The chief coroner issued revised guidance on 4 November 2020, on the issuing of PFDs under the Act. The legal and procedural process of issuing PFDs remains largely unaffected in the new guidance but there are some notable changes.
So what has changed?
The revised guidance has placed an increased emphasis on learning and reiterates that 'PFDs are not intended as a punishment; they are made for the benefit of the public' and are 'intended to improve public health, welfare and safety'. While there is now a greater focus on PFDs being considered as an important learning tool to drive change within organisations, it must be noted that they are still to be routinely sent to the Care Quality Commission (CQC), which can undoubtedly lead to increased public scrutiny of an organisation.
Consideration of remedial action taken
The guidance confirms that the coroners should focus on the 'current position' at the time of considering whether a PFD report is required and to take into account any relevant changes, which may have been implemented by an organisation in order to address future fatalities. Further clarification is provided to confirm that a coroner may consider what action is presently being taken in order to address concerns in respect of future deaths.
This is particularly relevant where an organisation may have taken positive action, however, this has not yet been fully implemented at the time of the inquest hearing. In such circumstances, the coroner may consider factors including the organisation's commitment to take remedial action and address the coroner's concerns, as well as the supporting evidence available to demonstrate its commitment. As such, a clear plan to implement actions by an organisation may potentially avoid a PFD report on an issue already considered by the coroner.
Given that the coroner is a 'local judge and therefore is able to consider local trends' the revised guidance now confirms that the coroner may take local considerations into account when deciding whether the duty to make a PFD report arises. This means that the coroner can now consider other PFDs made to the same organisation and the actions taken to address any concerns.
Issues that have not been explored properly at inquest
PFDs do not have to relate to issues that were causative, or potentially causative, of the death in question, as was the case before. However, the new guidance goes further and confirms that 'it is not a sufficient basis for a PFD simply because it occurs to the coroner or an interested person that a certain matter might benefit from consideration, if it has not been at all germane to the death under investigation.'
The guidance goes onto confirm that while a PFD report may be made to bring learning to local, regional or national level, coroners should be cautious about reporting on matters, which have not been properly explored at inquest.
Disputes on issuing a PFD report
Further guidance echoes recent case law to confirm that once a PFD report has been sent to an organisation by the coroner, it cannot be withdrawn and the coroner has no power to do so.
This reaffirms that the appropriate remedy for challenging a PFD report is to respond in writing within the prescribed timeframe should the recipient feel that the concerns of the coroner are unfounded.
Alternatives to PFD reports
The coroner does still have the option to write a letter to an organisation expressing concern where the concern does not specifically relate to a risk of future deaths. The revised guidance has gone further to state that such a letter should only be considered in exceptional circumstances and the default position is that the coroner should make a PFD report. There will no doubt be a level of anxiety as to whether the added 'only in exceptional circumstances' will lead to increased PFD reporting.
The coroner has also provided further clarification in relation to Article 2 inquests to confirm that while a PFD report may complete the state's duty to fully inquire, in line with recent case law, a PFD is not mandatory simply because an inquest is an Article 2 case.
Format of the PFD report
The guidance now provides seven further examples of PFDs to assist coroners with the drafting of the reports and to ensure uniformity and consistency in the coroners approach when drafting a PFD report.
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