The absence of proper PPE. Potential trouble for those employing frontline workers in fighting COVID.

Today’s guidance from the Chief Coroner No. 37

It is immaterial whether the Government’s action and policy is ‘right, wrong or indifferent’ - what is clear is many on the ‘frontline’ do not appear to have the necessary protective equipment. Be they clinicians or care workers; be they bus drivers, supermarket workers or those testing the population, no amount of applause will help when there is a death in the workplace.

So, let’s start by looking at the issue thrown up by this guidance for us to be aware of.

Personal protective equipment

The guidance makes clear, it is not the role of Coroners to consider policy and government decisions about the availability of PPE. Such high level policy arrangements are not a matter for an inquest. That is well established law.

But the guidance reminds us that some deaths are notifiable to the Health and Safety Executive (paragraph 5).

“…under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’).  Regulation 6(2) of RIDDOR requires a report to be made where “any person dies as a result of occupational exposure to a biological agent”. The expression “biological agent” includes the virus which causes the COVID-19 disease.  Consistent with the requirements of RIDDOR, the HSE has published guidance that death as a result of work-related exposure to the virus must be subject to the reporting procedure.” [Emphasis added]

So, where frontline staff contract the virus and where it is suspected it was contracted in the workplace then it seems such a death must reported. For frontline workers it is hard to avoid, at least, a suspicion which would need reporting to the Coroner.  

It is instructive to look at paragraph 9:

“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. The coroner may carry out reasonable pre-investigation enquiries under s1(7) to determine if there is any basis for opening an investigation”.

Although this is couched in terms suggesting most Covid deaths do not need reporting (which is accepted as being the case), clearly the question of ‘culpable human failure’ needs careful thought. If there is reason to suspect culpable human failure (and while not being critical of high level policy) then the Coroner will need to investigate whether there is reason to suspect that a person exposed to Covid at work did so because of inadequate, or in the absence of adequate protection.

When might a Coroner investigate a death due to Covid?

While most deaths from Covid will not require an investigation, some will. In particular:

• Where there is reason to suspect some culpable human failure led to an individual being infected including a failure to take necessary precautions.
• If there is reason to suspect a failure in clinical care during someone’s final illness.
• If someone dies in state detection (including under the Mental Health Act).

Some other recent points to note from Chief Coroner Guidance No. 34

• Coroners are responsible for their own judicial decisions and so we can expect local practice to vary.

• There should be no physical coronial hearings – remote hearings are the order of business wherever possible.

• It is accepted adjournments will mean cases running well over the 12 month target of completion.  That is something for the Chief Coroner to handle.

• Coroners should recognise clinical commitments and other problems in the current emergency and should grant extensions to healthcare organisations and prisons.

• Unavailability of post mortem examinations may be an issue. If a senior coroner is unable to establish a natural cause, a death may need to proceed to an inquest.

           The Royal College of Pathologists say:

"In general, if a death is believe to be due to confirmed COVID-19 infection, there is unlikely to be any need for a post mortem to be conducted and the Medical Certificate of Cause of Death should be issued." 

• Coroners are invited to take a pragmatic approach and take necessary steps to ensure deaths are registered in a timely fashion.

• Some deaths (for example deaths in custody) still need an inquest which might need to be postponed or hold a short ‘paper’ inquest if it is clearly natural causes. However, ‘sufficiency of inquiry’ must be maintained.

Comment – what is adequate protection?

You will recall, on the 19 March 2020, the UK downgraded covid-19 from HCID, which is the “high consequence infectious disease” category, and which requires the provision of a very high level of PPE for health and frontline workers. This has been the subject of much criticism in the media and is the type of policy decision not open to Coroners to investigate.

But you can understand how this could lead to Coroners – and lawyers – seeking to explore whether an individual working in high risk circumstances was not provided with “adequate” protection in the circumstances. You can foresee now lengthy arguments about what is meant by adequate and whether an individual had proper protection.