Unlawful killing rulings: what law changes mean for the medical profession

Following the Supreme Court’s historic decision regarding unlawful killing rulings, Medical Protection’s Dr Beth Walker, Medicolegal Consultant, and Alicia Hayes, Legal Adviser, look at the background to the case and the potential consequences for clinicians

In November 2020, the Supreme Court handed down its much-awaited decision in R (on the application of Maughan) v HM Senior Coroner for Oxfordshire [2020] UKS.[i]

Previously, to return a conclusion of unlawful killing at an inquest, the coroner had to be satisfied to the criminal standard of ‘beyond reasonable doubt’. However, the Supreme Court’s ruling in Maughan confirmed the appropriate standard of proof is now the civil standard.

In other words, conclusions of unlawful killing can now be returned on the balance of probabilities.

Giving evidence at an inquest

A coroner’s inquest is something many doctors are likely to experience at some point in their career. An inquest is a fact-finding inquiry conducted by a coroner where the death is unnatural, or the cause of death is unknown.

The purpose of an inquest is to answer four questions:

• Who was the deceased?
  
  
• When did they die?
  
  
• Where did they die?
  
  
• How did they die?

It is this last question that usually occupies much of the inquest. The coroner must determine not only the pathological cause of death, but also the events leading to the person’s death. An inquest is an inquisitorial, rather than adversarial, process and so differs from most other court hearings.

How doctors can become involved in an inquest

The coroner will usually request a factual statement from those centrally involved in the care, for example from doctors and healthcare professionals involved in the treatment of the deceased immediately before, or in the lead up to, their death.

Medical Protection can provide advice to members if asked to provide a statement for the coroner. Having received their statement, the coroner may decide they do not require any further input from those clinicians, or they may require their attendance at the inquest as a witness. 

Witnesses may be called as a ‘Witness of Fact’ only, or in some circumstances they may be given the additional status of an ‘Interested Person’ (IP). If a healthcare professional or organisation (eg Trust) is designated as an IP, this is usually because the coroner is of the view that an act or omission on the part of the healthcare professional or organisation has caused or contributed to the death, and there is consequently a risk of criticism. Factual witnesses are not entitled to legal representation; however, IPs do have a right to legal representation if required and are entitled to see the written evidence before the coroner.

If you are self-employed, or if the case arose in the private sector without an arrangement in place with the private healthcare provider, legal representation may be arranged through Medical Protection if appropriate. Generally speaking, for doctors working within a Trust where there is no conflict between their evidence and the Trust’s position, it is in their interests to remain under the umbrella of legal representation provided by the Trust. However, if a potential conflict is identified between a doctor’s interests and those of their Trust, separate representation may be arranged through Medical Protection.

The kind of verdicts to expect

The coroner will reach their conclusion once all the evidence has been heard and considered. A conclusion can be short-form or narrative, or a combination of both. Short-form conclusions include natural causes, suicide, unlawful killing, accident or misadventure, and open – where there is insufficient evidence for any other outcome. A conclusion of unlawful killing can only be found in deaths arising from murder or manslaughter, including gross negligence manslaughter and corporate manslaughter.

Alternatively, the coroner may give a narrative conclusion, setting out the facts surrounding the death in more detail and explaining the reasons for the decision. The coroner can also add a rider of ‘neglect’ to the conclusion, which in a medical context would require there to have been a gross failure to provide basic medical attention, without which the death would not have occurred. It is important to emphasise that neglect in this context is a distinct legal concept and should not be equated with negligence or gross negligence.

While the coroner is precluded from apportioning blame, they can record a conclusion which identifies a failure, or outlines an act or omission which caused or contributed to the death. If a systems issue is identified, the coroner may decide to issue a Regulation 28 Prevention of Future Deaths (PFD) report to a Trust or healthcare organisation to compel change. If criticism of an individual doctor can be implied from either the coroner’s conclusion or a Regulation 28 report, the doctor may be obliged to inform the GMC as per paragraph 75 of Good Medical Practice. 

