‘The Chilling Effect of Disclosure’ at Kent County Council

It’s been a long day today, I was up before dawn to travel to Kent for the third pre-inquest review hearing into the death of Samuel Alban-Stanley. Sammy was just 13 when he died last April, a few weeks into the first lockdown. You can read more about Sammy and what happened in this post I shared on his birthday last year.

Sammy was the oldest child in his family and very, very loved. He liked lime and soda, the more limey the better. He loved inflatables, bouncy castles and hot air balloons from a young age. He was a talented craftsmen, and rarely happier than when he was crafting something, and he was especially talented at wood work. Sammy made bird houses and boxes and he also enjoyed sewing too. Sammy and his sisters would enjoy trips to Dreamland, a vintage funfair in Ramsgate, Sammy had no fear and his favourite ride was one that would go in circles, stop at the top and drop down all of a sudden. His favourite evening meal was sausage and mash, followed by yoghurt and banana. Sammy was diagnosed with Prader-Willi Syndrome at about 5 weeks old and later in life it became clear he was autistic.

There is a long back story to what happened to Sammy in the post from his birthday. I’ll just quote a short section here, for context to today’s PIR discussions:

Then coronavirus happened and the first lockdown hit. Sammy was deemed physically vulnerable due to his Prader-Willi so he couldn’t go into school. Patricia checked with two doctors, both of whom felt he should stay home. The school agreed as they had children from NHS and keyworkers in too.

From 26 March Sammy was back at home full time, a rough estimate was that he’d be awake for about 90 hours a week and no additional cover or support was provided. Their family was left with 10 hours a week support.

Despite Patricia’s cry for help, all that happened was A Child in Need meeting almost a month later in the middle of April.

Less than a week later Patricia’s worse fear had been realised when the Police came to the house to say Sammy had been found after a fall from the cliffs. Sammy had suffered a traumatic brain injury and died four days later.

Today was the third, and hopefully final, pre-inquest review hearing into Sammy’s death. His inquest is listed to start on May 24th. The Coroner hearing the matter is Miss Catherine Wood, Assistant Coroner for Kent. Sammy’s family are represented by Angela Patrick of Doughty Street instructed by Anna Moore of Leigh Day. Kent County Council are represented by Jonathan Landau of 5 Essex Court. North East London NHS Foundation Trust are represented by Matthew Turner of Crown Office.

In this post i’m just going to focus in on what appeared to be one of the most contentious matters discussed today, in relation to disclosure. As ever I’m working in the dark having not seen the submissions shared between parties and the Coroner but the issue as I understood it was that Mr Landau for Kent County Council had made submissions that a report referred to as ‘an audit report’ should not be disclosed to all interested persons.

The Coroner has the report and had read it, and everyone had read Mr Landau’s written submissions (although the family and the Trust had not seen the report). Ms Patrick made submissions that the family’s position had not changed since the previous PIR (having earlier had to flag that disclosure was coming late and had not been received in enough time to get full and final instructions from her client). She also suggested that the focus of her learned friend Mr Landau was ‘misplaced’ and that it was ‘for you [the Coroner] to look at the document and decide whether it is relevant…. plainly it appears to be so because it is referred to in Ms Maguire’s statement, disclosed to all IPs’.

Ms Patrick expanded further suggesting the audit report in question is:

‘an exercise in self-reflection… the facts within the body of it may assist those participating in this inquest… I imagine it is an incredibly valuable document in understanding how the local authority appreciates that it’s policies, practice and procedures were implemented in respect of Sammy’s care… identifying themes, challenges and going forward what is relevant to matters of preventing future death.

Kent County Council asserted in Mr Landau’s submissions that the only valuable information in the audit is regulation 28 PFD material. The family can’t assess that because they haven’t seen the document, coroners examine internal documents reflecting on tragedies and cases in inquests all the time, and actually the material is often helpful for a number of reasons: to examine facts as understood by key players, it may be there are facts not reflected in other documents, I can not comment because we haven’t seen it… there are other issues around policy and practice and how its understood to be applied by those employed which may be useful… also prevention of future deaths and lessons for the future’

At this point the Coroner indicated that Ms Patrick ‘probably wouldn’t need to go much further on this’, she had already seen it and already had her own provisional view. She also commented on the fact that Mr Turner was nodding along to Ms Patrick’s submissions.

Ms Patrick finished by discussing the legal standards at play. She highlighted that it was for the Coroner to determine whether the document (the internal Kent County Council audit report) was relevant to proceedings, and if Mr Landau wished to object he’d have to raise an objection within the scope of Rule 15. Ms Patrick highlighted that he had not done so, instead raising a policy objection, “not relying on a legal or statutory barrier to disclosure”. Ms Patrick stressed that the family’s request was an entirely reasonable one, especially given the NELFT Root Cause Analysis document was already admitted into evidence. She finished:

‘If you were minded to accede to an objection, the first stage would be to consider which parts need to be withheld and we’d encourage the coroner to recognise any question of internal embarrassment, if that were an issue, shouldn’t be relevant in your consideration’.

The Coroner thanks Ms Patrick and asked Mr Turner whether he’d anything to add, commenting on his nodding a lot to what Ms Patrick was saying. He responded:

‘Evidently I was nodding along because I agree with what my learned friend was saying. The Trust position hasn’t changed, it appears to be relevant, its referred to in a witness statement, we have disclosed our own RCA analysis because it is so obviously relevant. I’ve one additional concern about prejudice to one interested person disclosing its reflective document and another not doing so, I would like that kept in mind when you’re considering’.

