New guidance from the Chief Coroner No.37.
The issue: forewarned is forearmed
It is immaterial whether the Government’s action and policy on PPE 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 working in the prison estate, no amount of applause will help when there is a death in the workplace. The evidence that deaths have resulted from this is likely to be overwhelming – though we cannot, yet, be certain.
Although there are risks to employers like health and care providers (be they NHS Trusts, private sector providers and care homes etc) hidden in the detail of the newly published guidance from the Chief Coroner (and it is best to identify these in the hope they can be mitigated), it is to be hoped that a pragmatic and realistic approach will be taken if, and probably when, the deaths of frontline workers come to be investigated by Coroners.
It is highly likely, when things settle down, there will be an inquiry of some shape or form. That will be the time and place to consider everything (the good, the bad and the ugly) which has led to the current situation. This will include high-level policy making along with the processes involved.
At a micro level (local level), in the months and years ahead, employers may well face public scrutiny in the Coroners’ courts. Some inquests will likely attract significant publicity.
So, let’s start by looking at the issues thrown up by this guidance for us to be aware of.
The devil is in the detail
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, it is for any future inquiry. That much is well-established law.
But the guidance reminds us that some deaths are notifiable to the Health & Safety Executive [paragraph five, guidance No. 37]
“…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, of guidance No. 37:
“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-19 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. It may not be enough to argue there was a national shortage of PPE available on the frontline. Lawyers for the families of those who die might pose an altogether different question for the Coroner. Is there reason to suspect a particular individual succumbed to the disease from exposure at work in the absence of proper protection – and, in addition, when the risk was well known?
This could be considered to be semantics. That may be right. But it is foreseeable.
The facts of life
Now is not the time for raking over mistakes. But, if and when, these legal questions come to be posed let’s hope the problems faced by the frontline are fixed in our consciousness when it comes to the inquest process.
Public service is key. Public service is not restricted by who pays your salary. Thousands of care home workers and others provide an essential public service through the independent sector. It is impossible to do without them. That is public policy. So, we need to recognise the procurement and delivery of PPE to almost 22,000 care homes and other accommodations (measuring almost 100,000) is one of the most difficult logistical challenges ever faced. We have seen reported that two-thirds of care homes highlighted inadequate PPE. The global market is in ‘meltdown’ and ‘mission critical capacity’ is failing. Fault and blame is immaterial as fantastic local initiatives attempt to deliver and move stock around by way of ‘mutual aid’.
Why do I mention all this?
Looking to the future
Everyone is doing their best. Do your best. No one should be criticised (by lawyers or Coroners) for doing their best in a crisis. The proper question to ask on a case-by-case basis is whether what was done was reasonable in the circumstances. Coroners are being encouraged to adopt a pragmatic and practical approach during this pandemic. Hopefully this will extend to the scope and questions they, and the lawyers, ask during hearings in the months ahead.
Obviously, even for a lawyer, one hesitates before advising anything should be done which would divert attention and resources away from dealing with the crisis faced by employers tackling this infectious disease endemic, certainly in parts, if not the whole of the population. But, as always, it is prudent to maintain proper records to show attempts at procurement, responses received and to evidence every step taken to protect the workforce (and others).
Hopefully, it may be, even in the future, like now, there will be no public appetite for criticism of those currently working so hard (and putting themselves at risk). But journalism is a ‘fickle’ profession and, even now, faces criticism for concentrating on, and in some cases manufacturing, the bad and ugly story.
You will recall, on the 19th 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 front line 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.
It does beg the question as to what might be considered to be ‘reasonable’ or ‘adequate’ protection. There is also the question of causation that will need addressing. Just how did someone become infected? Were they exposed to the virus through faulty or inadequate equipment or when they went shopping in the community? You can foresee lengthy arguments about what is meant by adequate; whether those doing vital public service had proper protection and whether there is sufficient evidence to determine how someone may have contracted the disease.