The case of Maughan

Mr James Maughan was found hanging in his prison cell at HMP Bullingdon, on 11 July 2016. At the inquest into Mr Maughan’s death, the jury – present as Mr Maughan died while under state detention in prison – included the following in their narrative conclusion:

We believe James deliberately tied a ligature made of sheets around his neck and suspended himself from the bedframe...We find that on the balance of probabilities it is more likely than not that James intended to fatally hang himself that night.

Until Maughan, in order for a coroner or a jury to return a conclusion of suicide, they had to be satisfied, to the criminal standard of proof (beyond a reasonable doubt), that the deceased took his or her own life, and that he or she intended to do so.

However, the unique feature in Maughan was that the jury had concluded by way of a narrative, rather than a short-form conclusion, that the death was as a result of suicide. The jury came to their conclusion on the balance of probabilities, rather than the required higher criminal standard of proof. Mr Maughan’s brother, a devout Catholic, challenged the conclusion of the jury by way of judicial review. He argued the required standard of proof had not been met, and so the jury’s conclusion was unlawful.

At first instance, the court found the conclusion of the jury clearly amounted to a narrative conclusion of suicide despite the fact the word “suicide” had not been used. In addition, they made this finding on the balance of probabilities. The court rejected Mr Maughan’s argument that a conclusion of suicide could only be returned if the higher criminal standard of proof was met.

What was the role of the Supreme Court?

The question for the Supreme Court to consider was what standard of proof must be applied, when determining coronial conclusions of unlawful killing or suicide. The Supreme Court decided the appropriate standard of proof for all conclusions in the coronial setting is the civil standard, including for conclusions of unlawful killing. This is irrespective of whether the conclusion is expressed as a short-form or a narrative conclusion.

The judgment focused a good deal on removing the inconsistency which existed due to having to apply two standards of proof. The court then emphasised that the coroner’s court was a fact-finding inquiry and did not amount to criminal proceedings.

This decision has marked a significant departure from what was, until this point, very well-settled law. In essence it means it will be much easier to return a conclusion not only of suicide, but also one of unlawful killing at inquests.

As a result of this judgment, the Chief Coroner has issued an updated law sheet[ii] to reflect the position.

What is the impact of this decision?

The relative rarity of a conclusion of suicide following an inquest, due to the higher standard of proof required, will probably change. This may lead to more accurate recording of official suicide statistics, which could in turn have an impact on the governmental and societal focus placed on the issue. On the other hand, this change may cause further distress to already bereaved families.

Given this decision means the threshold of proof necessary for a conclusion of unlawful killing is now lower, it is therefore now a more likely outcome. In fact, up until this point, it was relatively rare. If a conclusion of unlawful killing is returned, then it is more likely any medical professional directly involved or responsible for the care, will be obligated to self-refer to the GMC. It should be noted that criminal proceedings should always precede an inquest hearing.

Consequently, parties should be aware of the risk of a potential conclusion of unlawful killing, as the Crown Prosecution Service and police should have already investigated the death and made decisions in that regard. However, a coroner’s conclusion of unlawful killing could also prompt a fresh investigation or reinvestigation of the matter from a criminal point of view.

It is likely that more families may try to push for a conclusion of unlawful killing, particularly where there have been clear failings in care. These inquests may become more complex and lengthier as a result, and it may be that doctors will need separate representation from their Trust or employer to best protect their interests. 

How Medical Protection can support members

In addition to assistance with drafting statements for the coroner, Medical Protection can also instruct legal representation for members at the hearing if appropriate and required. We also support members in preparing to give evidence, which can be a daunting prospect.

There is no doubt the implications of a conclusion of unlawful killing for a medical professional or organisation, including a GMC investigation, could be far reaching.

It is therefore advisable that members get in contact with Medical Protection as soon as possible, ideally from the moment they are contacted by the coroner’s office or become aware an inquest is likely to be held. This will enable us to take the right steps to ensure our members’ interests are protected as much as possible against the professional impact associated with a conclusion of unlawful killing.

For further information, take a look at Medical Protection’s factsheet on inquests.