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Kirsten Mercer

How should Coroners Courts be responding to the Covid-19 pandemic?

How should Coroners Courts be responding to the Covid-19 pandemic?

1. The Chief Coroner has issued guidance numbers 34 and 35 to assist Coroners to deal with the challenges they will face during the Covid 19 pandemic. It is also of assistance to medical professionals, the bereaved and others whose work brings them into contact with the coroners court.

2. The Chief Coroner has adopted the position expressed by the Lord Chief Justice that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”

3. The guidance makes clear that the only hearings that should be taking place in a coroner’s court during this pandemic are those which are urgent and essential business.

What is urgent and essential?

4. The guidance does not specify what is urgent and essential business.

5. The Coroners (Inquests) Rules 2013 provides:

5 (1) An inquest must be opened as soon as reasonably practicable after the date on which the coroner considers that the duty under section 6 applies.

(2) At the opening of the inquest, the coroner must, where possible, set the dates on which any subsequent hearings are scheduled to take place.

6. Guidance number 35 reminds Coroners that the inquest need only be opened as soon as reasonably practicable and implies that the opening of an inquest is not urgent and essential.

Is Covid-19 a natural cause?

7. In the guidance the Chief Coroner reminds coroners of the Ministry of Justice Guidance on the Notification of Deaths Regulations 2019, which provides “24. A death is typically considered to be unnatural if it has not resulted entirely from a naturally occurring disease running its natural course, where nothing else is implicated.”

8. The Chief Coroner supports the position communicated to medical practitioners by NHS England and the Chief Medical Officers that:

– COVID-19 is an acceptable direct or underlying cause of death for the purposes of completing the Medical Certificate of Cause of Death (MCCD);

– COVID-19 as a cause or contributory cause of death is not a reason on its own to refer a death to a coroner;

– The fact that COVID-19 is now a notifiable disease under the Health Protection (Notification) Regulations 2010 does NOT mean a referral to a coroner is required;

– When the next of kin/ informant is self-isolating, an alternative informant who has not been in contact with the patient should collect the MCCD and deliver it to the registrar. The Coronavirus Act enables this to be done electronically.

9. The Chief Coroner makes it clear that every death from COVID-19 which does not in law require a referral to the coroner should be dealt with via the MCCD process.

When is it necessary to refer a suspected COVID-19 death to the coroner?

10. There will be circumstances in which a COVID-19 death is referred to the coroner, for example where the cause of death is not clear or where the cause of death is clear but the deceased died while in state custody.

11. It may also be necessary to refer a COVID-19 death to the coroner where there is insufficient capacity within the health service to diagnose COVID-19 as an illness in life and to produce an MCCD after death without a referral to the coroner. Schedule 13 of the Coronavirus Act 2020 is also of some assistance. It permits a registered medical practitioner (“X”) who is not the practitioner who attended the deceased person during their last illness to sign the MCCD if the practitioner who attended the deceased is unable to sign it or it is impractical for them to sign it if X is able to state to the best of X’s knowledge and belief the cause of death. Similarly, a registered medical practitioner (“P”) may sign the MCCD even if the deceased has not been attended during their last illness by a registered medical practitioner if P is able to state to the best of P’s knowledge and belief the case of death. The period during which the deceased must have been seen by a medical practitioner prior to death to prevent the necessity of referral to the coroner is increased from 14 to 28 days, if they were not seen by a medical practitioner after death.

12. Paragraph 23 gives guidance as to the options available to the coroner should a suspected COVID-19 death be referred to them:

12.1 Dialogue with the doctor who reported the death. The coroner can make a doctor aware of facts which may be relevant to a decision to sign an MCCD;

12.2 Issue a form 100A (where a coroner sends a form to the registrar informing them they are aware of the death but no further investigation is necessary) if an MCCD is signed and the coroner is satisfied that the duty to investigate is not engaged;

12.3 The death can be registered via the form 100B procedure (where a coroner sends a form to the registrar stating the cause of death without holding an inquest) where a postmortem examination has produced a natural cause of death, even where the exact cause is not ascertained.

12.4 If a postmortem cannot be conducted in a reasonable time the coroner should open an investigation and proceed to inquest. The coroner should gather all of the relevant medical evidence and other evidence, including witness statements describing the scene and from those who knew the deceased and can describe symptoms. Thereafter the coroner has two options:

12.4.1 It may be possible to hold a short inquest which arrives at a conclusion and provides either COVID-19 or an unknown cause as the medical cause of death. It may be that the pathologist is able to confirm on the balance of probabilities that the death is an unascertained natural course, in which case the investigation can be discontinued and the form 100B procedure can be used.

12.4.2 If an inquest cannot be held or where a more detailed explanation is required, for example in a prison death the coroner should gather the evidence, release the body for cremation or burial and list the inquest to be heard on a future date.

13. The guidance states that it may not be possible to perform the detailed death investigation process coroners are used to. Coroners remain under their usual statutory duties and must conduct proper investigations. However, the guidance makes it clear that coroners should exercise their discretion and judgments in a pragmatic way, taking into account the effects of the pandemic.

Further considerations for medical professionals

14. It may also be of assistance to medical professionals to note that at the end of paragraph 10 it makes clear that coroners should recognise the primary commitments of medical professionals, including pathologists, especially at times of high pressure on health services. The guidance suggests that this may mean avoiding or deferring requests for lengthy reports or statements and accommodating clinical commitments.

Outstanding Prevention of Future Death Reports

15. The guidance recognises that where there are outstanding responses to prevention of future death (PFD) reports from NHS Trusts, healthcare organisations and institutions like prisons that coroners may be asked to grant extensions. It is suggested that coroners might want to consider reviewing outstanding PFD responses and write to some recipients inviting extensions.

Deaths in prison or otherwise in state detention

16. The guidance reminds coroners of the importance of scrutinising carefully deaths in custody. It states that deaths in custody which are not natural cause deaths should be given as much attention and resource as is available in the circumstances. It states that where there are issues with the care provided a post-mortem examination may still be a necessity even if the death was from natural causes.

17. The guidance acknowledges the pressures that there will be on the normal multi-agency process following a death in custody.

Appointing additional assistant coroners

18. The guidance states that the Chief Coroner and the Lord Chancellor are prepared, in principle, to consent to the appointment of assistant coroners without open competition to deal with urgent workload pressures caused. Potential sources for such appointments include assistant coroners from other areas, recently retired assistant coroners, member of the bar and solicitors with inquest experience.

Can hearings be conducted remotely?

19. As far as the interested persons are concerned, they can all attend hearings remotely should a coroner’s court have the facilities to enable this. However, the guidance makes it clear that the Coroner themselves must be present at court. The reason for this is that such hearings must, in law, take place in public. It is suggested that in public may mean they take place where only a member of the immediate family is present and with a representative of the press being able to attend.

Kirsten Mercer

Park Square Barristers

30th March 2020

Contact the Regulatory & Public Law Clerks

Our dedicated Clerks and Barristers are all working hard at this difficult time to ensure as many court hearings as possible continue to run and that our clients are kept well informed. If you require any assistance contact one of our dedicated regulatory & public clerks.

Madeleine Gray on 0113 202 8603

Patrick Urbina on 0113 213 5250