Read in PDF version <here>. 1st May 2020
DEATH IN THE WORKPLACE
The Chief Coroner has released Guidance Note 37 on whether, and how, coroner’s investigations into workplace deaths should be opened. (see https://tinyurl.com/Covid19Coroner)
Coroners’ Courts are likely to be the first place in which the issues of a safe workplace, safe working practices & the adequacy of personal protective equipment (PPE) & protective steps, including the quality of PPE, will be investigated. If this does not occur this does not preclude later action in the civil courts because unless raised with the coroner, there can be no guarantee that the coroner will consider the question of safe workplaces, safe working practices and the adequacy of PPE.
Covid deaths notifiable to Public Health England under the Health Protection (Notification) Regulations 2010, but this has no bearing on the reporting of the death to the coroner. The death may also be notifiable to the Health and Safety Executive (‘HSE’) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’), s6(2) of which requires a report to be made when “any person dies as a result of occupational exposure to a biological agent” (and “biologal agent” includes the virus which causes the COVID-19 disease. (see tinyurl.com/HSERiddorCovid).
There is no requirement for death by COVID-19 to be automatically referred to the coroner, because COVID-19 is considered to be a naturally occurring phenomena (see Note 37, §18). Therefore not every death that occurs from COVID-19 will be referred to the coroner under the Notification of Deaths Regulations 2019 but where there are concerns or other grounds for referral to the coroner, then matters will need to be referred to the coroner. . For example where the medical practitioner signing the death certificatesuspects that the person’s death was due to… (ix) an injury or disease attributable to any employment held during the person’s lifetime” or that there was a contributory factor of the workplace of employment, then this must be indicated on the certificate and the matter will be referred to the coroner. R (Fullick) v HM Senior Coroner for Inner North London  EWHC 3522 §34-37 & R (Touche) v Inner London North Coroner  QB 1206
Highlighted in the press in recent weeks has been concerns about inadequate working conditions and unsafe working conditions as well as lack of PPE in relation to NHS staff, care home workers, emergency services personnel, public transport employees and supermarket workers. As we get back to whatever is the post-COVID19 norm, it is likely that a large number of the deaths that have occurred in the workplace will be referred to the coroner on the grounds that PPE and/or workplace procedures may not have provided adequate protection to deceased relations and may have caused their subsequent death from COVID-19.
Although emergency legislation modified some of the rules on death certification for the pandemic, the legal decisions made by the coroner after referral and duties that flow from this are unchanged.
Notification of Deaths Regulations 2019 provide that “A death is typically considered to be unnatural if it has not resulted entirely from a naturally occurring disease process running its natural course, where nothing else is implicated”.
Therefore the medical practitioner certifying death must refer to the coroner if the death was contributed to by any PPE defect or unsafe working practice (and this includes the catching of the virus, not just the way the virus ran its course.
The starting point lies in the Coroners & Justice Act 2009, where s1(2) states that a coroners’ investigation must be carried out if there was a “violent or unnatural death”, so if the cause of death is Covid19 and no culpable human event occurred (fault or other event) contributed to the death, then no investigation will occur.
Due to the definition of “an unnatural death” the law required that the coroner must hold an investigation if there is an unnatural death. In many cases, This test has a very low threshold and therefore a tip-off, an allegation or a suspicion is enough to trigger the criteria – and the evidence is not as high as prima facie. Where the very low threshold is not met, the coroner can even carry out a preliminary investigation under s1(7) to investigate the allegations.
This means that failure to provide adequate PPE where a worker is exposed to Covid19 in the workplace and then catches Covid19 and dies would be adequate to trigger the coroner’s duties and also where there is suspicion that inadequate PPE was provided the same will apply. Equally where unsafe working practices occurred then the same will apply.
The coroner has four statutory questions to ask
– who the deceased was
– where, when and how/why the death occurred
The new Guidance 37 §12 reminds coroners and medical practitioners that “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. Also, if there were reason to suspect that some failure of clinical care of the person in their final illness contributed to death, it may be necessary to have an inquest and consider the clinical care. If the person died in state detention (e.g. in prison or secure mental health ward), an inquest would have to take place.
It goes onto say (§14) that it is a matter of judgment for the individual coroner to decide on the scope of each investigation. The coroner must consider the question of scope in the context of providing evidence to answer the four statutory questions.
Those who think that a coroner’s hearing is the solution where a workplace infection arose and that this will short-circuit compensation claims are however in for a shock.
The new Guidance reminds coroners that an inquest is not the right forum for addressing concerns about high-level government or public policy or to discuss issues of general policy (see Scholes v SSHD  HRLR 44 at ; R (Smith) v Oxfordshire Asst. Deputy Coroner  1 AC 1 §81 (the Flak Jacket case]. 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 it could not look into whether the MoD breached a duty to provide adequate and effective flak jackets or whether other available Flak jackets should have been provided”. By this 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 NHS and healthcare workers, but it could determine that there was a likelihood that in this particular case, the deceased died because of inadequate PPE or unsafe working practices. Coroner for the Birmingham Inquests (1974) v Julie Hambleton and others  EWCA Civ 2081.
Also in the guidance §14 is a suggestion that 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), then the coroner may suspend the investigation until it becomes clear how such enquiries can best be pursued.
In deciding this, the coroner should consider his/ her own ability
- to pursue necessary enquiries to gather evidence
- to require provision of medical or scientific advice upon which policies in place were developed or influenced;
- to proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions.
A Coroner pursuing enquiries with hospitals and clinicians would therefore need to be sensitive to the demands on clinical staff at the time and there is a very wide and broad discretion under the Coroners and Justice Act (Sch 1 §5) to suspend an investigation, but the coroner must also 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.
Guidance No. 36 (Summary of the Coronavirus Act 2020 Provisions Relevant to Coroners), also provides for inquest to be heard without a jury if there is reason to suspect that death was caused by COVID-19 (Coronavirus Act 2020 s30).
A medic having suspicion that a death was due to an injury or disease attributable to, or was contributed to by, any employment must report it to the coroner.
Notification of Deaths Regulations 2019
Therefore, a COVID-19 death must be reported to the coroner, if the virus may have been contracted in the workplace setting and this will include most cases of frontline NHS staff, public transport employees, care home workers, emergency services personnel. The coroner can also revisit this decision, in the event of further evidence ( Guidance Note 33).
So it must be expected that bereaved families of emergency workers who have died from exposure to COVID-19 will be asking the coroners to investigate the adequacy of the protection provided in the workplace (including the availability of PPE of the right quality and the need to re-use PPE) as well as looking at the safety procedures in the workplace. The scope of the investigation will allow the coroner to look into the medical equipment and the adequacy of staffing in the hospital (including factors such as shortage of medication or shortage of ventilators) as well as the ability of the hospital in all of the circumstances (including its funding) to provide the necessary clinical care.
In this context, a coroner will be able to gather evidence from individuals and officers of the organisation connected to any such death, including employers healthcare providers, other staff members as well as product suppliers and many of these(Whether NHS trusts, care homes, emergency services organisations, suppliers of PPE et cetera) will be afforded the state of that interested persons at inquests, and it is not inconceivable that some will wish to give evidence about the lack of availability of PPE in contrast to statements of government ministers that adequate PPE of the right quality was available.
Therefore, the Coroner’s Court is likely to be the first place where a public investigation will arise and these are likely to be media circuses attracting significant media attention watched carefully by those contemplating criminal prosecutions or civil claims. Organisations where deaths have occurred will need to be ready to fully co-operate with coroners and should be already preserving evidence in readiness for such hearings in order to avoid coroners causing significant damage to organisations reputations by asserting that they failed to properly secure evidence.
ADL Solicitors Ltd
Dr Nick Lockett
English Barrister (NP30499)
English Solicitor Advocate 213086
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