INDEPENDENT INQUIRIES                                                     Anselm Eldergill                                ...
principle of fairness, an inquiry must balance various needs: thoroughness, speed, economy, andinformality. F amily member...
10. Following consultation with the clerk to the inquiry, to set a timetable for            each inquiry.            11. A...
— the actual and assessed risk of potential harm to himself or others            — the history of his medication and compl...
2                Any points of potential criticism will be put to witnesses of              fact, either verbally when the...
3. To act in accordance with any instructions given to the clerk by the       chairman and/or panel of inquiry.       4. T...
13. the proceedings of the panel of inquiry are kept confidential, and that            discussions with, and decisions mad...
8. To consider with the chairman the need to invite representations from (i)           expert witnesses and representative...
obtain a number of independent service perspectives, from          the chairmen of any recently completed local inquiries,...
shortcoming x, which the commissioners and        service providers have dealt            with by taking actions y and z.’...
to ask each of the agencies involved to consider whether the public interest in       holding a full, independent, inquiry...
ARRANGING THE INQUIRY BUNDLES Vol 1        General Practitioner records             Vol 7       Post-offence  prison recor...
recommend a course of action for each and every problem (or explain why       improvement is impossible).              ref...
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How to conduct a post homicide or suicide inquiry

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How to conduct a post homicide or suicide inquiry

  1. 1. INDEPENDENT INQUIRIES Anselm Eldergill British Journal of Health Care Management, May 1999, pp.198–203INTRODUCTIONHealth Service Guidelines require Health Authorities to hold an independent inquiry in cases wherea psychiatric patient kills someone (HSG(94)27). A purely internal investigation will likewise beinappropriate if an incident, or series of incidents, calls into question existing procedures (BuildingBridges, pp.80–81). Such inquiries involve a great deal of work and are a daunting prospect foranyone who has not previously had to arrange one, the more so because no legislation ordepartmental guidelines have been issued which prescribe or recommend particular procedures.This article aims to guide managers through the process, and it includes precedents which theycan use or adapt , such as terms of reference and job descriptions. Because the conduct of allinquiries involves applying certain universal principles, and taking certain common steps, theprocedures described below will also be useful for managers working outside psychiatry. Theviews and suggestions expressed in this article are those of the author. They are ‘EldergillProcedures’, and Health Authorities, and the chairmen of independent inquiries, are in no sensebound by them.GENERAL PRINCIPLESAn inquiry is a learning tool: its purpose is to learn any lessons which may minimise the possibilityof a recurrence of the tragic event, which is why the report is made to the bodies that have powerto change the way the service is provided. The outcome should be that any feasible improvementsare made, for the future good of everyone.The focus of the inquiry is the care and treatment of a particular patient, rather than the triggeringevent itself, so that the allocation of blame can only ever be an incidental effect of the inquiryprocess. As regards the treatment and care provided immediately prior to the homicide, theconcern is with causation, not culpability. Retribution, and the expiation of wrong-doing, arematters for the civil and criminal courts and for professional disciplinary bodies. Moreover, unlessinsane at the time, the patient is responsible for his act, not the professionals who tried to helphim. Nor can there be any presumption that the fact of the homicide is evidence of poor treatmentor care. The occurrence of such a tragedy does not per se demonstrate any error of judgement onthe part of those discharging or supervising the patient. Even a very low risk, such as winning thelottery, from time to time becomes an actuality.Apprehension and fear on the part of those taking part must be minimised, so that the inquirydoes not interfere with the service being provided to other patients. Public inquiries inevitablyinvolve confrontation and those attending are often inhibited from being candid with the panel. Aprivate hearing is therefore to be preferred. The use of terms such as ‘hearing’, ‘witness’ and‘evidence’ should be confined to the procedural part of the terms of reference. In other contexts, itis less inhibiting to refer to meetings and discussions with those involved in the inquiry. Indeed,referring to the process as a ‘service review,’ rather than as an ‘inquiry,’ may be moreconstructive.Given the usual remit, the problem is how to achieve procedural fairness in a process of decision-making which involves commenting on professional conduct or, very rarely, criticising it. Theessential requirement is that the inquiry should be fair and just and be seen to be fair and just.This requires providing some degree for protection to individuals whose credibility is stronglyimpugned, and protecting them from unfair attack or condemnation. Subject to this overriding 1
