Coronial Law in the wake of Covid 19

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The chief coroner has issued three sets of guidance:

  • No 34 guidance for coroners on Covid 19
  • No 35 hearings during the pandemic
  • No 36 Summary of the Coronavirus Act 2020, provisions relevant to Coroners

Perhaps the most crucial aspect of the guidance to organisations including Care Homes, Prisons, GPs, medical practitioners and NHS Trusts is:

  • a) Covid 19 is an acceptable direct or underlying cause of death for the purpose of the MCCD (Medical  Certificate of Cause of Death);
  • b) Covid 19 as a cause of death is not a reason on its own to refer a death to a Coroner under the CJA 2009, given that the same is a naturally occurring disease and is capable of being a natural cause of death.
  • c) Whilst a notifiable disease, this, however, does not mean that referral to a Coroner is required.
  • d) The Coronavirus Act expands the MCCD window from 14 to 28 days and allows a doctor who was not the attending doctor to sign the MCCD.

What reasons would require referral to a Coroner:

  • a) Medical professional unable to certify on the balance of probabilities that Covid 19 was the cause of death due to unclear cause of death or individual not seen within requisite timescales;
  • b) Concerns about delays in care or provision of care prior to death;
  • c) Failure to provide PPE or otherwise protect employees;
  • d) Deaths that automatically require an inquest to be held e.g. death in state detention;
  • e) Any other reason under the Notification of Death Regulations 2019.

It is anticipated that a) delays in the provision of care b) an inability to provide care c) incorrect diagnosis d) lack of PPE are likely to result in the largest number of referrals to Coroners, which in turn are likely to result in inquest (albeit delayed until Covid 19 is under control).

Examples that have already featured in the press, which may result in inquest are:

  • Misdiagnosis of Covid 19 by GP due to a-typical symptoms;
  • Refusal to accept patients medically fit for discharge back into care home without Covid 19 testing (in the event that death arises from either Covid 19 or another cause for example hospital acquired pneumonia);
  • Protection of care home residents during a Covid 19 breakout;
  • Other potential scenarios could include:
  • Failure to provide front line staff with appropriate or defective PPE;
  • Delay in providing treatment due to the need to adhere to safety guidance e.g. ensuring appropriate PPE in situ prior to commencing treatment;
  • Prioritisation of medical resources e.g. ambulance dispatch, assignment of ventilators;
  • Deployment of those who fall within ‘vulnerable’ categories to front line work e.g. recalling retired NHS workers to work in departments where there is a higher risk of contracting Covid 19;
  • Experimental Covid 19 treatment.

The Court will be alert to the national difficulties encountered and competing interests/advice. Nevertheless, cogent rationale and/or evidence in support of efforts made to reduce risk will be required. As such, if not already in place, Covid 19 risk assessments should be undertaken, Covid 19 policies put in place and, arguably most importantly contemporaneous and detailed records should be made in support of decisions or actions taken. Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal.