Key COVID-19 legal developments in the health sector: COVID-19 Deaths and Possible Exposure in the workplace - Chief Coroners Guidance no 37

Published 29 April 2020

The Chief Coroner published new guidance on 28 April 2020 to assist Coroners to exercise their judicial decisions with particular reference to COVID19 deaths following potential exposure in the workplace. Whilst this Guidance focusses primarily on identifying those cases where inquests may still be required despite COVID 19 being a natural cause of death, it also provides some useful content on the potential scope decisions within COVID 19 inquests, reminding Coroners to avoid becoming drawn in to far reaching analysis of government policy (such as PPE supplies), unless there is evidence of direct relevance to the individual death being investigated. Even then, the Guidance encourages Coroners to consider how those issues may be investigated elsewhere, and thus (whilst not expressly mentioned), potentially satisfying possible Article 2 investigative duties, by other means than inquests.

Deciding Whether to Hold an Inquest

In the main this is a re-emphasis of existing regulations and guidance, but the opportunity has been taken to guide decision making around COVID 19 deaths where there may be evidence that the death has arisen in the workplace. This clearly seeks to address the concern around health and social care workers succumbing to COVID 19, and the difficult question of whether their professional roles have increased their exposure to the virus, overlayed by concerns regarding PPE. The first principle is that, irrespective of the COVID backdrop, coroners must apply usual principles to distinguish natural and unnatural causes, making decisions on a case by case basis. The vast majority of COVID 19 deaths are due to a natural progression of a naturally occurring disease so will not be subject to inquest.

COVID 19 is however a notifiable disease (to Public Health England) but that in itself does not require referral to a coroner. However, a death may also be notifiable to the Health and Safety Executive under RIDDOR, which requires a report to be made where “any person dies as a result of occupational exposure to a biological agent” and the guidance advises that COVID 19 is such a biological agent.

Building on this, the Notification of Deaths Regulations 2019 also provide that a report must be made to a coroner if the certifying medical practitioner suspects the persons death was due to an injury or disease attributable to any employment held during the person’s lifetime.

The cumulative impact of these provisions, indicates that there will be circumstances where the death of an individual in the workplace (typically health and social care workers, but this naturally extends to all workplaces) a COVID 19 death may be reported to a coroner. The Coroner must then follow the usual pathway of triggering a full inquest, namely whether; there is reason to suspect the deceased died a violent or unnatural death, the cause of death is unknown or the deceased was in state detention.

If there is reason to suspect the deceased died an unnatural death then there must be an investigation. An example given is where there is reason to suspect that some human failure contributed to the person being infected with the virus, and an investigation may be required.

It is stated that “If the coroner decides to open an inquest, then he or she may need to consider whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to the death".

Coroners are reminded however that they must judge the scope of the investigation in the context of the statutory questions to be answered ,and it is emphasised that an inquest is not the right forum for addressing concerns about high-level government or wider public policy. An inquest therefore would not, for example, be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers in the country or a part of it. This reminder is helpful, and can be applied to cases where others may seek to argue that the death is potentially at the hands of the State, and that Article 2 investigative duties are triggered, and a far broader scope is sought. We anticipate that despite the clarity in this Guidance, coroners may have to grapple with submissions which seek to suggest Article 2 is engaged, and scope (and Interested Persons) should be broadened to address wider policy decisions made during the pandemic.

For providers of frontline health and social care, the position is therefore that the existing rules have been emphasised here, in response to concerns over workers’ deaths. Any death if caused by COVID-19 potentially contracted during occupational exposure should be reported (whether to the HSE under the RIDDOR regulations, or to the coroner under the notification of deaths regulations.). The Coroner will then determine the scope of the investigation necessary, which may include investigation into whether as a matter of fact any deficiencies in the provision of PPE may have contributed to the death, but should not be persuaded to stray towards investigating the higher level policy decisions made by local or national government.