  2. 2. principle of fairness, an inquiry must balance various needs: thoroughness, speed, economy, andinformality. F amily members, carers and victims should be kept informed of the progress of theinquiry and be supported by an independent person or organisation. They should be told thecontent of any press releases before the information is made public. The Health Authority shouldconsider reimbursing the legal fees of family members if they wish to be accompanied to thehearing by a lawyer.THE COMMISSIONING AGENCIESAlthough it is the relevant Health Authority that is required to hold the independent inquiry, it isnot uncommon for the local social services authority to be a joint commissioner. In such cases, thesocial services authority will need to be a joint partner from the outset, agreeing the terms ofreference, panel appointments and financial arrangements. The appointment of an inquiry steeringcommittee, comprising a representative from each authority together with the inquiry chairmanand clerk, helps to ensure good co-ordination and communication.APPOINTING A CHAIRMAN OF THE INQUIRYThe first step is for the Health Authority, in consultation with the local social services authority, toappoint a legal chairman of the inquiry. The chairman’s functions are clear from the following jobdescription, which should be annexed to his letter of appointment. It is particularly important thatthe chairman has authority to make decisions in between meetings of the panel members, ifunnecessary delays are to be avoided. Role of the Legal Chairman of the Inquiry The principal functions of the legal chairman are as follows:— 1. To ensure that the inquiry is conducted in accordance with the terms of reference. 2. To chair meetings of the panel members and the private hearings at which oral evidence is given. 3. To ensure that the inquiry is conducted fairly, that is in a manner which is consistent with the principles of natural justice. 4. To provide guidance to the other panel members, and to witnesses who give oral or written evidence, on matters of law. 5. To take all decisions about the conduct of the inquiry prior to, or between, meetings of members of the inquiry panel. 6. To inspect, and decide how to respond to, all documents and correspondence submitted to the panel of inquiry (other than correspondence of a purely administrative nature). 7. To be responsible for the drafting of the final report, and to approve the final report. 8. To draft (1) the case chronology summarising the relevant history; (2) any Salmon-type letter, identifying heads of evidence upon which it is thought that the witness may assist the inquiry; (3) any letter to a witness with which is enclosed a part of the draft report containing criticisms of her/him; (4) the letter to the Health Authority which accompanies the draft report; (5) any letters to persons whose interests may be adversely affected by the report’s publication. 9. To draft or approve all other documents and correspondence sent out by or on behalf of the panel of inquiry, other than correspondence of a purely administrative nature. 2
  3. 3. 10. Following consultation with the clerk to the inquiry, to set a timetable for each inquiry. 11. As soon as reasonably practicable, to meet with staff involved in the care or treatment of the patients into whose cases the panel is inquiring. 12. Where considered necessary or desirable by her/him, to consult the other panel members and the clerk to the inquiry about any decision concerning the conduct of the inquiry.The authorities should provide the chairman with a detailed information pack concerning theorganisation of local health and social services. The Health Authority should also write to thepatient and the deceased’s next-of-kin, advising them that an inquiry has to be held, and seekingthe patient’s consent, via his solicitors, to the release of relevant records. It is necessary to takethis action as soon as possible, subject to the possible caveat that the criminal court papersshould not be sought until after the conclusion of those proceedings (see below). The chairmanwill need to be kept regularly informed about how these criminal proceedings are progressing.This is particularly important if the case has been well publicised, because of the need to plan aresponse to press coverage of the trial or sentencing hearing. Having appointed the chairman, thetwo authorities can then agree the terms of reference with him.AGREEING TERMS OF REFERENCEThe terms of reference should direct attention away from the ‘how and why’ of the homicide to themore general issues of patient treatment and care. To this end, they should begin with a statementsetting out the ethos and purpose of the inquiry, emphasising that the inquiry process is supposedto be constructive, and that the inquiry panel will do all it can to reduce anxiety amongstparticipants. They should then go on to specify the inquiry panel’s remit and the procedure to beadopted by the panel. The terms should be enclosed with the letters of appointment. Generalissues to be considered at this stage are confidentiality (the extent to which an undertaking shouldbe given not to include information about the patient or his family in the inquiry report); whetheror not it is productive to ask witnesses to affirm; whether anonymity should only be offered tothose professionals who assist the inquiry; whether employees’ contracts of employment requirethem to co-operate with the inquiry; and whether the final report will be published. BuildingBridges states that undertaking to publish the report enhances the inquiry’s credibility but that ‘inexceptional cases it may not be desirable for the final report to be made public.’ Note that theindependence of the inquiry precludes the Health Authority reserving any right to have an observerpresent at the hearings. INDEPENDENT INQUIRY INTO THE CARE AND TREATMENT OF XPurpose of the Inquiry An inquiry is a learning tool: its purpose is to learn any lessons which may minimise the possibility of a recurrence of the tragic event, which is why the report is made to the bodies that have power to change the way the service is provided. The outcome should be that any feasible improvements are made, for the future good of everyone. The independent panel will do all they can to reduce apprehension on the part of those taking part.Terms of Reference 1 To examine all circumstances surrounding the treatment and care of patient X by the Mental Health Services and Social Services, from 19— until the death of Y. In particular: w the quality and scope of his health, social care and risk assessments. w the suitability of his treatment, care and supervision in the context of — his actual and assessed health and social care needs 3
  4. 4. — the actual and assessed risk of potential harm to himself or others — the history of his medication and compliance with that medication — any previous psychiatric history, including alcohol and drug misuse — any previous forensic history w the extent to which X’s care complied with statutory obligations, the Mental Health Act Code of Practice, local operational policies, and relevant guidance from the Department of Health [including the Care Programme Approach (HC(90)23/LASSL(90)11], and the guidelines on supervision registers (HSG(94)5) and discharge planning (HSG(94)27)]; w the extent to which X’s prescribed treatment and care plans were— (i) adequate; (ii) documented (iii) agreed with him; (iv) carried out, (v) monitored, and (vi) complied with by X. 2 To consider the adequacy of the risk assessment training of all staff involved in X’s care. 3 To examine the adequacy of the collaboration and communication between the agencies involved in the care of X (A NHS Trust, B Social Services and X’s General Practitioner) or in the provision of services to him. 4 To consider the adequacy of the support given to X’s family by the Community Mental Health Team and other professionals. 5 To consider such other matters as the public interest may require. 6 To prepare a report and to make recommendations to C Health Authority, B County Council and A NHS Trust for the future delivery, quality and range of care and treatment available to mentally ill people, including the safety of mental health users, the public and staff.Procedure to be adopted by the Inquiry 1 Every witness of fact will receive a letter before appearing before the panel. This letter will ask them to provide a statement as the basis of their evidence to the inquiry and inform them: (i) of the terms of reference and the procedure adopted by the inquiry; (ii) of the areas and matters to be covered with them; (iii) that when they give oral evidence they may raise any matter they wish which they feel may be relevant to the inquiry; (iv) that they may bring with them a friend or relative, member of a trade union, lawyer or member of a defence organisation or anyone else they wish to accompany them, with the exception of another inquiry witness; (v) that it is the witness who will be asked questions and who will be expected to answer; (vi) that they will be asked either to affirm or confirm that their evidence is true; (vii) that their evidence will be recorded and a copy sent to them afterwards for them to sign. 4
  5. 5. 2 Any points of potential criticism will be put to witnesses of fact, either verbally when they first give evidence, or in writing later, and they will be given a full opportunity to respond. 3 Written representations may be invited from professional bodies and other interested parties regarding best practice for persons in similar circumstances to this case and as to any recommendations they may have for the future. 4 Those professional bodies or interested parties may be asked to give oral evidence about their views and recommendations. 5 Anyone else who feels they may have something useful to contribute to the inquiry may make written submissions for the inquiry’s consideration and, at the chairman of the panel’s discretion, be called to give oral evidence. 6 All sittings of the inquiry will be held in private. 7 The draft report will be made available to C Health Authority, B Social Services and A NHS Trust for any comments as to points of fact. 8 The findings of the inquiry and any recommendations will be made public. 9 The evidence which is submitted to the inquiry either orally or in writing will not be made public by the inquiry, except insofar as it is disclosed within the body of the inquiry’s report. 