Inquest Funding– Ministry of Justice Final Report Published
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**Updated May 2019**
Since publication of the report the House of Commons Justice Select Committee has urged the government to revisit the issue of legal aid at inquests. In a public letter to David Gauke MP the committee said it was ‘fundamentally unfair for public bodies to have legal representation at the highest level of expertise whilst bereaved families are unrepresented – especially in relation to deaths in custody’. The Ministry of Justice cites cost as a reason not to change its policy.
Time will tell whether continued pressure will result in an increase in inquest funding for bereaved families.
As a result of their work on Inquests Jackie Linehan, Legal Director and Mike Bird, Partner at Enable Law were invited to contribute to the Ministry of Justice consultation into a review of inquest funding. The Final Report from that review has now been published.
Inequality of arms (the right to a fair trial) for bereaved families has been raised in a number of reports in particular those where the State has legal representation and bereaved families do not. The following reports called for a review of the provision of legal aid for bereaved families attending inquests:
- Lord Bach’s final report of his Commission on Access to Justice, published in September 2017,
- Bishop James Jones’ review of the experiences of the Hillsborough families, published November 2017,
- the Chief Coroner’s Third Annual Report to the Lord Chancellor: 2016-17, also published in November 2017
There have also been a number of debates and representations made in Parliament where MPs have raised concerns about the existing system and equality of representation.
At most inquests involving the death of a loved one following healthcare input the Hospital or Doctor will have legal representation yet there is very limited funding for a bereaved family to seek legal advice and support. This is despite the fact that:
- The next of kin/ family are at their most vulnerable. A loved one has died, and in most cases they will not understand the Inquest process nor the medicine that was used in treatment. They are expected to raise impartial questions of medically trained people (Doctors, nurses etc) in circumstances which are both emotive and emotionally draining for them.
- In some circumstances the Coroner may invite the family to leave the room whilst upsetting evidence is given. This does not sit well with a family being asked to engage in proceedings without legal representation.
- They have no knowledge of the various tests required to trigger Article 2 (an enhanced inquest involving Article 2 of the European Convention of Human Rights, used when it is suspected a person died while in the care of the state), or the evidence which they should be inviting the Coroner to consider in advance of the Inquest. Nor do they have knowledge of the type of inquest conclusion which might be available/ they should be seeking.
- They are likely to be faced with a legal team representing the Hospital / GP and staff who may be more concerned with reputational management than an open inquiry. The Trust legal team will be endeavouring to manage their client’s best interests. This includes managing the witness evidence supplied to the Coroner, managing the evidence given to their best ability and avoiding a ‘Preventing Future Deaths report’ and/ or adverse conclusion. These are all issues which a family cannot be expected to understand or manage even in the best of circumstances, and certainly not when considering the detail of their loved one’s unexpected death.
It was always going to have significant implications on Legal Aid budgets if any bereaved family attending an inquest investigating a healthcare related death were to qualify automatically for Legal Aid. However it was hoped that the inequality would be remedied as part of this review.
Unfortunately the conclusion of the review does not back the introduction of non-means tested Legal Aid for families where the state has representation. The review states:
‘We also acknowledge the calls for the introduction of non-means tested legal aid for inquests where the state has representation. Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be considering further options for the funding of legal support at inquests where the state has state-funded representation.’
The review has however led to some changes:
- The discretion to waive the requirement for means testing has been increased
- The Legal Aid Agency case worker should factor into any assessment the Coroner’s consideration of Article 2
- In certain circumstances Legal Aid may be awarded retrospectively
- Legal Aid Agency case workers are to consider whether a case involves issues of wide scale systemic failures which may have a wider public interest.
Whilst these are small steps it will mean that Legal Aid funding is available to a slightly wider group of bereaved families than has been the case in the past.