Original article by Harriet Bland can be found at The Justice Gap website.

Half of NHS mental health trusts in England spent over £4 million funding their own legal representation at inquests in 2017-18, according to an investigation by charity Julie’s Mental Health Foundation and INQUEST. This was 34 times the total amount granted in legal aid to families of the deceased for their representation in inquests involving mental health trusts, which was just £118,000. Of the approximately 600 requests for legal aid for inquests last year, almost 50% were refused.

‘The government says that inquests are non-adversarial, so families don’t need legal representation,’ commented Dr Rebecca Montacute, founder of Julie’s Mental Health Foundation. ‘But that is not the experience of families, who can be faced by several different legal teams when they themselves have nothing. It’s a ridiculous system which isn’t fit for purpose.’ Rebecca’s mother, Julie, died of a suspected suicide in 2018 after several weeks of seeking and being denied help from her local NHS trust, the Avon and Wiltshire Mental Health Partnership NHS Trust.

Rebecca was not given access to legal aid, and was left to struggle through the inquest process herself. Thanks to a lawyer friend she was able to find someone willing to represent her at a reduced rate, but this still came to several thousand pounds of advice, something many people could not afford. However, Rebecca didn’t have enough money to pay for her lawyer to attend all the hearings as they normally would. As she told BBC Radio 4’s File on 4 programme: ‘Finally, a few months after mum’s death, I stood up in court. For two preliminary hearings I couldn’t afford for my lawyer to be present, so I had to represent my mum myself. Speaking in front of the coroner, the lawyers, and my own family was honestly the most terrifying thing I’ve ever done, and I was desperate to do it well, to do my mum justice.’

This is a problem which effects not just deaths involving mental health trusts, but also deaths in police and prison custody and those involving individuals released on probation. As INQUEST revealed earlier this year, in 2017 the Ministry of Justice spent £4.2 million on legal representation for the prison and probation service. The amount allowed in legal aid to bereaved families in the same period was a mere £92,000. This means many more families like Rebecca’s are being left with little or no funding for legal representation.

Inquests are intended to be a non-adversarial investigation into how a particular death occurred. In practice, however, the state bodies involved, such as the relevant prison, NHS trust or police force, are alive to the risk of being held liable for the death. They are keen to avoid adverse publicity and having to pay compensation to bereaved families. The outcome of an inquest, which can be highly critical of the institutions’ role in the person’s death, can have serious implications for truly adversarial legal proceedings afterwards. An inquest finding that criticises the state bodies involved significantly strengthens civil claims for compensation. Costly legal representation enables these public bodies to present their case in a way which reduces their risk of being held liable, for example by cross-examination of witnesses to diminish the credibility of the evidence against the state body, or by arguing for particular evidence to be included or excluded from the proceedings on the grounds of its relevance to the death.

This means that grieving families attending inquests without legal representation face the risk of having to engage in complex legal arguments or cross-examine witnesses who may have been involved in the death of their family member. Rebecca Montacute described spending ‘weeks preparing, reading through the pile of medical notes and notes from the mental health trust’s own investigation – which the coroner had sent me – to try to figure out what I needed to say and what questions needed to be asked’.

For families who, due to constraints of time and skills, are not able to do this, they risk the inquest not seriously interrogating the role of the state bodies in their relative’s death, and may jeopardise their ability to seek compensation successfully in a civil claim after the inquest is over.

As Deborah Coles, Executive Director of INQUEST, commented in her oral evidence to the Joint Committee on Human Rights in 2018, the inquest process is ‘what families have been given to find out what happened to their loved one. They do not choose to initiate it; the state initiates it for them to find out. That is the process that they have to go to. The inequality of arms is the single greatest obstacle to families trying to get those answers’.

JUSTICE, which partnered with Rebecca Montacute in her investigation of this issue, has launched a campaign arguing for two things: automatic, non means-tested legal aid funding to families immediately following any state related death; and that this funding should be equivalent to that allowed for public authorities and corporate bodies that are represented in the same proceedings. This is not a new campaign: in 2017, Dame Elish Angiolini chaired a review on deaths and serious incidents in police custody.

In her final report, she stated: ‘For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not “empty and rhetorical”. There should be access for the immediate family to free, non means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.’

Despite calls for change, the current position remains as it was in February 2019, when the Ministry of Justice published its review into legal aid funding for inquests, stating that it would not introduce non means-tested funding. It remains to be seen whether these revelations of the scale of the inequality of resources between grieving families and state bodies will cause the Ministry of Justice to change its approach.