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Chief Coroner’s Guidance No. 37 - "COVID-19 Deaths and Possible Exposure in the Workplace "  amended on 1st July (here)

It is not often that guidance from the Chief Coroner excites the twittersphere.  But the original version of this Guidance #37, issued on 28 April (see our earlier blog here), managed to generate much comment from the public, Doctor’s Associations (here) and even MPs regarding the approach to considering shortcomings in the provision of PPE. The Chief Coroner puts out guidance, he does not make statements of policy. Some seem to have even misunderstood his guidance to be advocating that healthcare workers’ deaths should not be referred to a coroner.[1]. Nevertheless, many commentators will feel vindicated in that the Chief Coroner has now updated his earlier Guidance which now focuses more on the individual judicial discretion of each coroner.

Much remains the same, but the focus has now moved perceptibly to emphasise the discretion of individual coroners. In the previous version the Chief Coroner gave specific guidance that an inquest would not be the right forum to decide whether adequate general policies and arrangements were in place for provision of personal protective equipment (PPE) to healthcare workers.  The revised guidance signals a relaxation of that previous guidance in that it emphasises the discretion of an individual coroner in individual cases.

The first version of guidance #37 stated that:

The higher courts have repeatedly commented that a coroner’s inquest is not usually the right forum for such issues of general policy to be resolved: see Scholes v SSHD [2006] HRLR 44 at [69]; R (Smith) v Oxfordshire Asst. Deputy Coroner [2011] 1 AC 1 at [81].

By the same reasoning, 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.

This language has been scaled back as it is phrased that there have been a “number of indications” that a coroner’s inquest is not usually the right forum for addressing concerns about high level or government policy.  The revised guidance highlights that such issues may be causally remote from the death.  The revised guidance specifically states “it is repeated that the scope of inquiry is a matter for the judgment of coroners, not for hard and fast rules”:  this was not a caveat previously included.

Is there reason to suspect capable human failure ?

Guidance #37 affirms the previous guidance - 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, there will usually be no requirement for a coronial investigation to be opened [§10].  

This Guidance repeats the clarification of Chief Coroner’s Guidance #33 in the first version of Guidance #37, that if a Coroner has carried out pre-investigation enquiries and made an initial decision not to open an investigation, this decision can be reconsidered without recourse to the Chief Coroner. 

It remains the case that if a coroner decides to open an investigation, then he or she may need to consider whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to death.  Also, if there were reason to suspect that some failure of clinical care of the person in their final illness contributed to death, it may be necessary to hold an inquest and consider the clinical care. If the person died in state detention (e.g. in prison or secure mental health ward), an inquest would have to take place [§13]. Both versions of the Guidance recognise that an inquest can investigate resourcing for a particular hospital or department.  

It continues to be the case that if a proper investigation into the death  that requires evidence or material be obtained in relation to matters of policy and resourcing such as the adequacy of provision of PPE for clinicians in a particular hospital or department), the coroner can choose to suspend the investigation until it becomes clear how such enquiries can best be pursued [§18].

Of course, with the coroners courts up and down the country only very slowly getting back to business and only just able re-open their doors for inquests this month, it is perhaps unlikely that any inquest that investigates the death of an NHS worker from COVID-19 will actually be held before the government is forced to make its own  decision as to whether the PPE fiasco at the start of the pandemic is to be the subject of a public inquiry.

 

 

 

[1] Although the original made clear that where “culpable human failure” contributed to a death there may be a requirement to open a coronial investigation.