In this previous post (Friday 24 April) it was noted that the Coronavirus Act 2020 s. 30 enabled Coroners to hold inquests without a jury in cases where the Coroner has reason to suspect that the death was caused by COVID-19.
In practice, inquests will not be required for the majority of deaths arising from COVID-19. The situations in which a Coroner must be informed of a death are set out in The Notification of Deaths Regulations 2019 and Regulation 3(1)(a)(ix) requires a medical practitioner to notify the Coroner where the practitioner suspects that the death was due to an an injury or disease attributable to any employment held during the person’s lifetime.
It follows that
there are likely to be some COVID-19 deaths reported to Coroners where the virus might have been contracted at a workplace - e.g. NHS staff, public transport employees, care home workers, emergency services personnel etc.
In such cases, the Coroner must consider the duty under the Coroners and Justice Act 2009 s1(2) which provides that the coroner must conduct an investigation if he or she 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.
If the medical cause of death is COVID-19 and there is no reason to suspect that any culpable human failure contributed to the particular death, there will usually be no requirement for an investigation to be opened. (Note: The coroner may carry out pre-investigation enquiries under s1(7) to determine if there is any basis for opening an investigation).
Nonetheless, there are likely to be some cases requiring a Coroner's investigation and inquest. For instance, if there is reason to suspect that some human failure contributed to the person being infected with the virus, an investigation and inquest may be required.
If the coroner decides to open an investigation, then he or she will need to consider whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to death.
The individual Coroner has to decide the scope of each investigation and in making the decision the four statutory questions have to be considered - who has died, when did they die, where did they die and how did they come by their death. An inquest may be required to establish the answers to some or all of the questions and, in particular, how the deceased came about his or her death.
In cases where Article 2 of the European Convention on Human Rights is engaged, the scope of the inquest is widened to consider ‘how and in what circumstances’ the deceased came by their death. (The question of when Article 2 is engaged is complex and is not considered further in this post - see, for example, Exchange Chambers 8 April 2020).
Chief Coroner's Guidance No.37
On 29 April, the Chief Coroner (Mark Lucraft QC) issued Guidance Sheet No.37.
Guidance No: 37: COVID-19 deaths and possible exposure in the workplace
Immediately, this caused controversy given the extensive criticism of the government over the provision of Personal Protective Equipment (PPE) to those treating patients with coronavius.
The guidance begins - "Coroners make judicial decisions on a case by case basis and nothing in this Guidance should be taken as a statement of any policy or indication of the Chief Coroner’s views on the way that coroners should exercise their duties. The Guidance is an expression of the law as it currently stands."
The guidance note states at para. 13 -
" ... Coroners are reminded that an inquest is not the right forum for addressing concerns about high level government or public policy. 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: see Scholes v SSHD [2006] HRLR 44 at [69]; R (Smith) v Oxfordshire Asst. Deputy Coroner [2011] 1 AC 1 at [81].
In the latter case, Lord Phillips observed that an inquest could properly consider whether a soldier had died because a flak jacket had been pierced by a sniper’s 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.”
By the same reasoning, 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."
The Chief Coroner then goes on (para 14) to suggest that if "a proper investigation into the death requires that 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), he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued."
Comment:
Inquiry?
In a previous post of 15 April, the question of whether there will be a public inquiry was discussed. I concluded by noting that more focussed inquiries aimed at improving the response to any future similar events might prove to be more effective that a lengthy and complex overrarching inquiry. An example could be an inquiry regarding provision of personal protective equipment.
The limitations on inquests which the Chief Coroner has identified point to the need for a thorough examination of the arrangements for the provision of PPE and appear to strengthen the case for an inquiry to be held into PPE.
Inquests:
The Chief Coroner's guidance appears to be aimed more toward avoidance of Coroner's attempting to investigate the wider question of PPE provision in general.
Nothing in the guidance seems to prevent a Coroner examining whether there was adequate PPE provided by a particular NHS Trust or care provider. Evidence of local policies and arrangements for the provision of PPE may therefore be called for through a coroner’s investigation.
Articles:
BLM Law - Further guidance issued by HM Coroner - COVID 19 deaths
Media:
The Guardian 29 April - NHS staff coronavirus inquests told not to look at PPE shortages
The Telegraph 29 April - Inquests into NHS staff who contracted Covid-19 should not examine issue of PPE, Chief Coroner warns
The headlines give the misleading and unfortunate impression that the Chief Coroner is somehow protecting the government from possible criticism. That is clearly NOT the position.
I have no doubt that there ought to be an inquiry into a number of coronavirus-related matters including the provision of PPE. There are several questions requiring answers (including PPE) and the aim of any inquiry should be avoidance of future problems.
No comments:
Post a Comment