Last week the Chief Coroner of England and Wales issued new guidance addressing Covid-19 deaths and possible exposure in the workplace.
Reporting a Covid-19 death to the Coroner
The guidance states that the vast majority of deaths from Covid-19 are due to the progression of a naturally occurring disease which means they will not necessarily be referred to the Coroner. Such deaths, however, are designated as notifiable to Public Health England under the Health Protection (Notification) Regulations 2010 and may also sometimes be notifiable to the Health and Safety Executive under RIDDOR where "any person dies as a result of occupational exposure to a biological agent" which includes the virus that causes the Covid-19 disease.
Where the medical practitioner completing the Medical Certificate of Cause of Death suspects that the person’s death was due to an injury or disease attributable to any employment held during the person’s lifetime, under the Regulation 3(1)(a) of the Notification of Deaths Regulations 2019 the death must be reported to the Coroner.
Therefore, in instances where the virus may have been contracted in the workplace setting, such deaths may be reported to the Coroner. This may include frontline NHS workers as well as public transport employees, care home workers, emergency services personnel.
Will the Coroner investigate?
The Guidance further states that if the medical cause of death is Covid-19 and there is no reason to suspect that any culpable human failure contributed to the particular death, the Coroner will not usually be required to open an investigation.
Paragraph 12 of the Guidance provides circumstances where a death, which is believed to be due to Covid-19, may require the Coroner’s investigation and inquest. For instance, if there were reason to suspect that some human failure contributed to the person being infected with the virus, or if some failure of clinical care of the person in their final illness contributed to death, then an investigation and inquest may be required. If the person died in state detention, an inquest would have to take place.
Scope of an investigation
Whilst the Guidance confirms that it is a matter of judgment for the individual Coroner to decide on the scope of each investigation, Coroners are "warned" that an inquest is not the right forum for addressing concerns about high-level Government or public policy. Therefore, an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of personal protective equipment (PPE) to healthcare workers in the country or a part of it.
However, what an inquest could explore is the adequacy of provision of PPE for clinicians in a particular hospital or department. If the Coroner considers that a proper investigation requires such evidence or material to be obtained, he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued. One of the things the Coroner should consider when making that decision is his or her own ability to proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions.
The Chief Coroner reminds his Coroners that when pursuing enquiries with hospitals and clinicians, they should be sensitive to the additional demands upon them during the pandemic period. Although Coroners have a broad discretion to suspend an investigation, they should be mindful that it may be in the best interests of the bereaved family to proceed with the investigation and inquest in a prompt and timely way. Coroners will need to consider the facts and circumstances of each individual case when making their decisions on how to proceed.
It is apparent that the Guidance conflicts itself when dealing with the scope of the investigation. Whilst paragraph 13 confirms that an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for the provision of PPE for healthcare workers, paragraph 14 allows the Coroner to obtain evidence and material in relation to matters of PPE-related policy and resourcing.
In my view it is not sufficiently clear what the individual Coroner should do when he or she is faced with a Covid-19 death and considers that there is an argument that Government policy contributed to it. Whilst some Coroners might choose to interpret the guidance as suggesting an investigation of high-level Government policies, others may see it as a warning to steer away. Given the scale of publicity the PPE topic has recently attracted, there might ultimately be grounds to call for a public inquiry to review the Government’s policies (or lack thereof) and its response to the PPE shortage.
It must be emphasised that this is only guidance and the normal Coronial Statutes of course apply.