The Chief Coroner’s Guidance on COVID-19
The Chief Coroner’s Guidance on COVID-19 (No.34) was issued on 26 March 2020 and reinforced on 27 March 2020 with further guidance (No.35). It is helpful to be read in conjunction with the Chief Coroner’s COVID-19 Note #3. It is intended to be the main piece of guidance for all coroners.
The message overall is that coroners have discretion and judgement to exercise in various respects, which they can be expected to exercise in a pragmatic way taking account of the effects of the pandemic.
However, it also makes clear that a Coroner’s Court should be open for “urgent and essential business only” and further, “absent a coroner a court is not a court”.
The reinforcement of this latter aspect tends to suggest approaches have been made to the Chief Coroner, following his Guidance No.34, questioning the need for a coroner to be physically present in a Coroner’s Court in order to conduct a hearing.
The response is a clear and unequivocal… yes.
The Coronavirus Act 2020 (CA 2020) received Royal Assent on 25 March 2020 and the commencement regulations came in on 26 March 2020 . The key sections for practitioners are: section 18 and schedule 13 (registration of deaths and still births etc.), section 30 (inquests) and section 55 (public participation in proceedings conducted by video or audio).
Key points relevant to Inquest hearings:
- Safety is paramount and social distancing in accordance with PHE guidelines must be in place at all times and at all places within the court building;
- No physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place;
- Remote hearings can take place but to protect the principles of open justice and public hearings coroners should conduct telephone hearings from a court, not their homes or their office;
- Coroners retain their own judicial discretion as to whether an individual case can proceed;
- Death reporting is a priority and inquests may therefore need to be adjourned for resource reasons, as consideration should be given to prioritising judicial and staff resources towards decision-making on reported deaths;
- Due recognition must be given to the primary clinical commitments of medical staff involved in the fight against C19 and pathologist in terms of evidence, reports and PFD responses, but no blanket approaches.
- Section 30 of the CA 2020 suspends the requirement for a jury in an inquest where C19 is suspected. The section applies to an inquest that is opened on or after 25 March 2020 (and potentially not before) regardless of the date death.
Key points relating to C19 as a cause of death meriting investigation:
- C19 is an acceptable direct or underlying natural cause of death for an MCCD. The aim of the system should be that every C19 death which does not in law require referral to the coroner should be dealt with via the MCCD process;
- CA 2020 has made amendments to death certification to help manage the challenges in the community anticipated for C19 deaths and expand the circumstances where a doctor will be able to sign a MCCD. The MCCD window is extended to 28 days (from the previous 14) and a doctor who was not the attending doctor is able to sign the MCCD (see: s8 and Sch 13 of the CA 2020);
- Notifiable and reportable are not the same. The fact that C19 is a notifiable disease (notifiable to PHE by virtue of the Health Protection (Notification Regulations 2010) does not mean it is also reportable to a coroner. Many, if not most, cases of C19 deaths with of course be attributable to natural causes;
- C19 is a naturally occurring disease, the test as to the duty to investigate under s1 CJA 2009 still applies. A coroner who is notified of a death due to suspected C19 but cannot establish the position satisfactorily and/or cannot arrange a post-mortem examination in a reasonable time may need to proceed to inquest.
Key points relating to PMs
- The C19 emergency may mean that routine PMs will not be possible. This could be because of infection control measures (not possible to rule out the presence of C19 in the body) or due to the capacity of pathologists, mortuary and body storage being very limited in the pandemic.
- Coroners may need to have greater recourse to CT scanning (if available) or ‘view’ PMs (if appropriate). A ‘view’ autopsy involves a pathologist simply viewing the body and determining a cause of death. Such autopsies can be appropriate in some self-inflicted, rail or road traffic deaths for example.
Key points relating to deaths in prison or otherwise in state detention
- It remains important that deaths in custody or otherwise in state detention are scrutinised carefully. Such deaths which are not by natural causes should be given as much attention and resource as is available.
It is interesting to note that the guidance in the coronial jurisdiction on remote hearings is potentially more restrictive than that issued out of the civil jurisdiction as the former requires a coroner to be present in court. The guidance out of the civil jurisdiction approaches the principle of open justice / public hearings slightly differently (§8 and 9) and suggests that the principle of open justice can be achieved in a number of ways: one person (not just the judge) relaying the audio or video to an open court room, allowing accredited journalists to log in to the remote hearing or permitting live streaming of the hearing over the internet.
The reason given by the Chief Coroner for this distinction is that civil hearings are governed by the Civil Procedure Rules which have a greater flexibility as to who is present and these Rules are not emergency legislation.