During our maternity and newborn investigations we collect and create records, which His Majesty's (HM) Coroners may ask us to disclose to assist with their investigations or inquest hearings.
We recognise that we cannot protect information from disclosure where there is a legal compulsion or a court order to disclose information. However, it is the Maternity and Newborn Safety Investigations (MNSI) programme policy not to voluntarily disclose information unless there is evidence of a serious and continuing risk to patient safety or an overriding public interest.
Where a death has occurred and HM Coroner has commissioned a post-mortem examination, MNSI will request a copy of the post-mortem examination report. This provides evidence that may assist our subject matter advisors in understanding the clinical factors involved. We will use the post-mortem examination report for the purposes of the investigation only and we will only disclose the post-mortem report with express permission from HM Coroner.
MNSI does not attribute blame or liability, and our staff do not act as expert witnesses or provide opinions during inquests.
Investigation records
During our investigations, records are collected from third parties, for example medical notes from healthcare providers.
We also generate records during our investigations, through NHS staff interviews, subject matter advisor (SMA) reports and investigation reports.
As part of their investigations, HM Coroners may ask us to disclose these records.
Interviews
We may interview family members, people who have power of attorney, NHS staff engaged in the provision of care and/or any other person that we think is relevant for the purposes of carrying out the investigation.
Under General Data Protection Regulations (GDPR) such personal data must be processed on a valid lawful basis. The interviewees are asked if they consent to be interviewed and whether they allow us to process their personal and confidential data.
Staff engaged in the provision of care are interviewed on the basis that we process their information in the performance of a task carried out in the public interest or in the exercise of official authority vested in MNSI.
Staff are encouraged to speak in confidence with us to allow for a more candid view of events to be shared. On this basis it is far more likely the interview will reveal underlying systemic reasons that lead to patient harm occurring.
Recorded interviews include confidential medical and organisational/corporate information which is considered personal data.
Interviews often describe the provision of care and the relationships between the family and healthcare professional during a given period.
Some interviews may contain the opinions of staff and on occasion these opinions may be critical of the employer or colleagues.
Whilst we do obtain consent of families to be interviewed, this is not our only lawful basis. Interviews with families are also conducted in reliance on the Article 6(1)(e) lawful basis of task carried out in the public interest or in the exercise of official authority (carrying out the functions set out in the Maternity directions). Our Article 9 condition for processing special category data (health information, ethnicity etc) is Article 9(2)(i) for reasons of public interest in ensuring high standards of quality and safety of health care.
Disclosure of information to coroners
Upon receiving a request to disclose information, we review whether it is an informal disclosure request or a formal Schedule 5 disclosure, and determine which records may be disclosed.
Informal request to disclose
These are the records we disclose under an informal request:
- MNSI final report.
This is deliberately limited as wider information disclosure would be highly damaging to achieving candid discussion between MNSI and individuals interviewed in future investigations. This would likely have a serious and direct knock-on effect with NHS trusts and other health organisations and their willingness to cooperate with us.
A Maternity Investigator will inform HM Coroner that we are conducting an investigation and HM Coroner can ask that we share a copy of the report on conclusion of our investigation. Our standard practice is not to share a draft report as these reports follow a factual accuracy process and remain subject to change until the trust and family have reviewed, and the report has been finalised.
Formal request to disclose
These are the records disclosable under a formal Schedule 5 request under the Coroners and Justice Act 2009:
- MNSI draft investigation reports
- NHS staff interviews
- family interviews
- subject matter advisor (SMA) reports
- meeting notes
- terms of reference
- investigation review panel notes
- any other record listed in the appendix of a final report.
As part of any disclosure, we ask HM Coroner to consider the public interest in such disclosure, the purpose of the inquest and the serious and direct knock-on effect this may have on how we work with NHS trusts and other health organisations and their willingness to cooperate with us. This is explained within our Position Statement regarding cooperation with, and disclosure to, HM Coroners.
If HM Coroner, having had due regard to MNSI representations, still requires disclosure, we will comply.
HM Coroner may approach the MNSI information governance team to request a copy of any interviews.
Attendance at an inquest
Any MNSI employee called to give evidence at an inquest will assist the court by substantiating the factual findings of our safety investigation.
They may assist the court to provide an explanation of the material included in our report and a personal statement outlining the role they played. We ask that HM Coroner specify in advance the date and allocation of the inquest and any specific areas in the report they intend to explore, to ensure the correct individual attends.
How to submit a disclosure request
All disclosure requests from HM Coroner should be submitted to IG@mnsi.org.uk quoting the MNSI reference number wherever possible.