By Abhijeet Mukherjee
Barrister
Outer Temple Chambers
London
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To consider the special challenges to advocacy
in an Inquest concerning medical treatment
and how best to overcome them
To provide a guide to good advocacy in the
Coroners’ Courts
To deal specifically with the cross-examination
of doctors and expert medical witnesses
Highlighting pitfalls in advocacy
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“the act of pleading for, supporting, or recommending;
active espousal”
[Origin: 1375–1425; late ME advocacye < ML
advocātia. See ADVOCATE, -ACY]
– Dictionary.com
Advocacy is putting your case
In an Inquest ,this means putting your case to
persuade the Coroner to determine that which is in
the best interests of your client
It therefore involves knowing your case
Advocacy will involve cross-examination of
witnesses: doctors, nurses, pathologists & experts
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Coroners Act 1988
Coroners Rules 1984
Case Law
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Inquest is fact- finding exercise
No one on trial
No sides : only interested parties
“the Coroner is almost unique within our legal
system, having the role of an ‘inquisitor’ rather than
simply presiding over court proceedings”
[Dorries, 2nd Edition, Chapter 1.01]
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The key to good advocacy is preparation
Forming a ‘theory’ of your case is vital
Your role is defined by the client’s needs and
aspirations from the inquest
Some clients want answers to specific questions:
consider whether they can be realistically dealt
with in the inquest
Other clients are happy to leave it to you to do
what you think is best
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Give serious consideration to obtaining expert
reports
We are lawyers not doctors !
Your position is considerably strengthened by
having the benefit of expert opinion
Don’t take the approach ‘we can get expert
opinion after the inquest’ unless a straightforward
factual issue e.g. patient falls from bed – usually
an opportunity lost
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Analyse the issues – identify correct
expert/experts
Witnesses: Who do you need to have at the
inquest ?
Consider a pre-inquest review if appropriate
Establish early contact with the Coroner’s
officer – a useful ally to have
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Coroner has discretion whether to disclose
statements or not
Practices vary widely
R v HM Coroner for District of Avon Ex Parte
Bentley [2001] EWHC Admin 170 : need for
Coroner to exercise discretion fairly and
family’s right to participate
Aim to obtain as much disclosure as possible
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Is yours a case of neglect ? Unlikely but always
consider.
Classic definition:
‘Neglect in this context means a gross failure to
provide adequate nourishment or liquid, or provide
or procure basic medical attention or shelter or
warmth for someone in dependent position (because
of youth, age, illness or incarceration) who cannot
provide it for himself. Failure to provide medical
attention for a dependent person whose physical
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condition is such as to show that he obviously
needs it may amount to neglect. So it may be if
it is the dependent person’s mental condition
which obviously called for medical attention’.
Jamieson
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Whether Article 2 is engaged in your case
determines the scope of the inquest
Article 2 is engaged if ‘gross negligence’
If Article 2 is engaged, the scope of the inquest
is wider beyond a ‘Jamieson’ inquest
In practice, little difference if Coroner decides
to have full inquiry
Regardless of Article 2, aim to press for as full
an inquiry as your client needs
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Coroner may have decided to have one
If not consider whether you should apply for a jury
Most clients would prefer to have one; public
element to the investigation of the death
Test for jury in a hospital death: S. 8.(3)(d) of the
Coroners Act, ‘..the death occurred in circumstances th
continuance or possible recurrence of which is prejudicia
to the health or safety of the public or any section of the
public’.
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In order to assess this test, consider the ‘breach of
duty’ and ask yourself the simple question, how
easily could this happen again
If ‘simple’ negligence , unlikely to get a jury
If a systems failure, e.g. systemic breach of hospital
protocol, ask for jury
More likely to get a favourable verdict from the jury
– not case-hardened
Resistance : Some coroners don’t want juries
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Always remember to dress appropriately
Always remember to convey condolences to
the client’s family if not done already
Always remember to maintain an appropriate
demeanour : gage the mood of your client
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Other lawyers in an inquest are not your
opponents, they are other interested parties
Have a chat before: find out as much as you can
about the angle they will take & their
competence !
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Likely to be ‘independent’
Not a defensive clinician
Consider how best to maximise this
If death unconnected to presentation, invite an
opinion as to how the chain of events occurred
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Also likely to be ‘independent’
Assess how supportive they are or are capable
of being
Don’t alienate
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Will usually be a narrative verdict
Consider draft narrative at outset of case
Rule 40 does not permit advocate to address
Coroner on the facts – different Coroners
observe to different degrees
Rule 42 stipulates that verdict must not
determine criminal or civil liability – must not
blame
Can include acts or omissions
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This permits Coroner to take action to prevent
similar fatalities
Can utilise this Rule to ask questions of current
practices and procedures
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Most difficult part of advocacy : cross
examination
Calibrate style of cross examination to the
nature of witness’s evidence
Avoid ‘one size fits all’ approach
Recognise need to have different gears
Don’t boil the frog
Check for the gaps in the statements
Go ‘behind the bullshit’
Know when to stop
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If a number of clinicians giving evidence,
consider divide and rule, e.g. if SHO left in
lurch by Registrar ask questions about how
things would have been different
If Consultant not likely to be happy with
treatment given, consider asking what would
have been better approach to avoid death
and/or prevent recurrence
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Dealing with previously undisclosed
information – minimise by seeking as much
relevant disclosure as possible
Intransigent Coroner reluctant to have wide
inquiry – emphasise the importance to the
family and need for full inquiry
Defensive and difficult witnesses – don’t boil
the frog
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Convey condolences to client
Manage client’s expectations
Be respectful of Coroner’s Court and the
proceedings but never diffident
Connect controversial questions to need to
establish facts and/or cause of death
Do not fear asking difficult questions
Be tenacious
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Raise Rule 43 at early stage so as to allow for
questions on ongoing practice
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GOOD LUCK !
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