The recent Supreme Court decision in Maughan means that all inquest conclusions (including suicide and unlawful killing) should now be decided on the balance of probabilities, rather than the criminal standard of proof which applied previously. Read our insight for more information on the impact of the decision.

 Some cases have emerged of families raising the issue of unlawful killing at inquest, either by way of gross negligence manslaughter by the clinicians involved or corporate manslaughter by the organisation. With the change following Maughan and as an unintended consequence of that decision, it will be necessary to consider the potential for personal criticism and possibly criminal investigation/liability. Inevitably, that will result in more complexity and separate representation for clinicians and organisations at inquests with a potentially significant impact on cost.

Doctors concerns are already coming to the fore regarding their legal exposure to treatment decisions in the pandemic when demand for life-saving treatment is at capacity. A coalition of healthcare organisations has written to the Secretary of State for Health and Social Care requesting immediate legal protection. The BMA has issued guidance which includes the circumstances in which it considers it would be lawful and ethical to refuse potential life-saving treatment. Nevertheless, doctors will remain concerned about facing what are likely to be the most difficult decisions of their professional lives.

Medical Malpractice Forward View 2021 

This article is part of Capsticks’ Medical Malpractice Forward View 2021. 

Read the other articles featured in this publication below: 

• Spotlight on two pending court decisions
• Decision in Maughan may lead not only to an increase in requests for an unlawful killing conclusion at inquest, but have wider consequences
• Resource issues are likely to have a significant role in determining the standard of care in claims arising during the pandemic
• Remote hearings and medical examinations are likely to continue for the foreseeable future
• Safety and learning will remain front and centre in healthcare
• The roll-out of digital healthcare is likely to continue apace
• Artificial Intelligence is likely to assist in the post-Covid recovery of healthcare services, but could be a ‘disrupter’ in healthcare law
• Research and development in life sciences will assume even greater importance as will information governance around the use of apps

Get in touch 

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Philip Hatherall or Georgia Ford.