The Health and Care Brief – ‘PFD Reports’

When will a PFD Report be made?

Paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009 states that the coroner has a statutory obligation to make a PFD report where:

1. The coroner has been investigating a person’s death;
2. Anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and,
3. In the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of future deaths created by such circumstances.

The coroner must report such matters to the person(s) whom the coroner believes may have the power to take the necessary action.

The person receiving the PFD report is then under a duty to provide a written response to the coroner within 56 days from the date the report was sent, setting out the action that has been taken, is proposed to be taken, or, if appropriate, why no action is to be taken.

To ensure public scrutiny, PFD reports and their responses are published centrally and accessible to all on the judiciary website, and can be filtered by subject and/or date.

It is important to note that a PFD report may still be written even where acts or omissions are found not to have been causative (or potentially causative) of the death, nor does it have to relate to a death in similar circumstances.

What is the purpose of a PFD Report?

The previous Chief Coroner, HHJ Thomas Teague KC, stated in his final Annual Report to the Lord Chancellor that “the duty to issue a PFD report is ancillary to the investigation process, so a report will only be made of a risk revealed by the evidence that falls within the scope of the death investigation.”

Despite this, PFD reports are often construed as being punitive in nature, not least because the publication of the PFD reports on the Judiciary website can of course have a serious reputational impact for the recipient.

In addition, a coroner may also wish to share the PFD report with other relevant organisations, such as the Care Quality Commission, which can in turn trigger further enquires or investigations.

Regardless, the making of a PFD report is not intended to be punitive, but simply a means by which a coroner can bring information regarding a public safety concern to the attention of the recipient. The coroner should not make recommendations within the PFD report, but should instead highlight the area of concerns and draw the recipient’s attention to it, as per the Revised Chief Coroner’s Guidance No.5 Reports to Prevent Future Deaths (“Revised Guidance No.5”).

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Can I challenge a PFD Report?

In short, no.

This is the case even if the report has been incorrectly issued (i.e. sent to the wrong person), or there are factual inaccuracies within the report.

It was made clear in the case of R (Dr Siddiqi and Dr Paeprer-Rohricht) v Asst. Coroner for East London [2017] that a coroner has no power to withdraw a PFD report once it is made and that the appropriate remedy for those wishing to take issue with the contents of a PFD report is to simply respond to the report setting out why it is inaccurate. That response will also be published on the Judiciary website. This position was reiterated within the Revised Guidance No.5.

Is it possible to mitigate the risk of obtaining a PFD report?

Yes, but in order to do so, this will require the potential PFD recipient to give consideration as to whether or not there have been any failings in care they provided, and, if so, they will need to provide the coroner with clear evidence of organisational learning since such failings.

There are several ways to do this. For example this may be addressed by way of: a witness statement from somebody within a senior position setting out what actions have been taken addressing the lessons learned since the death; an investigation or review with recommendations to address any identified failings; by completing an action plan setting out actions to be taken; or by combination of all 3.

The Revised Guidance No.5. makes it clear that coroners should focus on the current position and not the position at the time of the death. The coroner should also consider the evidence and information about any relevant changes made since the death or plans to implement such changes. If a potential PFD recipient has already implemented appropriate action to address the risk of future fatalities, the coroner may not need to make a PFD report to that body.

Whether a PFD report is required is a decision for the coroner and will be highly fact sensitive. However, when considering whether such a duty arises, the coroner may take into account the nature of the organisation’s commitment to take action, any evidence in support of this, and the coroner’s assessment of the organisation’s understanding of, and commitment to addressing, the area of concern.

It is imperative therefore, regardless of which method(s) is chosen to evidence organisational learning, that it is made clear whether actions have already been completed and the date of their completion. If actions are still outstanding, then it should be stated when it is expected that those actions will be completed by and steps should be put in place by the organisation or person submitting the evidence to ensure those actions will then be carried out.

A letter instead of a report?

The Revised Guidance No.5. sets out that there may be exceptional circumstances whereby the duty to make a report does not arise, but the coroner nevertheless wishes to draw attention to a matter of concern. The usual reason that no duty to make a PFD report arises is because the matter does not relate to a risk of future death. In these circumstances, the coroner may choose to write a letter expressing the concern to the relevant person or organisation. This differs from a PFD report.

What are the common themes of PFD Reports?

Dr Georgia Richards, a researcher at Oxford University, has created a Preventable Death Tracker project, which aggregates data from PFD reports and produces academic analysis. The tracker also captures the top thirty addressees of PFD reports.

The most common themes of PFD reports are concerns over clinical practice/procedure, resources, training, multi-agency working (communication), monitoring/audits, and policy/guidance. It is also notable that a considerable proportion of PFDs are made in respect of failings in post-death investigations. Care should therefore be taken by organisations completing internal investigations to ensure that the investigation and resulting reports are timely, thorough, and accurate.

How can we help?

If you would like further advice or guidance on inquests or any of the issues highlighted in this article, please do get in touch with Catharine Busby.

Our team have worked with various health and care bodies in both the private and public sectors, including blue light and emergency services, NHS trusts, care homes, prisons, GP practices, private healthcare providers, education providers, charities, independent practitioners, housebuilders, construction and engineering services, manufacturers, retailers and sports clubs.

We also have extensive experience of Article 2, Jury, and multi-agency inquests, as well as criminal negligence and medical manslaughter matters, allowing us to advise on such investigations and attend relevant interviews, including those under caution, with your staff as required.

We understand that these regulatory and legal processes can be incredibly stressful for individuals within your organisation. With this in mind, we see our role as not only being excellent lawyers, but also providing you and your business with comprehensive and practical crisis management services by being proactive, responsive, and supportive throughout.