Statutory mental health deaths inquiry is empowered to compel witnesses to give evidence

Readers who follow our series of articles exploring the features of the Public Inquiry system will know that our last piece focused on the wider aims of the system against the backdrop of the Horizon Inquiry following the revelatory tv drama Mr Bates v The Post Office. For this latest article, we’re bringing the spotlight to a lesser known but no less worthy topic: The Lampard Inquiry.

The Lampard Inquiry began its life under a different moniker, The Essex Mental Health Independent Inquiry and was established as a non-statutory Inquiry in 2021 to examine the circumstances of the deaths of 2000 people over a 21-year period whilst either patients on an Essex mental health ward, or within three months of being discharged.

Despite efforts of the previous chair, Dr Geraldine Strathdee, the Inquiry failed to attract witnesses, with only 11 out of 14,000 former or current NHS staff willing to give live evidence. This lack of alacrity from those who are likely best placed to comment on culture and process within the NHS Trust led families of patients to boycott the Inquiry and seek a Judicial Review of the decision to embark upon a non-statutory Inquiry.

The Government took notice, and the Inquiry was re-launched as the Lampard Inquiry on 1 November 2023, chaired by barrister Baroness Lampard with full statutory powers. But what difference do those powers make in reality?

Usually witnesses to a Public Inquiry will be asked to give preliminary evidence by consent following a Rule 9 request under the Inquiry Rules 2006. If at that point the Inquiry deems that further information is required, or that their evidence is sufficiently important, they will be asked to give live oral evidence.

However, when witnesses are reluctant to engage, as has been seen in the Essex Mental Health Independent Inquiry, section 21 of the Inquiries Act 2005 grants powers to the Chair of a statutory inquiry to issue a notice to compel the witness to give evidence. Failure to comply with a section 21 notice compelling the provision of evidence is a criminal offence under section 35 of the Inquiries Act 2005 and, in exceptionally rare circumstances, attendance can be enforced with section 36 conferring powers to apply to the High Court to enforce the notice and arrest and bring the witness before the Inquiry.

Baroness Lampard has been clear from the outset that she has no intention of using these powers to compel family members to give evidence, and stated that “evidence from staff, management and organisations will be gathered in a proportionate, fair and appropriate manner.”

The Terms of Reference for the Lampard Inquiry are, at the time of writing, yet to be finalised, but it is expected that once this milestone is achieved, Rule 9 requests for information will be sent expediently. Being a witness or a core participant to an inquiry can be an emotionally taxing commitment, with stress likely to be significantly exacerbated by a reluctance or refusal to engage.

If you or your organisation has been contacted by a Public Inquiry and would like to speak to someone in our team about how best to respond, please contact Daniel Irving or Francesca Reason.