10 Findings of fact will be made on the basis of the evidence received by the inquiry. Comments within the narrative of the report and any recommendations will be based on those findings.Detailed summaries of the guidance issued by the Department of Health, and the way in which thecirculars inter-relate, is set out in Eldergill, Mental Health Review Tribunals — Law and Practice(Sweet & Maxwell, 1998).APPOINTMENT OF A CLERK TO THE INQUIRYAll appointments must be acceptable to the chairman if the inquiry is to run smoothly, and musthave sufficient time to devote to the process. The next appointment will be that of a clerk to theinquiry, who could be a solicitor or firm of solicitors, a Health Authority manager independent ofthe service providers, or a specialist clerk. The panel members’ functions are executive and theclerk’s administrative. In other words, it is for the members to decide how the inquiry will beconducted, and the clerk’s role is to take whatever steps are necessary to give effect to theirdecisions. Specifying the respective roles at the outset avoids misunderstandings later, which isimportant because the team will be working together over a long period. Role of the Clerk to the Inquiry The principal functions of the clerk to the inquiry are as follows:— General 1. To provide or arrange administrative, clerical and secretarial support to the chairman and other members of the panel of inquiry. 2. To give effect to decisions made by the chairman and/or the panel of inquiry. 5
  6. 6. 3. To act in accordance with any instructions given to the clerk by the chairman and/or panel of inquiry. 4. To assist the chairman in the exercise of her/his functions, as set out in the document entitled, Role of the Legal Chairman of the Inquiry. 5. To advise the chairman where necessary about matters which need to be addressed, and decisions which need to be made, in between meetings of the panel of inquiry.ParticularThe clerk to the inquiry shall in particular ensure that:— 1. the patient’s consent to the release of relevant records is promptly obtained, and that all relevant documentary evidence is then promptly sought from those organisations, bodies and individuals previously or presently involved in the patient’s care or treatment. 2. a draft timetable for each inquiry is promptly prepared and sent to the chairman. 3. all information and communications concerning the inquiry which are not of a purely administrative nature are promptly brought to the chairman’s attention. 4. all letters and documents sent to the panel of inquiry which are not a purely administrative nature are promptly copied to the chairman and, if s/he so decides, to the other members of the panel of inquiry. 5. before any letter or document which is not of a purely administrative nature is sent out by or under the name of the inquiry panel it is first promptly copied to, and approved by, the chairman. 6. all documents and correspondence approved by the chairman are promptly sent out . 7. all documents which the members of the panel of inquiry wish to copy to each other, such as draft reports and letters, are promptly copied to the other member or members. 8. all documentation and correspondence concerning the inquiry is retained and properly indexed. 9. proper and adequate arrangements are made for meetings of the members of the panel of inquiry, and for any other meeting held in the course of the inquiry. 10. proper and adequate arrangements are made for private hearings and meetings with witnesses, which includes ensuring that they are given adequate notice of hearings and meetings at which their attendance is requested; (ii) that they are properly informed of the venue; and (iii) that, where necessary, they are given necessary assistance to enable them to attend. 11. proper and adequate arrangements are made for the prompt printing of the panel of inquiry’s reports into the care and treatment of the patient. 12. all documents received or produced in connection with the inquiry are kept in a secure place to which persons other than the clerk and the members of the panel do not have access. 6
  7. 7. 13. the proceedings of the panel of inquiry are kept confidential, and that discussions with, and decisions made by, the chairman and other members of the panel, are not disclosed to any other person or body except with the chairman’s prior permission.TIMETABLE AND OTHER APPOINTMENTSOnce the chairman and clerk have been appointed, a provisional timetable and budget may beagreed with the authority, and arrangements made to provide the inquiry with necessaryaccommodation, staff, and facilities (such as a transcript service). Provided that the panelmembers are able to give the inquiry sufficient time, it is usually possible to abstract severalthousand pages of documents, hold an induction week, and hear all of the professionals involvedin the patient’s care and treatment, within six months of receiving the health and social servicesrecords. Keeping to such a strict timetable means that panel members and professional carersmust work to very short notice, but it has the advantage of shortening the ordeal. Some inquirieshave taken more than four years to complete, and incurred costs of over £600,000, and this isunacceptable. The appointment of a solicitor, or counsel, to the inquiry can be considered at thispoint, but has the disadvantages of making the process more formal and expensive, and isgenerally unnecessary if the chairman is a legal practitioner. The inquiry clerk will need a liaisonofficer at the Health Authority: someone who can deal promptly with requests for documents to becopied and sent out, and so forth. The venue for the hearings is often a local hotel, because this ismore informal and emphasises the inquiry’s independence of the service providers.APPOINTMENT OF THE OTHER MEMBERSThe other members of the panel are usually a consultant psychiatrist and a social worker, althoughin some cases it is desirable to appoint a nursing member. Clearly, the facts of the case dictate thetype of expertise which needs to be brought to bear on those facts. The terms of appointment caninclude a paragraph which incorporates the job descriptions. Role of the Members of the Panel of Inquiry The principal functions of the members of the panel of inquiry are as follows:— 1. To ensure that the inquiry is conducted in accordance with the terms of reference. 