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Chief Coroner’s Guidance Number 37, Covid – 19 deaths and possible exposure in the workplace. When should a coroner open an investigation?

An inquest can sometimes present the only opportunity for a family to ask questions about the circumstances leading to the death of a relative. It can also form an important part of the investigation into a potential claim for personal injury causing death. In relation to deaths arising from Covid – 19 those claims are likely to come from families of employees who have died following exposure to Covid – 19 in the workplace. This article reviews the Chief Coroner’s Guidance Number 37 (CCG 37) dated 28 April 2020 and the Notification of Death Regulations 2019 in considering when a coroner’s investigation should be opened in respect of a Covid – 19 death where possible exposure was in the workplace.

CCG 37 aims to assist coroners in determining when an investigation or inquest may be opened into a death caused by possible exposure to Covid – 19  in the workplace.  CCG 37 emphasises it is not law nor policy.  The application of the law has not changed. Coroners make decisions on a case by case basis and have a wide judicial discretion.

A coroner can only investigate a death which has been reported to the coroner. CCG 37 gives examples of 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. Examples given are of frontline NHS staff, public transport employees, care home workers, and emergency services personnel.  To that list could presumably be added prison staff, delivery workers such as postal workers, shop and supermarket employees and teachers.

What guidance is there to assist a medical practitioner in determining whether to report a Covid – 19 death to the coroner?

The certification of the cause of death is a question for the medical practitioner and, unsurprisingly,  is not addressed in CCG 37. Amended Guidance for medical practitioners completing Medical Certificates of Cause of Death in England and Wales[1] (MCCD Guidance) for use during the emergency period has been issued.  Section 3 of the MCCD Guidance deals with referring deaths to the coroner.

In relation to the cause of death,  Section 3 states, “Medical practitioners are required to certify causes of death “to the best of their knowledge and belief”. Without diagnostic proof, if appropriate and to avoid delay, medical practitioners can circle ‘2’ in the MCCD (“information from post-mortem may be available later”) or tick Box B on the reverse of the MCCD for ante-mortem investigations. For example, if before death the patient had symptoms typical of COVID-19 infection, but the test result has not been received, it would be satisfactory to give ‘COVID-19’ as the cause of death, tick Box B and then share the test result when it becomes available. In the circumstances of there being no swab, it is satisfactory to apply clinical judgement.”

A medical practitioner could be certifying the cause of death absent any diagnostic proof of Covid – 19 ever being obtained.  In the event of a certification of Covid – 19 as a cause of death, but absent diagnostic proof, an employer in any civil claim and/or who is an interested party may dispute that the death was caused by Covid – 19, particularly where the deceased had an underlying condition and/or  the death did not occur in hospital.

A Covid – 19 death is not a reason of its own to notify the coroner. The MCCD Guidance states, “Whilst Covid-19 is a notifiable disease under the Health Protection (Notification) Regulations 2010, a death caused by Covid-19 virus is not reason of its own to notify the death to the coroner.” (Section 4)

The Notification of Death Regulations 2019, which came into force on 1 October 2019, contains two provisions whereby the duty to notify the corner of a death due to Covid – 19 contracted in the workplace may arise.

The first provision is highlighted in CCG 37: 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 death was due to …(ix) an injury or disease attributable to any employment held during the person’s lifetime.”

The Guidance for registered medical practitioners on the Notification of Deaths Regulations [2] amplifies that a death must be notified to the relevant senior coroner where there is reasonable cause to suspect that the death was due to (that is, more than minimally, negligibly or trivially) caused or contributed to by an injury or disease attributable to any employment held by the person during the person’s lifetime.

The obvious example of a disease which would be suspected to be attributable to employment is diffuse mesothelioma which is almost always caused by exposure to asbestos in the workplace.

However, Covid – 19 is not as obviously attributable to employment as is mesothelioma due to Covid – 19 also being prevalent in the community.  Even assuming some enquiry as to the deceased’s potential source of exposure to Covid – 19,  medical practitioners considering whether the duty to notify the coroner of a deaths will be faced with the difficult task of making an assessment as to whether they have reasonable cause to suspect an employee who has died from Covid – 19 contracted it in the community or in the course of their employment. Only in the latter case must the death be reported to the coroner.

The second provision which may impose a duty to notify the coroner is found in section 3(1)(b) of the Notification of Death Regulations 2019:  “the registered medical practitioner suspects that the person’s death was unnatural but does not fall within any of the circumstances listed in sub-paragraph (a)”.  The Guidance for registered medical practitioners on the Notification of Deaths Regulations gives an example of an unnatural death as a deceased who may have contracted a disease (e.g., mesothelioma) as a result of washing his/her partner’s overalls which were covered in asbestos however long before the death occurred.  By analogy, an employee who contracts the virus in the workplace who innocently infects their partner, or even members of their household, leading to their partner’s/ household member’s  death should be reported as “an unnatural death”.

The Guidance on notification of deaths has been revised in light of Covid – 19, but there is no revised guidance about what might constitute grounds for suspicion of a link between a Covid – 19 death to the deceased’s or a family member’s employment. CCG 37 gives examples of employment where the virus “may” have been contracted.

It seems safe to assume that a medical practitioner’s focus would be on treatment rather than taking a detailed history detailing a person’s employment and potential sources of exposure.

It may well transpire that certain classes of employee who have died from Covid – 19 are reported to the Coroner more frequently than others due to certain employments more obviously exposing employees to Covid – 19 in the workplace, such as NHS staff or those working in care homes. Deaths of transport workers from Covid – 19 have been highlighted in the media.[3] Workplace exposure leading to death of a household member/ partner seems even less likely to be reported to the Coroner due to being one step removed from the employment itself.  The deaths of family members from Covid – 19 caught from an employee in their household would not be reportable under Riddor and so will probably escape scrutiny.

Families are often unaware of inquest procedure,  and the relevance and importance of an inquest to potential civil claim and are therefore unlikely to alert a medical professional to refer a death to the coroner.

Once reported, a Coroner does not automatically open an investigation or inquest.  The coroner must first consider whether his or her s1(2) duty under the Coroners and Justice Act 2009 is engaged, 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. The coroner may carry out reasonable pre-investigation enquiries under s1(7) to determine if there is any basis for opening an investigation.

A coroner’s inquest and investigation may be required if there were reason to suspect that: –

i) Some human failure contributed to the person being infected with the virus. If the coroner decides to open an investigation, 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 death.

ii) Some failure of clinical care of the person in their final illness contributed to death. Presumably this would include a death from Covid – 19 where the deceased person caught Covid – 19 while a patient in hospital being treated for an unrelated illness.

iii) If the person died in state detention (e.g. in prison or secure mental health ward), an inquest would have to take place.

Coroners are reminded by CCG 37 that an inquest is not the right forum for addressing concerns about high-level government or public policy. Neither would an inquest 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.

If the coroner considers that 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. In making that decision, the coroner should consider  his or her own ability (a) to pursue necessary enquiries to gather evidence and (b) to

proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions. As advised in previous Guidance, coroners pursuing enquiries with hospitals and clinicians should be sensitive to the additional demands upon them during this period. Coroners have a broad discretion under paragraph 5 of Schedule 1 to the Coroners and Justice Act to suspend an investigation. However, they should be mindful that it may be in the best interests of the bereaved family to proceed with the investigation and inquest in a prompt and timely way. Coroners will need to consider the facts and circumstances of each individual case when making their decisions on how to proceed.

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.

CCG 37 states that the vast majority of Covid – 19 deaths are due to the natural progression of a naturally occurring disease and so will not be referred to the coroner. The opportunity to open an investigation will obviously be lost if the death were never referred to the coroner in the first place.

To read the full Chief Coroner’s Guidance No. 37   Click here

Caroline Wood

Park Square Barristers

29th April 2020

[1] https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/03/COVID-19-Act-excess-death-provisions-info-and-guidance-31-03-20.pdf

[2]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878083/revised-guidance-for-registered-medical-practitioners-on-the-notification-of-deaths-regulations.pdf

[3] https://metro.co.uk/2020/04/15/26-tfl-workers-died-testing-positive-coronavirus-12562009/

Caroline Wood Specialises in all areas of personal injury and fatal accidents including disease and clinical negligence.She frequently provides representation at inquests and pre–inquest review hearings and has a particular interest in inquests touching deaths that occur in healthcare settings and accidents at work where she is able to provide continuity of counsel through to any civil claim flowing out of the inquest.

Contact Caroline’s clerks