³ÉÈËÓ°Òô

In recent weeks the Chief Coroner Mark Lucraft QC has published several guidance notes addressing how coroners should approach COVID-19-related deaths. Most recently, and perhaps controversially, he has produced on ‘Covid-19 deaths and possible exposure in the workplace’ (‘the Guidance’).

James Robottom and Rose Harvey-Sullivan, barristers at 7BR, consider key elements of the latest guidance and explore its implications for inquests arising from the COVID-19 pandemic.

What does the Guidance say, and when should a COVID-19-related death be referred to the coroner?

The Guidance reminds us that COVID-19 constitutes a natural cause of death.  It does not in itself, therefore, require a referral to a coroner.  It states that there ‘may be’ exceptions ‘such as where the virus may have been contracted in the workplace setting’ [para 7]. The Notification of Deaths Regulations 2019 require that a death is reported to a coroner where it is suspected that it was due to a disease ‘attributable’ to the deceased person’s employment.   Obvious candidates for referrals therefore include NHS and care workers and public transport staff who have died as a result of COVID-19.

The question of whether a death is reported to a coroner is a separate issue to whether a coroner has a duty to open an investigation into a death under s.1 of the Coroners and Justice Act 2009: just because a death is reported, it doesn’t mean the coroner is bound to commence an investigation.  Instead, that duty is engaged where a coroner has ‘reason to suspect’ that the death was violent or unnatural, its cause is unknown, or the deceased died whilst in state detention.  The latest Guidance addresses this divide, and notes that where ‘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’ [para 9].

As per R (Touche) v Inner London Coroner [2001] QB 1206, a death ‘may be 'unnatural' where it has resulted from the effects of a naturally occurring condition or disease process but where some human error contributed to death.’ [para 11]  This definition provides an important safeguard to ensure coroners investigate certain deaths from otherwise ‘natural causes’ when it is in the public interest to do so. COVID-19 deaths may therefore require investigation where it is suspected that ‘failures of precautions in a particular workplace caused’ the contraction of the illness.

Workers in many industries, especially NHS staff, have been vocal in asserting that there has been a failure to provide them with adequate personal protective equipment (PPE); this might seem, then, like an obvious topic for consideration at the inquest arising from the death of any such worker. However, the headline-grabbing aspect of the Guidance is the statement that, despite the above: 

‘Coroners are reminded that an inquest is not the right forum for addressing concerns about high-level government or public policy […] an inquest would not 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.’  [para 13]

This has led to concerns that families of NHS and care workers will not obtain answers about PPE at inquests into the deaths of their loved ones.  National newspapers have asserted that the Chief Coroner has told coroners not to look at PPE shortages at all.  Labour has branded the Guidance ‘very worrying’, with the Shadow Attorney General Lord Falconer expressing concern that

Guidance from the Chief Coroner is intended to ‘’. The Guidance emphasises that it should not be taken as an indication of the Chief Coroner’s views on the way in which coroners should exercise their duties. But it also claims to be ‘an expression of the law as it currently stands,’ and in practice, Guidance notes are generally followed by sitting coroners.

Is it right that the Guidance tells coroners not to investigate questions to do with PPE?

First, it is worth noting that the Guidance does not suggest that coroners cannot consider PPE issues at all.  Local policies, such as within a particular Trust, or the way in which a policy has been implemented in practice, are still very much within the coroner’s scope.

This is important because (i) different Trusts and companies have implemented World Health Organisation / Public Health England guidance on PPE differently; and (ii) there have been issues with supply of PPE.

Does the Guidance state the law correctly when it warns that an inquest is not the place to address concerns over high level PPE policies?

The most striking aspect of the Guidance is that it contains no explicit reference to Article 2 of the European Convention on Human Rights – the right to life.  Article 2 requires States to take appropriate steps to safeguard the lives of those within its jurisdiction.  That includes a positive duty to have adequate systems in place to protect the lives of citizens, and a procedural duty to conduct an ECHR-compliant investigation where it is arguable that the State has breached that duty. ‘Arguable’ carries a low threshold for investigation.