2. To attend, and participate at, meetings of the panel members and private hearings at which oral evidence is given. 3. To inform the chairman about matters concerning the inquiry which they consider should be discussed and dealt with at the next meeting of the panel of inquiry. 4. To provide guidance to the other panel members, and to witnesses who give oral or written evidence, on matters within their areas of expertise. 5. Where necessary, to advise the chairman about matters which need to be addressed or decisions which need to be made in between meetings of the panel of inquiry. 6. To consider all documents sent to them in connection with the inquiry and to advise the chairman of any action which they consider should be taken to address issues raised by those documents. 7. To identify with the chairman the potential witnesses and the issues believed to be relevant to the inquiry, and any locations which need to be visited. 7
  8. 8. 8. To consider with the chairman the need to invite representations from (i) expert witnesses and representatives from professional bodies, (ii) witnesses of local knowledge, and (iii) statutory bodies, such as the Mental Health Act Commission. 9. To assist in the drafting of the final report. 10. Where agreed with the other panel members, or in between meetings with the chairman, to draft any other documents or correspondence. 11. As soon as reasonably practicable, to meet with staff involved in the care or treatment of the patient into whose case the panel is inquiring.THE INQUIRY PROCESS ITSELFBecause of the inquiry’s independent status, the remaining steps are taken by the inquiry team butit is useful to summarise them for the benefit of those unfamiliar with the process. Checklist for the Inquiry team 1. The clerk indexes the incoming documents, collating and paginating them before taking six copies of each document: three for the inquiry members, one for the clerk, one for witnesses to refer to, and one spare copy. 2. As the documentary evidence is received, the chairman considers its likely relevance; prepares a case chronology (a lengthy document, usually about one hundred pages long, that links the various records); and starts writing a draft of the factual part of the report. 3. The chairman and clerk hold pre-inquiry meetings with the next-of-kin, the patient, and the teams involved in the patient’s care. Meeting the professionals at an early stage helps to allay any fears they may have about the inquiry, and so minimises the risk of resignations from the services. 4. Having first notified the patient and the deceased’s next-of-kin, the Health Authority issues a public statement announcing the inquiry, publicising its terms of reference, and inviting interested parties to contact the inquiry with their written observations. A formal announcement in the local press is more dignified, and so preferable, to a press release. 5. The inquiry panel hold their first meeting. They agree guidelines for the future conduct of the inquiry and plan the format of an induction week (see (7)). 6. The chairman and the clerk finalise a timetable for the hearings. 7. An induction week is held, during which the inquiry team: hold panel meetings at the beginning and end of the week; visit key sites (the hospital and community facilities used by the patient, and locations such as the exterior of the family home and the local estate); receive presentations from the Health Authority, NHS trust, and social services, summarising the organisation of the services and the local implementation of legislation and departmental guidelines; 8
  9. 9. obtain a number of independent service perspectives, from the chairmen of any recently completed local inquiries, the Mental Health Act Commission, the Community Health Council, MIND, the National Schizophrenia Fellowship, etc (this saves time by drawing on the expertise of those bodies which regularly scrutinise the local services); visit the patient, and speak with members of his current treatment team (this alerts the panel to recent developments relevant to their remit). By the end of the week, the panel members will both have read the documentation and have a reasonable understanding of the way in which local services are organised and delivered. At their end-of-week panel meeting they can define the main issues, and identify the professionals whom they wish to see and/or from whom they would like a written statement. They can also commission any additional documents referred to during the presentations, or in the medical, social work, and other notes; consider the need to receive evidence from expert witnesses; and, where necessary, suggest revisions to the terms of reference.8. The chairman drafts letters to prospective witnesses, identifying thematters upon which it is thought that they may be able to assist the inquiry.The letter should be as informal as possible. It will invite the witnesses tosubmit written statements by way of response, and each witness will be invitedto attend a hearing and to give oral evidence on a given date. They will be alsobe told of their right to bring a friend, relative, trade union representative orlawyer to the hearing.9. The hearings are held. It is often best to take the evidence in the followingorder: (a) the patient (b) those