The Coroner cited case law on where the practice of disclosing internal trust documentation started. She summarised Mr Landau’s submissions as ‘in essence that you shouldn’t disclose on the basis there isn’t reason to, and there is no authority for internal investigations to be provided’. He was then invited to make a response having heard the submissions from the other parties.

This is what Mr Landau had to say in relation to the audit report disclosure matter:

‘My learned friend is right, the starting point is always going to be the rules. Rule 15 provides discretion not to disclose where the consent of the author or copyright owner can not be reasonably obtained. That’s the position here. Kent County Council have not given authority for the document to be disclosed, they’ve not given consent… in relation to why they haven’t given their consent, that’s set out briefly in my submissions.

The primary concern is something that wasn’t intended to be used for these purposes, will now be born in mind when other people are involved in similar tasks in the future… that will have a chilling effect.

To the extent to which the audit is relevant, it is relevant in respect of Regulation 28 duty. I think that’s generally the case in my submissions. RCAs, SUIs, similar reports, non-statutory investigations are relevant, in so far as they make recommendations for improvement.

In the present case those recommendations and themes have been pulled out, in the frank statement from Rosemary Hem-McRae, on what the issues were in respect of Kent County Council and how they are resolved.

In respect of Kent County Council it is clear they are not in any way trying to duck issues, to the contrary they have included items in their statement that they did not need to, such as results of recent CQC inspection.

It is not that Kent County Council are trying to prevent any issues being aired, it is that they want to keep the integrity of this investigation to ensure they remain effective.

I note my learned friend says they’ve disclosed their RCA so we should disclose ours. The RCA disclosure in NELFT is a statutory duty, under the Duty of Candour, it is expected to be produced. When you go down to it, its up to NELFT to raise concerns about the chilling effect of disclosure but they didn’t do so, maybe they didn’t have those concerns.

You have seen the document ma’am, you may well consider having read it that any value its going to have to your investigation is in the themes established, and answers to those will be given by witnesses, particularly Rosemary Hem-McRae.

On that basis the harm and risk of disclosure, in so far as it may have a chilling effect on future investigations, outweighs the value that document is going to bring.

Ms Patrick, in response raised the issue of Coroner’s Rule 15 again and requested to make written submissions if Mr Landau was now going to rely on an assertion about copyright of the document.

Just so you can all see this is Coroner’s Rule 15 on restrictions on disclosure.

15.  A coroner may refuse to provide a document or a copy of a document requested under rule 13 where —

(a)there is a statutory or legal prohibition on disclosure;

(b)the consent of any author or copyright owner cannot reasonably be obtained;

(c)the request is unreasonable;

(d)the document relates to contemplated or commenced criminal proceedings; or

(e)the coroner considers the document irrelevant to the investigation.

Ms Patrick expanded with a number of other points including pointing out the poor logic at play, given it was:

‘on reflection of the need to participate in these processes that the audit was conducted… one of the issues relevant to this inquest is the involvement of the Children with Disability Service, I think its called the Disabled Children and Young Persons’s Service and referrals for Sammy were refused to that service on the grounds of his eligibility.

Changes to eligibility that appear to be in train prior to Sammy’s death but only implemented after Sammy’s death are covered in the statement of Rosemary Hem-McRae, but that doesn’t cover what was investigated in the audit.

Of course the efficacy of processes must be preserved… as must the efficacy of the inquest, and this being an Article 2 inquest, in which the family must be supported to play a full, proper and informed role…. the efficacy of the audit process can not trump the efficacy of the inquest’.

It is utterly galling (while in no way susprising) to me that a local authority, Kent County Council, who had a statutory duty to Sammy as a child in need, as a result of his disabilities, would seem to want to protect themselves from any in-depth scrutiny. An audit report that looked at what happened in Sammy’s care, would, I’d wager, have lots to offer the inquest and the coroner.

I can only imagine why KCC are trying to hide it. Perhaps it contains more frank and open discussions of their performance/challenges/failings than they’d like, or perhaps it reveals an organisational culture that they’re not too proud of or would rather wasn’t exposed publicly to the world. Who knows. What I do know is that when a 13 year old dies on your patch, when their parents have been crying out for support, the very least you could do is act with empathy, honesty and transparency, whether you’ve a statutory duty to do so or not.

I remember reading somewhere that if someone is giving honest answers or being up front they don’t often feel the need to qualify their statements. It’s a bit like when a corporate body of some description describes an apology they’re giving as ‘genuine’. Why on earth would an apology be anything but genuine? Unless your motives aren’t genuine in the first place.

Mr Landau was the one who raised that KCC were not trying to duck issues or prevent matters being aired… while also refusing to disclose a document due to their holding the copyright having written it. Mind boggling, and a bit like a ‘genuine’ apology, perhaps the reason Mr Landau mentioned it is because that’s exactly what they were trying to do.

The Coroner was to the point in her response:

‘I was surprised by the request not to onwardly disclose, there are some redactions that will need to be made… I do consider the document is relevant. I do consider it is in scope. I note the objections of KCC but I do consider it should form part of the inquest and there is no reason I can see other than an objection there may be some harm or risk to the future, that’s something that can be properly dealt with in due course. There are some redactions that do need to be made, very few, it will be provided in due course, hopefully again within the 7 days’.

I still can’t quite process how a local authority can attempt to withhold documents from a coroner on the basis of copyright ownership, to protect some hypothetical future harm… in an Article 2 inquest, exploring the circumstances surrounding the actual life and death of Sammy.

I’ll finish this post with a pic of a craftivism banner I left in Sheffield on Human Rights Day 2018 when I was attending a PIR for Thomas Rawnsley, I also left one in Oxford when Connor’s inquest was happening. Am thinking that one might be needed as a reminder in Kent, time to get my needles out.

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