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COVID-19 Deaths and PPE – The Coroner’s Role

Legal Update by Tariq Sadiq

Introduction

Inevitably the COVID-19 pandemic will result in a significant increase in the workload of coroners and the number of inquests being heard. Cases where the virus may have been contracted in the workplace setting including frontline workers because of the lack of personal protective equipment (PPE) may be one significant area of potential inquiry.

The Chief Coroner's Guidance No.37: COVID-19 Deaths and Possible Exposure in the Workplace – read here, provides important guidance to coroners regarding the correct approach to take. It addresses the issue whether such a death should be reported to a coroner and the proper scope of the coroner's investigation.

References in square brackets are to the paragraph numbers in the Guidance.

Reporting deaths to the coroner

The Chief Coroner has reiterated in the Guidance that the vast majority of deaths from COVID-19 are due to the natural progression of a naturally occurring disease and so would not be referred to the coroner. They must however be notified to Public Health England under the Health Protection (Notification) Regulations 2010 and may also be notifiable to the Health and Safety Executive (HSE).

There are however some instances in which a COVID-19 death may be reported to the coroner, such as where the virus may have been contracted in the workplace setting. This may include frontline NHS staff as well as others (e.g. public transport employees, care home workers, emergency services personnel) – [4].

Although the term ‘may’ is used in the Guidance, where a registered medical practitioner suspects that the death was due to one of the various circumstances set out in the Notification of Death Regulations 2009, the death must be reported to the coroner. They include suspected deaths due to: 

  • Neglect
  • The person was undergoing a treatment or procedure of a medical or similar nature
  • A disease attributable to any employment held by that person
  • Deaths in custody or state detention 

Deaths that may require an investigation 

If the medical cause of death is COVID-19 and there is reason to suspect that any culpable human failure contributed to the particular death this may require a coroner's investigation. At [12] the Guidance provides the following examples where there is a 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
  • the person died in state detention (e.g. in prison or secure mental health ward). 

The scope of the coroner’s investigation 

Whilst noting that it is a matter of judgment for the individual coroner to decide on the scope of each investigation in the context of providing evidence to answer the four statutory questions, at [13] the Guidance states that: 

“Coroners are reminded that an inquest is not the right forum for a addressing concerns about high level government or public policy… 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 part of it.” 

In doing so, the Chief Coroner highlighted 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, following cases such as R (Smith) v Oxfordshire Asst. Deputy Coroner [2011] AC 1 which concerned the sufficiency of army equipment. 

Where the coroner considers that a proper investigation into the death requires evidence or material be obtained in relation to matters of policy and resourcing (e.g. the adequacy of provision of PPE for clinicians in a particular hospital or department), then the coroner may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued – [14] [my underlining]. In making this decision, the coroner should consider his or her own ability: 

  • To pursue necessary enquiries to gather evidence, and
  • To proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions. 

In this respect, coroners are reminded of the previous Guidance that pursuing enquiries with hospitals and clinicians should be sensitive to the additional demands upon them during this period. 

Implications 

Practitioners and bereaved families are concerned that the Guidance will limit the scope of coronial investigations into the impact of the PPE shortage on frontline staff that have died of COVID-19. They legitimately ask whether failures in the provision of PPE played a part in the deaths of their loved ones. In the absence of a public enquiry, an inquest plays a vital role in identifying systemic failures in the protection of frontline workers. The Guidance may be the subject of judicial review proceedings by lawyers acting for the bereaved families. 

When stating that an inquest is not the right forum for addressing concerns about high-level government or public policy, the Chief Coroner referred to cases including R (Smith) v Oxfordshire Asst. Deputy Coroner. In that case Lord Phillips observed that an inquest could properly consider whether soldier had died because a flak jacket had been pierced by a snipers bullet, but would not be a satisfactory tribunal for investigating whether more effective flak jackets could and should have been supplied by the Ministry of Defence. However: 

  • In 2006 a coroner did properly consider whether a tank commander who died in Iraq was not supplied with enhanced body armour and concluded that the lack of appropriate basic equipment was “inexcusable” – see BBC News, 31 July 2006.
  • The inquest into the death of Ella Kissi-Debrah which is due to take place later this year will consider wider public health issues i.e. air pollution.
  • When it comes to Article 2 of the ECHR and the obligation on the state to carry out an effective investigation, the acts or omissions of authorities responsible for health care policy may engage Article 2.  As Lord Bingham observed in R (Amin) v  Secretary of State for the Home Department [2004] 1 AC 653 “a properly conducted inquest can discharge the state’s investigative obligation”. 

The Guidance confirms that an investigation into a COVID-19 death may need to take place where there is a reason to suspect that a culpable human failure contributed to the particular death. Therefore, it is not enough to rely upon the general or national shortage of PPE. The more nuanced question is whether there is reason to suspect that the particular individual was exposed to the coronavirus as a result of the shortage of PPE at a particular hospital and/or place of work. 

There are calls for a public enquiry into aspects of the COVID-19 pandemic. The reference in the Guidance to the coroner suspending the investigation “until it becomes clear how such enquiries can best be pursued” may indicate that as far as the Chief Coroner is concerned, a public enquiry is the most suitable way of addressing the issue of PPE provision. Indeed, the sheer number of inquests could make a public enquiry a more practical means of dealing with this important issue. 

Tariq Sadiq 

Tariq is a member of the Inquests Sub-Group at Parklane Plowden. He is also a member of the Attorney General’s Regional A Panel of Counsel, the Welsh Government A Panel and the Equality and Human Rights Commission A Panel and acts in a wide range of inquests and public inquiries.

 

 

 

 

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