'Anything that causes some good and prevents deaths should be taken more seriously'

For many, they are relieved that recommendations have been made — and they don’t imagine that those recommendations will never become a reality because they are not enforceable by law.

Portlaoise parents Claire and Keith Cullen’s son, Aaron Ben, died on May 9, 2016, at Dublin’s Coombe Hospital, having been born five days previously at the Midland Regional Hospital in Portlaoise.

Their case against the HSE for mental distress as a result of the death of their son was settled in the High Court in 2020.

At an inquest into his death in March 2019, the coroner, Dr Myra Cullinane, said she endorsed recommendations arising out of reports into the incident, including continued training for medical staff.

Ms Cullen says: “One would assume that the findings, through the only legal body investigating cause of death in adverse circumstances, would be deemed as the utmost of importance. Why is it not in legislation or a priority, implemented by government and our health system?”

She asks how the human rights of families such as her own can be “discarded so easily”.

She adds: “This should be [given] the utmost of priorities in implementing change towards safer healthcare in implementing recommendations.

“The HSE state that, without learning from shared experience, change cannot be implemented. Yet, here we are with an investigative body, the most important investigation in finding a cause of death. And these shared experiences, learning, findings, and recommendations are deemed irrelevant in the necessity for mandatory implementation.”

According to a spokeswoman for the HSE, all recommendations that it receives from individual coroners, at either local or national level, are given due consideration in the context of local implications and/or the wider healthcare changes that may be required or have been introduced in the intervening years since the person’s death.

Barrister: 'Moral weight to recommendations'

Barrister Doireann O’Mahony has recently co-authored a book, Medical Inquests, with fellow lawyers Roger Murray and David O’Malley.

She says that Section 19 of the Coroners (Amendment) Act 2019 adapted Section 31 of the 1962 act to allow for recommendations of a general nature to be made at inquests to prevent further fatalities.

However, she says experience has led her to believe there is an issue in relation to the enforcement of recommendations, with families left disappointed at the lack of follow through afterwards.

“There is certainly a moral weight to recommendations, especially when they are widely publicised, but at present there is no imperative for the agencies or entities contacted to follow through or report back, and this is just not good enough,” she says.

A spokesman for the Department of Justice said that recommendations made at inquests by a coroner or jury, with the aim “of preventing further fatalities or on the basis of public health or safety”, are addressed to the relevant authorities.

“The implementation of any recommendations and follow-up actions is a matter for the relevant authority,” he says.

The coroners acts, as amended, do not impose a statutory duty in respect of such recommendations made at an inquest. 

There have been examples where recommendations made at inquests have been followed through. For example, in 2019 Cork City coroner Philip Comyn recommended that Cork City Council should conduct a full review of the Blackrock Road junction with Park Avenue. He also urged local authorities to review road infrastructure at the site of fatal road traffic incidents on non-national roads in their jurisdiction.

This followed the death of pedestrian Dan O’Connor after he was involved in an incident with a taxi while on the pedestrian crossing on the Blackrock Road, outside Ballintemple Post Office.

A spokeswoman for Cork City Council said the junction was put forward by the local authority for a road safety improvement grant from the Department of Transport. She adds: 

Funding was secured to update the junction to a fully signalised junction, which was constructed in 2021. 

Similarly, at the 2020 inquest into the death of Brian Bacon on the N5 near Swinford in Mayo, coroner Pat O’Connor asked that Transport Infrastructure Ireland (TII), Mayo County Council, and An Garda Síochána carry out “a full and detailed” survey of the area.

He said there had been too many fatalities on the route in the previous 20 years.

A spokeswoman for Mayo County Council told the Irish Examiner: “Mayo County Council, with the support of TII, procured consultants to undertake a safety assessment of the N5 Swinford by-pass. A junctions safety assessment report was completed in September 2020. Recommendations in the report are currently being progressed by Mayo County Council.”

However, given that there is no legal imperative on bodies to act on recommendations, Ms O’Mahony believes that Ireland should look to the UK for guidance around this area.