In England and Wales, save where a public inquiry is ordered, an inquest is the normal means by which the State discharges its investigative Article 2 duty [1]. In Brincat v Malta [2014] ECHR 60908/11, the European Court of Human Rights held that a failure to provide systemic protection to ship workers from asbestos – including by use of facemasks – constituted a breach of Article 2.

The Guidance cites two authorities for the proposition that high-level government policies should not be investigated at inquests: R (Smith) v Oxfordshire Asst. Deputy Coroner [2011] 1 AC 1 and Scholes v SSHD [2006] HRLR 44. The relevant comments in both cases were, however, obiter.

The Guidance does not cite the more recent Smith v MOD [2014] AC 52, in which Lord Hope provided guidance on the types of decisions relating to military planning and policy that would engage the substantive Article 2 positive duty. Nor does it refer to the decision in R (Long) v SSHD [2015] 1 WLR 5006 in which the Court of Appeal applied Smith v MOD and held that a control system failure in relation an order to provide soldiers with iridium phones arguably constituted a breach of Article 2.  In that case it was decided that the investigative duty was discharged in part through the issue being considered at an inquest. In Smith v MOD Lord Hope emphasised that civilians can expect greater protection from Article 2 than soldiers on active duty [para 71].

There is growing recognition that a public inquiry is likely to be established to look into whether the UK was adequately prepared for COVID-19, and more specifically, into the availability and procurement of PPE. In one sense the Guidance can be read as an indication that the Chief Coroner’s view is that some issues are better left to be investigated at such an inquiry, as opposed to at an inquest into a given individual’s death.

The problem with that approach, however, is that there has been no acknowledgement at a governmental level that an inquiry is necessary yet.  Furthermore, the Guidance does not and cannot alter the primary duties of coroners to investigate appropriate deaths under the CJA 2009 and the ECHR. As Lord Lane stated in R v South London Coroner, ex Parte Thompson (1982) 126 SJ 625, a coroner should ‘seek out and record as many of the facts concerning the death as the public interest requires.’

Investigating civilian deaths that are suspected to have been caused by a failure to provide a safe workplace is a well-established coronial function, whether at common law or because of Article 2 ECHR. In the absence of the establishment of a public inquiry, coroners are likely to face arguments in the coming weeks and months that the deaths of keyworkers should be fully and fearlessly investigated. Any refusal to investigate, or decision to suspend an investigation under para. 5 in such cases may well be challenged by way of judicial review. 

Interplay between inquests and a public inquiry into COVID-19 / PPE 

One way that this situation might change is if a public inquiry is announced.  The Guidance highlights coroners’ general discretionary power to suspend an inquest under para 5 Schedule 1 CJA 2009.  However, there is no mention of the more specific (and mandatory) requirement to suspend an inquest under para 3 of the same Schedule, namely a suspension on the basis that ‘the cause of death is likely to be adequately investigated by an inquiry […] that is being or is to be held’.

Is it right, then, for coroners to use their wider discretionary power under para 5 on the basis that an inquiry may commence in the future? Arguably the inquest should not be suspended using those broader powers until families have certainty that there will indeed be a public inquiry into PPE, and that this inquiry will address their specific questions and concerns.

[1] Middleton v HM Coroner for West Somerset [2004] 1 AC 182, at [21] 

The first edition of ³ÉÈËÓ°Òô’  Coroners' Investigations and Inquests, edited by James Robottom, Rose Harvey-Sullivan, James Weston and Richard Baker, will publish in the Autumn 2020. Subscribers can also access the 'Inquest' chapter for APIL Personal Injury: Law, Practice and Precedents Service, authored by Adam Weitzman QC, James Robottom, Rose Harvey-Sullivan and James Weston.