Coroner’s Inquests and investigations into Covid-19 deaths in the workplace.
The Chief Coroner has issued guidance to assist coroners during the Covid-19 pandemic. Chief Coroner’s Guidance No.37 deals with Covid-19 deaths and possible exposure in the workplace. It has attracted adverse publicity from some quarters suggesting that families will be denied the opportunity to have the issue of PPE considered in inquests. Other commentators have taken the view that the Chief Coroner has reiterated the law as it currently stands and encourages coroners to leave appropriate issues to public inquiry in due course.
As a starting point the Chief Coroner points out that the vast majority of deaths from Covid-19 are due to the natural progression of a naturally occurring disease and so will not be referred to the coroner.
The Guidance reminds coroners that deaths due to Covid-19 are designated as notifiable under the Health Protection (Notification) Regulations 2010 and therefore notifiable to Public Health England. They may also sometimes be notifiable to the Health and Safety Executive (‘HSE’) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’). Regulation 6(2) of RIDDOR requires a report to be made where “any person dies as a result of occupational exposure to a biological agent”. The expression “biological agent” includes the virus which causes the Covid-19 disease. Consistent with the requirements of RIDDOR, the HSE has published guidance that death as a result of work-related exposure to the virus must be subject to the reporting procedure. This does not automatically mean that the death must be reported to the coroner or that it will be subject to a coroner’s investigation however.
Yet, Regulation 3(1)(a) of the Notification of Deaths Regulations 2019 provides that there must be a report to the coroner if the medical practitioner completing the Medical Certificate of Cause of Death “suspects that the person’s death was due to… (ix) an injury or disease attributable to any employment held during the person’s lifetime.”
There are circumstances therefore in which a Covid-19 death may be reported to the coroner, such as where the virus may have been contracted in the workplace. In the examples provided in the guidance the Chief Coroner refers to frontline NHS staff as well as others (eg public transport employees, care home workers, emergency services personnel).
This has the potential of leading to an increase in the number of reports and inquests. The Chief Coroner has been careful to remind coroners that an inquest is not the right forum for addressing concerns about high-level government or public policy. The Chief Coroner states: “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.”
In accordance with the pre-Covid-19 landscape, the coroner must first consider whether the duty to conduct an investigation under the Coroners and Justice Act 2009 is engaged, i.e. the coroner has reason to suspect:
(a) that the deceased died a violent or unnatural death
(b) that the cause of death is unknown; or
(c) that the deceased died while in state detention.
A death may be “unnatural” if it has resulted from the effects of a naturally occurring condition or disease process but where human error contributed to death. Therefore, if there were reason to suspect that some human failure contributed to the person being infected with the virus, an investigation and inquest may be required. Failures of precautions in a particular workplace will fall to be considered in respect of causation and contribution to death.
In the usual way, it is a matter of judgment for the individual coroner to decide on the scope of each investigation. The scope of the investigation must still be considered in the context of answering the four statutory questions:
- Who the deceased was
- Where the deceased died
- When the deceased died
- How the deceased died
Coroners make judicial decisions on a case by case basis and have a wide judicial discretion in relation to many aspects of their investigations and inquests.
It can be seen even now that PPE supply issues will be complex and public and private workplaces may be treated differently in respect of Article 2 considerations. Where there are inquests there will be an opportunity to consider use of Regulation 28 powers1 and the issue of a Prevention of Future Death report.
It remains to be seen whether the guidance is judicially challenged, as has been indicated that it may be. In the meantime, we can expect coroners to approach their investigations and inquests on the basis of a practical analysis of individual facts and circumstances rather than consideration of general public policies which affect frontline healthcare workers and care staff.
- It seems likely that a Covid-19 workplace death will attract scrutiny of supply of adequate PPE to frontline healthcare workers and care staff. It will be important to document what efforts have been made to obtain supplies and to record systems and processes implemented in response to the pandemic.
- Difficulties experienced at both local and national level should be recorded
- Evidence of risk assessments should be readily available
- Ensure that current guidance is followed and document when and how that is applied
1 Coroners and Justice Act 2009 Paragraph 7, Schedule 5, and Regulations 28 and 29 of the Coroners (Investigations) Regulations 2013
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.