responsible for patient’s care and treatmentsince the offence; (c) family members; (d) other witnesses of fact; (e) expertwitnesses. The hearings enable witnesses to inform the panel of anyunrecorded events and observations, to deal with issues arising from thedocuments, to tell the panel how the service has changed since the homicide,and to make recommendations about the future delivery of services. There areno formal opening procedures and the questioning is led by the mostappropriate panel member. After questioning, the witnesses are invited toraise any matters which they consider to be relevant. Representatives shouldbe allowed to intervene if they are unhappy with the direction of questions;have short adjournments to advise their clients; ask their client supplementaryquestions after the panel have finished, in order to draw out facts not alreadyc o ve r e d .10. Statements (or transcripts) are sent to the witnesses, for correction,amendment and return. They are invited to submit a separate signed note ifthey have had any after-thoughts.11. Witnesses are recalled if there is a significant conflict of evidence or if onewitness has strongly criticised another.12. The panel agree their provisional findings in relation to the individual’scare and treatment.13. These provisional findings are communicated to the commissioners at aspecial inquiry steering committee meeting. If the commissioners considerthat immediate action is required, they can set about agreeing andimplementing an action plan. Everyone has a common interest in rectifyingobvious service shortcomings and such meetings have the additionaladvantage that the action plan is incorporated in the final report: ‘We found 9
  10. 10. shortcoming x, which the commissioners and service providers have dealt with by taking actions y and z.’ 14. If the various agencies agree, the panel complete their inquiries by spending time with the teams, observing the way in which they organise and co-ordinate their work, and inspecting documents detailing the present implementation of the 1983 Act and departmental guidelines. This helps to ensure that the final report is up-to-date and, if the homicide occurred some considerable time ago, that the final report does not over-emphasise matters of historic interest only or recommend actions which are no longer relevant. 15. The chairman drafts the report, which is then considered with his colleagues, and amended as necessary. 16. The clerk sends copies of any passages which contain criticisms of a witness to the relevant party, inviting a written response from them. They are invited to make any further observations or submissions that they wish to make. 17. The panel amends the report as necessary and then sends the draft report to Health Authority for their comments on points of fact. 18. Having made any necessary amendments, the panel produce the final report. 19. Letters are sent to the patient, family members, and anyone else whose interests may be adversely affected by the report, advising them of the publication date. 20. The findings and recommendations are published (and a press conference held if necessary). 21. The authorities provide a formal response to the report. 22. The panel follows up its report, reconvening in private after six months, to reconsider the responses, official and unofficial, to their recommendations.KEY AREASIt is useful briefly to consider the following key issues: the legal position when the patient refuses to consent to the disclosure of his records; at what stage health and social services records should be obtained; the importance of paginating the documents; the extent to which those attending meetings should be directly questioned; the format of the final report.Absence of consentIf the patient refuses to consent to the release of his records to the inquiry team, their optionsappear to be: to hope that he will agree to meet with them at some stage, so that they can allay his concerns; 10
  11. 11. to ask each of the agencies involved to consider whether the public interest in holding a full, independent, inquiry into the care and treatment of a patient who has committed manslaughter overrides that patient’s usual right to bar disclosure of documents concerning his care and treatment; to ask the Department of Health to grant the inquiry formal powers, under section 125(1) of the Mental Health Act 1983; to hold a very limited inquiry, which involves interviewing persons who are willing to see the panel, and considering documents already in the public domain, such as court transcripts and witness statements. to abandon the inquiry.The author’s own opinion is that in most cases the various health and social services agencies maylawfully disclose to the panel material which it is necessary for the inquiry to see in order to fulfilits terms of reference. This is for the reason already expressed, that the public interest in holdinga full, independent, inquiry into the care and treatment of a patient who has committedmanslaughter overrides that patient’s usual right to bar disclosure of documents concerning hiscare and treatment. However, each agency will need independently to consider the point, becauseeach of them that discloses runs the risk of having to defend proceedings for breach ofconfidentiality. Where only one agency decides that disclosure is not warranted then thecommissioners will need to consider applying to the High Court for a declaration. F aced with suchdifficulties, the advantage of conferring on the chairman a