The Chief Coroner has today released his further guidance to coroners during the COVID-19 pandemic. The Chief Coroner sets out when a report to a coroner must be made and when an inquest will and will not be required into a death from what is a naturally occurring disease.
He also puts a shot across the bows of anyone who thinks that these future inquests will be the right forum for examining high level decisions about the supply and provision of PPE to our front line health care workers and care staff:
An inquest is not the right forum for addressing concerns about high-level government or public policy.
The key points of the Chief’s Guidance are set out below:
1. By no means will all COVID-19 deaths be reported to the Coroner.
The vast majority of deaths from COVID-19 are due to the natural progression of a naturally occurring disease and therefore will not need to be referred to the coroner [paragraph 4]
A COVID-19 death is notifiable under the Health Protection (Notification) Regulations 2010, therefore any such death must be notified to Public Health England. A death may also be notifiable to the Health and Safety Executive. Neither of these notification requirements have any bearing on whether a COVID-19 death is reported to a coroner [paragraph 5].
2. Cases of workplace deaths.
Where the medical practitioner completing Cause of Death suspects that the person’s death was due to an injury or disease attributable to any employment during the person’s lifetime, Regulation 3(1)(a) of the Notification of Deaths Regulations 2019 applies [paragraph 6]. Commonly deaths from mesothelioma after a historical workplace exposure to asbestos have fallen into this category.
Therefore, in cases where the virus may have been contracted in the workplace setting (for example frontline NHS staff, public transport employees, care home workers, emergency services personnel), such deaths “may” be reported to the Coroner [paragraph 7].
Whilst the word “may” is used in the guidance, inevitably if the death is suspected to be connected to the individual’s employment then this must be reported to the coroner under the 2019 Notification Regulations [paragraph 6]. When an individual has worked in one of the above roles it is hard to see how there would not be such a suspicion which would then lead to the necessary reporting to the coroner.
3. COVID-19 deaths that may require an investigation/inquest
As is emphasised on paragraphs 8-9, to require a coronial investigation into a death in the community from a naturally occurring disease there needs to be ‘reason to suspect’ that a culpable human failure contributed to the particular death. Hence it would not be enough to rely upon a general proposition that there is a national shortage of PPE on the NHS front line. The better question is whether there is reason to suspect this particular person was exposed to corona virus at work in the absence of adequate protective measures and/or PPE.
Paragraph 12 of the Guidance provides useful examples of when a death believed to be due to COVID-19 may require a coroner’s investigation. In cases where there is reason to suspect that:
- some human failure contributed to the person being infected with the virus;
- some failure of clinical care of the person in their final illness contributed to death; OR
- the person died in state detention where an inquest would be required.
4.Scope of the inquest in COVID-19 deaths
Whilst the Guidance reminds coroners that the scope of an investigation is for an individual coroner in the context of answering the four statutory questions, it goes on to state “an inquest is not the right forum for addressing concerns about high-level government or public policy”.
Importantly, the Guidance gives the 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 in the country, or part of it [paragraph 13]. However, an inquest could investigate resourcing for a particular hospital or department, see below [paragraph 14].
For practitioners appearing before the courts it is worth remembering that a coroner has a broad discretion to suspend an investigation under paragraph 5 of Schedule 1 to the Coroners and Justice Act. In the event the coroner considers that for a proper investigation into the death evidence is required regarding matters of policy and resourcing particular to an individual hospital or department [paragraph 14], then suspension to obtain such evidence is likely to be necessary. The example given in the Guidance is that a coroner may wish to explore the adequacy of provision of PPE for clinicians [paragraph 14].
In such circumstances, the Guidance sets out a two stage consideration to apply:
- the coroner should consider his or her own ability to pursue necessary enquiries to gather evidence;
- the ability to proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions [paragraph 14].
As per previous Guidance “coroners pursuing enquiries with hospitals and clinicians should be sensitive to the additional demands upon them during this period”.
The Guidance concludes with the useful reminder that where the coroner decides to open an inquest, section 30 of the Coronavirus Act 2020 removes the requirement for an inquest to be held with a jury if the coroner has reason to suspect death was caused by COVID-19 (as per Guidance No. 36).