New process to investigate Covid-19 deaths among health and care workers
Data from the ONS reveals the high levels of deaths from Covid-19 among health and social care workers. Of these it has been reported that social care workers form the majority of deaths from coronavirus.
The government’s response to the crisis and particularly in regard to equipping those on the front line with effective PPE and access to testing has been widely criticised.
The true impact of its efforts or failures to source, supply and distribute PPE, the application of risk-based strategies in respect of the use of PPE, testing and the issue of conflicting guidance remains to be seen.
Exposure of health and social care workers to unjustifiable risk is not a matter that government will admit to readily. Unless and until there are independent investigations into their deaths, we may not know whether the circumstances of their employment were responsible for the tragedy of their loss of life during the pandemic.
The Chief Coroner has issued guidance in relation to Covid-19 workplace deaths – read about this in our briefing.
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) requires notification of various deaths accidents injuries and occupational diseases to the Health and Safety Executive (‘HSE’) within 10 days.
HSE can take legal action if an appropriate case is not reported to it and there is the potential for an unlimited fine or even a custodial sentence in serious cases.
Guidance issued by HSE in early April as to the reporting of deaths caused by coronavirus confirms that a report should be made when:
- an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence
- a person at work (a worker) has been diagnosed as having Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease
- a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent
Confirmation of the likely cause of death by a registered medical practitioner is required.
In practice even in health and social care settings this has likely resulted in many deaths not being reported because medical evidence is simply not available often because of a lack of testing arrangements. Demonstrating the link between death and the work activity or setting is also problematic.
The Labour MP for West Lancashire, Rosie Cooper has called for all health and social care worker Covid-19 deaths to be reported to and investigated by HSE. In a response to a Parliamentary Question by her to the Secretary of State for Health on the issue, a new process has been confirmed by the government which involves referral of Covid-19 deaths for review by an independent medical examiner.
The national director for patient safety at NHS Improvement (Dr Aidan Fowler) will oversee the independent medical examiner.
If it can be established that the health or care worker contracted coronavirus as a result of their work, the deceased’s employer will be informed and thereafter the employer will have responsibility to refer to the HSE.
This provides support and assistance in reviewing deaths of health and social care workers from Covid-19 but does not mean that the medical examiner will assume responsibility for reporting or that all Covid-19 deaths in the workplace during the pandemic will be investigated by HSE.
The guidance issued by HSE has caused confusion for many organisations. The new process may lead to increased reporting in any event and some quarters believe that until that happens the opportunity to learn valuable lessons and assess the impact of the government response to the pandemic may be slipping away.
It will be important for providers of health and social care to be able to demonstrate that they were following relevant government guidance at the appropriate time and to evidence steps taken in this regard. There will be consideration of what was reasonable in all the circumstances and analysis of decisions taken, rationale and record keeping.
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.