Under the Coroners and Justice Act 2009 and regulations 28 and 29 of the Coroners (Investigations) Regulations 2013 in the UK, a coroner is required to make a report to any agency or institution that they believe has the power to take remedial action to prevent similar deaths, if they believe such deaths could occur without such action.

The document is called a ‘Prevention of Future Death Report’ and must be sent to the entity in question within 10 working days of an inquest’s conclusion. The recipient then has 56 days to provide a written response.

Ms O’Mahony elaborates: “Coroners in the UK have a statutory duty [rather than simply a power] where appropriate to report about deaths with a view to preventing future deaths.

Crucially, the legislation in the UK stipulates that the person or entity to whom the report is addressed is under a duty to respond within a specified timeframe and the response must contain details of the action taken or proposed to be taken, and setting out the timescale for the action.

“The report is also sent to the chief coroner and the coroner may publish either the report and/or the response. I would go so far as to say that it should be made an offence for an individual not to respond adequately.”

According to Ms O’Mahony, bereaved families want to be able to say after a tragedy in which their loved one lost their life that someone else is unlikely to die in the same manner because lessons will have been learned and changes made.

“This is where the recommendations are so vitally important,” she says.

She points out that, in some cases, inquests can draw up trauma again for bereaved families, with some feeling that their dead loved one is being put on trial — particularly in cases where medical negligence has had a bearing in the death.

She says that, while an inquest verdict is rarely of any comfort to a family, any recommendations that are made are of comfort if there is an assurance that they will be implemented in full and without delay. She adds: 

Without that assurance, I think it is understandable that some families walk away from the Coroner’s Court wondering, ‘What was the point of all that?' 

“We owe it to those who have to go through the extremely difficult process of an inquest into the sudden and unexplained death of a loved one that one glimmer of hope it can offer... – and that is the prospect of important changes that can be brought about through the recommendations. But unless the recommendations are effectively implemented, they are meaningless.”

Last April, a report commissioned by the Irish Council for Civil Liberties (ICCL) on the coronial system in Ireland, was published. The document, ‘Left Out in the Cold’, highlights the need for reform of the coronial system, including around the recommendations made at inquests.

The report notes: “Families’ lawyers were concerned that critical verdicts, accompanied by recommendations for changes in institutional policies and/or practices, were not reviewed to establish their efficacy.”

It recommended that the failure to follow up on recommendations made at inquests for reform in policy and practice of various bodies must be addressed.

“Inquest recommendations are made with the intention of preventing recurrence of death in similar circumstances,” it notes.

One family, whose loved one died in hospital, was quoted in the report as saying: “If recommendations are enforced that would help go a long way to prevent similar things happening.”

The report also references a case in which suicide was the verdict, noting: “While the coroner made four significant recommendations, the family were aggrieved that institutional reforms did not follow.”

A solicitor interviewed for the report stated that recommendations “are not legally binding, they are just recommendations. They are usually just a soundbite for the media and nothing else.”

The report says that the follow up to ensure recommendations are enacted remains deficient, adding that it leaves bereaved families and their legal representatives concerned that lessons arising from inquests are not learned.

ICCL executive director Liam Herrick said that the responsibility for reform lies with the Government and he said that Helen McEntee, the justice minister, had expressed an interest in the issue of coronial reform.

However, he said that a comprehensive report from the Coroners Review Group in 2000 had still not been implemented in full.

Dubliner Neil Fox, whose sister Donna died while cycling to work in the capital in 2016, was among those who contributed to the report.

At Donna’s inquest, recommendations were made in relation to introducing more traffic lights at the junction where the incident occurred to allow cyclists to cross the junction safely.

“There is a hope when a jury comes out with recommendations but when you realise that they are only words…. They are well-meant and I imagine juries spend quite a while coming up with them but are they worth the piece of paper they are written on? It is hard to know,” Mr Fox says.

He says the publication of the ‘Left Out in the Cold’ report last April went under the radar because of the Covid-19 pandemic but he hoped that the recommendations could be implemented.

In relation to recommendations made at inquests, he adds: “Anything that causes some good and prevents deaths should be taken more seriously.

“Recommendations are meant to be persuasive rather than legally binding. But at the same time, are they being given enough breathing ground to be more persuasive?”