time-limited, formal, power tosubpoena documents is that the NHS trust, social services authority, and other agencies may assistthe inquiry without any fear that they are incurring a legal liability. Put crudely, the rationale is thatif the Department of Health ‘requires’ an inquiry to be held then it should confer on the panel ofinquiry any powers that are necessary to enable it to fulfil the terms of reference.Health and social services recordsIt is common practice not to disclose health and social services records to the panel, and not tobegin the independent inquiry, until the criminal proceedings have been concluded. Suchunderstandable caution is sometimes unhelpful. In particular, if the patient is unfit to plead, it maydelay the inquiry by 18 months. The effect is greatly to prolong the ordeal for the professionalsand the families of the patient and victim, and the eventual report may end up addressing aservice which, in the main, no longer exists. In principle, there is no reason why an independentinquiry, held in private and overseen by a lawyer, should any more interfere with the criminalprocess than the internal inquiries held immediately after the homicide. In many cases it will besensible for the panel to consider health and social services records, and to meet withprofessionals to discuss care and treatment issues, as soon as possible. Once the criminalproceedings have been concluded, they can then meet the patient and review the documentsarising out of those proceedings, presenting their report shortly afterwards.Producing a bundle of documentsThe need to rectify documents that have been copied to panel members without being adequatelyindexed and paginated is a common problem, and leads to much wasted time and costs. Thepreparation of a detailed chronology, and the need to refer professionals and panel members toparticular entries, necessitates that each page of the inquiry bundle has a unique number. This canbe achieved by filing the documents in twelve ring-bound volumes and then paginating each pagebefore taking copies. 11
  12. 12. ARRANGING THE INQUIRY BUNDLES Vol 1 General Practitioner records Vol 7 Post-offence prison records, including the inmate medical record; Vol 2 Pre-offence hospital/ psychiatric Vol 8 Post-offence psychiatric reports records Vol 3 Pre-offence social services records Vol 9 Post-offence social work file Vol 4 Pre-offence Probation Service Vol 10 Post-offence hospital records records (nursing, psychological, special investigations) Vol 5 Police statements and exhibits; Vol 11 Documents produced by inquiry panel members Vol 6 Health and social services internal Vol 12 Correspondence an d inquiry reports miscellaneousSo organised, the first page of the General Practitioner records becomes 1/001, and additionalrecords are inserted at the back of the relevant volume, paginated, copied, and distributed.Questioning professionals and othersEveryone who assists the inquiry has a right to be treated with respect and it would be natural forsome of them to reflect upon the relative virtues of discretion and candour. Candour should beencouraged and, in many ways, is the ultimate test of professionalism. The honest professionalwho accepts that her or his practice, or local practice, might be improved upon in some respectthereby ensures that the future direction of services is based upon a true and comprehensiveunderstanding of the current state of the services.The final reportIt is suggested that, as a general rule, the report should: be kept short and be accompanied by an executive summary of the main points (few people read long reports). not disclose personal information unnecessarily. concentrate on the terms of reference, and in particular local services, resisting the temptation to address issues such as the content of future legislation (the authorities are paying the panel members to inquire into the delivery of services to their local population). be confined to points upon which the panel are agreed (if the panel cannot agree that a particular reform is necessary then the need to reorganise the service should be left to the local agencies). start with a chapter which briefly sets out what the public can realistically expect in relation to psychiatric treatment, social care, risk assessments, discharge planning, etc. accept that all discharge decisions involve the assumption of a risk. make clear the legislative and other constraints to which practitioners are subject, so that treatment and care decisions are measured against a realistic yardstick. 12
  13. 13. recommend a course of action for each and every problem (or explain why improvement is impossible). refer to commendable practices. keep the number of recommendations short (if six key recommendations will account for 95% of the improvements that result from the inquiry, they should not be lost amongst — and local practitioners should not be subjected to — a welter of minor recommendations about form-filling, and so forth).FUTURE DEVELOPMENTSThe arrangements set out in Health Service Guidelines HSG94(27) are being reviewed. TheGovernment has indicated that the new Commission for Health Improvement is likely to have a rolein assisting with inquiries held under the National Health Service Act 1977. It is possible that theCommission will also assume a responsibility for inquiries following homicides, although sucharrangements would need to ensure that the delivery of social services, and not just health care,are subject to review. 13

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