that of Dr Tattersall (one of the Trust’s current members of staff and witnesses) and Dr Egner (one of Laura’s retired consultants who the Trust were keen had his evidence accepted under Rule 23 and therefore not be invited to give oral evidence).

I’ll finish this post with a quote from the MOJ report referenced at the beginning, used to justify why bereaved families don’t require automatically funded legal representation for inquests:

the addition of further lawyers might actually hinder the process, by making the process more adversarial and legally complex.

I mean lawyers for the State never hinder the process, or make it more adversarial and legally complex than necessary do they?

*Clearly I failed in keeping this short but I wanted the tweets embedded to save people having to jump back to Twitter

2 comments on “Inquisitorial inquests and adversarial assistance from NHS legal representatives”

Anon says:

Jesus wept. Thank you for being there, doing this and sharing what has to be one of the most distressing aspects of the NHS. So much aggression. From a health service. For it is they who instruct. To think they could have held their hands up, been transparent and just said sorry. And made proceedings gentler.

When the Duty of Candour statute was passed all I could think was : how bad has this got that healthcare staff have to be told to be open , transparent and honest. And clearly the answer is very bad.
It’s so adversarial and just feels abusive tbh. Sysyem needs massive overhaul.

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