The Chief Coroner for England and Wales issued further guidance on 28 April 2020 in the form of guidance sheet number 37 addressing COVID-19 deaths and possible exposure in the workplace. This will be of significance to those involved in inquests or investigations relating to COVID-19 deaths.
He confirms that the vast majority of deaths from COVID-19 arise from the natural progression of this naturally occurring disease and therefore will not be referred to the coroner. He reminds his coroners of the Ministry of Justice guidance on the Notification of Deaths Regulations 2019 which confirms that a death is to be typically considered unnatural if it has not resulted entirely from a naturally occurring disease process, importantly it goes on, where nothing else is implicated.
A COVID-19 death is designated as notifiable under the Health Protection (Notification) Regulations 2010 which means that any death resulting from the disease must be notified to Public Health England. This of course does not impact on whether a death should be reported to the coroner or would be the subject of a coroner’s investigation.
In paragraph 7 of the guidance the Chief Coroner confirms that there may be some instances in which a COVID-19 death may be reported to the coroner, for example where the virus may have been contracted in the workplace. This would apply to those working for health and care providers.
The Chief Coroner advises his coroners that they must first consider whether the statutory duty in relation to conducting an investigation is engaged.
If the medical cause of death is deemed to be COVID-19 and there is no reason to suspect that any culpable human failure contributed, then there will usually be no requirement for an investigation to be opened. Pre-investigation enquiries may however be considered to be reasonable.
If the duty is not engaged then the registrar will be notified but this decision can be revisited; for example where further information is provided about the death.
It is confirmed in the guidance that it is a matter for the coroner’s judgment in each case as to whether the facts and evidence provide a reason to suspect that the death was unnatural.
Clarification is provided on the circumstances in which an investigation and inquest may be required such as where there is a suspicion that a human failure contributed to the person being infected. In these circumstances where an investigation is opened then the coroner may need to consider whether there was a failure to take precautions in a particular workplace which caused the deceased to contract a virus and in turn which contributed to death. Similarly, if there was some reason to suspect that there was a failure of clinical care, there would need to be an inquest to consider the care that had been provided.
In accordance with previous guidance, where the person died either in prison or a secure mental health ward, an inquest does have to take place.
The Chief Coroner reminds his coroners that when pursuing enquiries with hospitals and clinicians they should be sensitive to the additional demands on the NHS frontline during this period. He goes on to remind coroners that 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 the death was caused by COVID-19.
The Chief Coroner has commented that an inquest is not the right forum for addressing concerns about high level government or public policy. He goes on to clarify that an inquest would not be a satisfactory means of deciding whether general policies and arrangements were in place for the provision of personal protective equipment. It remains to be seen whether there will be inquests, however, which focus on whether the personal protective equipment that was provided was adequate.
Despite the warning given regarding inquests not being a forum for considering the adequacy of general policies and arrangements, it is confirmed that such investigations may relate to the adequacy of provision of PPE for clinicians in a particular hospital or department. Evidence of local policies and arrangements for the provision of PPE may therefore be called for through a coroner’s investigation.
The latest guidance from the Chief Coroner is of assistance in clarifying the nature of any COVID-19 inquests that may proceed to a hearing. This issue of personal protective equipment is receiving much publicity at present and it is clear that the government’s response to the COVID-19 crisis in relation to the provision of PPE should not be subject of enquiries in the inquisitorial process. This, it seems, could however be an issue approached through questioning of the adequacy of PPE provided in any particular Trust or care provider.
This further guidance from the Chief Coroner is of course to be welcomed given its broad reach across the health and care sector.
Clare Chapman, Partner, BLM