The Ministry of Justice (MoJ) has recently issued guidance for bereaved families who are preparing and/or attending an inquest into the death of a family member.
The guidance provides a summary of what an inquest is, and what someone attending it can expect, and seeks to help a person ascertain whether they will need legal advice or representation, and if so, how to access funding for it.
Below, we have provided a summary of the guidance.
What is an inquest and when is it needed?
Where a loved one has died and the cause is unclear or there is reason to suspect something other than natural causes, getting answers is vital to helping those left behind to find closure and be able to properly grieve their loss.
A Coroner, who is appointed by a local authority, will investigate a death that has been reported to them if there is reason to think that:
- The death was unnatural or violent;
- The cause of death is unknown; or
- The person died while in prison, in police custody, or in another type of detention.
Coroners are independent judicial office holders who decide how they conduct their investigation, which may include an inquest. They work within a framework of law, passed by Parliament.
An inquest is the Coroner’s investigation and is the process by which the Coroner seeks to establish:
- Who has died;
- When they died;
- Where they died; and
- How they came by their death.
It is a public Court hearing held by the Coroner and may take place with a jury, depending on the circumstances of the death.
The inquest does not involve prosecution and defence. Instead, the purpose of an inquest and the Coroner’s role is to discover the facts of the death.
Legal representation in preparation and during an inquest
If someone is a close family member of a deceased person they are deemed an “interested person” which gives them certain rights, which include “receiving evidence and asking witnesses relevant questions at any hearing”.
As outlined in the guidance, legal representation during an inquest is not mandatory. However, even if the circumstances that led up to the death are straightforward a bereaved family member may still feel that they would like a solicitor to represent them.
Regardless of whether legal representation is obtained, an interested person is able to ask any relevant questions that they might have at an inquest. They are also able to share what they know about the circumstances leading up to the death.
Access to legal aid for legal representation at inquests
Legal Help
Legal Help, which is funded by the Legal Aid Agency, can fund legal advice in preparation for an inquest, e.g. preparing witness statements or submissions to the Court setting out the family’s concerns.
Eligibility is determined by the Legal Aid Agency, based on applying regulations and formal guidance.
Exceptional Case Funding
Where someone wants to have legal representation at an inquest, they may be entitled to legal aid funding for legal representation, in certain circumstances, which are:
- There is an ‘Article 2’ type inquest (i.e. there is a duty to hold an investigation into whether the State has arguably breached its obligations under Article 2 of the European Convention on Human Rights, namely the ‘right to life’); or
- There is a ‘wider public interest’ in relation to both the applicant and the inquest. Basically, this requires the applicant to show that providing advocacy services for them during the inquest is likely to produce significant benefits for a class of people other than them and their families.
If one of these circumstances could apply, a person can make an application for Exceptional Case Funding. If this application is successful then the interested person will be granted legal aid for representation. This is regardless of their financial status.
Additionally, if the person’s application for Exceptional Case Funding is accepted, and they’re not already in receipt of Legal Help, then they will also likely be permitted to receive Legal Help.
Further information on Exceptional Case Funding can be found here.
Comment
Whilst the guidance provides a useful overview, it could still be difficult for family members to work out whether they might qualify for Legal Help and/or Exceptional Case Funding, as discussed in one of our previous blogs.
At Nelsons our medical negligence solicitors are able to advise, and potentially represent, bereaved families who are applying for legal aid in appropriate circumstances.
However, where this is not available there will be other options to consider, such as whether work might be done under a ‘no win no fee’ agreement (where there is a related medical negligence claim) and/or discussing a private or capped fee arrangement.
How can we help
Lucy Wilton is a Partner in our expert Medical Negligence team, specialising in inquests and compensation claims.
If you have any questions in relation to the topics discussed in this article, please contact Lucy or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.