“Doctor, cast the water of my land, find her disease, and purge it to a sound and pristine health…” Macbeth, Act V, Scene III

Introduction

The difference between the Scottish and English approaches to managing coronavirus appears to be growing. Guidance from the Chief Coroner for England and Wales, HHJ Mark Lucraft QC, indicates that unless there are other factors, deaths caused by or suspected as being caused coronavirus don’t need to be reported to coroners; and deaths from coronavirus contracted in the workplace “may” be reported to the Coroner, but not necessarily resulting in an investigation. 

By stark contrast, Scotland’s Lord Advocate, Sir James Wolffe QC, has announced (here) that all confirmed or presumed COVID-19 deaths of residents in care homes or people who may have contracted the virus in the course of their work will be investigated by the Crown Office. The reasons for this difference of approach appear to lie in the different statutory remit of each office (Scotland doesn’t have inquests or coroners). However, the outcome might strike many as resulting in an arbitrary postcode lottery.

Ministry of Justice/ONS (14 May 2020) here

On 14 May 2020, the most recent Coroners Statistics Annual Bulletin was published. At a time when data on death dominates the news, the Bulletin may have passed inquest practitioners by. However, the Bulletin remains a useful guide on the workload of coroners around the country and can be used to identify possible trends for the future.

It is important to note that whilst the Bulletin was published in May 2020, it covers the period from January to December 2019 and therefore it does not cover any Covid-19 related deaths. Such deaths will not be included in the Bulletin until its next publication date in May 2021.

Key figures from the 2019 Bulletin:

  • 40% of all registered deaths were reported to coroners in 2019;
  • Overall deaths in state detention are down 7%, driven largely by a 16% fall in deaths of individuals under the Mental Health Act 1983;
  • Overall, conclusions of suicide increased by 11%;
  • Average time taken to process an inquest rises to 27 weeks.

CHIEF CORONER’S GUIDANCE No. 37. 28 April 2020 here

The Chief Coroner has today released his further guidance to coroners during the COVID-19 pandemic.  The Chief Coroner sets out when a report to a coroner must be made and when an inquest will and will not be required into a death from what is a naturally occurring disease.  

He also puts a shot across the bows of anyone who thinks that these future inquests will be the right forum for examining high level decisions about the supply and provision of PPE to our front line health care workers and care staff: 

“An inquest is not the right forum for addressing concerns about high-level government or public policy”.   

The key points of the Chief's Guidance are set out below:

R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin) (judgment here) 7 April 2020.

The High Court has emphatically supported a Coroner’s decision not to record admitted, non-causative failings in an Article 2 inquest conclusion. The court’s observations about the proper content of a Record of Inquest (ROI) will be thought-provoking for all Coroners and practitioners particularly as they (i) imply judgmental conclusions on the ROI may be inappropriate (ii) narrow the import of the Tainton decision to jury cases and (iii) elevate the Coroner’s findings of fact and pre-conclusion reasoning to a level that may have significant repercussions for how Coroners close their proceedings in future.

The steep increase in the number of deaths occurring outside hospital during the Covid-19 pandemic brings a concomitant rise in the number of deaths requiring verification in the community.

Attending those who have died in the community clearly puts health care workers at increased risk of Covid-19 infection themselves.  In response the NHS has put out guidance (here) suggesting that GPs or another suitably qualified health care professional might now verify death remotely by video, or even by telephone, if family members are happy to support that verification process by, for example, reporting down the phone the absence of movement of the chest wall.

Unsurprisingly that guidance (also now promulgated by other organisations)[1]  has resulted in many calls to coroners and the ambulance service (particularly in London) from GPs and funeral directors who want clarification about the rules or advice about how to pronounce life extinct.

In response, London’s Senior Coroners, who have reservations about the NHS Guidance, have today produced a four-page document (here) setting out their agreed view of the death verification requirements, for the benefit of affected people in the London Area. They acknowledge that different approaches are being taken elsewhere. [2]

The Chief Coroner's Guidance on COVID-19

The Chief Coroner's Guidance on COVID-19 (No.34) here was issued on 26 March 2020 and reinforced on 27 March 2020 with further guidance (No.35) here. It is helpful to be read in conjunction with the Chief Coroner’s COVID-19 Note #3 here. It is intended to be the main piece of guidance for all coroners.

The message overall is that coroners have discretion and judgement to exercise in various respects, which they can be expected to exercise in a pragmatic way taking account of the effects of the pandemic.

However, it also makes clear that a Coroner’s Court should be open for “urgent and essential business only” and further, “absent a coroner a court is not a court”.

The reinforcement of this latter aspect tends to suggest approaches have been made to the Chief Coroner, following his Guidance no34, questioning the need for a coroner to be physically present in a Coroner's Court in order to conduct a hearing.

The response is a clear and unequivocal … yes.

The Bishop of St Albans, Dr Alan Smith has introduced a Bill aimed at using the coronial system to record where gambling addiction has contributed to suicide.

If the Coroners (Determination of Suicide) Bill [HL] (HL Bill 32) is passed, then where the inquest's conclusion is suicide, the coroner or jury will be required to record an opinion “as to any factors which were relevant to the death[1]

The one factor which the coroner or jury must consider under the proposals is whether the deceased had an addiction to gambling, no other specific factors are identified.[2]

Dr Smith is motivated in bringing forth the Bill having “met far too many families whose lives have been destroyed by the loss of a loved one, often young adults who have their entire lives ahead of them.” Indeed, a quick web search for “gambling” and “suicide” reveals pages of search results detailing a litany of tragic deaths, mostly of young men.

R (Lewis) v Senior Coroner for North West Kent [2020] EWHC (12 February 2020) judgment here

A coroner who chooses not to give reasons for a controversial decision may as well hand the aggrieved interested person their acknowledgement of service for the forthcoming judicial review claim along with the record of inquest.   Giving reasons is a fundamental aspect of judicial decision making: the person losing an argument in court is entitled to know not only that he has lost but why.

In this case a psychiatrically unwell patient detained in a forensic secure unit had died from malnutrition. The senior coroner refused to leave neglect to a jury without giving any reasons for deciding not to do so.  The senior coroner’s decision was flawed on two counts: not only due to an absence of reasons, but, as the Divisional Court found, because it was also not reasonable on the evidence to fail to leave a finding of neglect open to the jury in the “somewhat disconcerting” circumstances of the case.

Namiq v Manchester University NHS Foundation Trust  [2020] EWCA (14.2.20) judgment here

Readers of this blogger's generation will already know that the answer to the Meaning of Life is 42.  The Court of Appeal have now addressed a question too momentous for even Douglas Adams to tackle - what is the meaning of death? [1]

Last month in Manchester University NHS FT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) here Lieven J was asked to consider the heart-rending issue of whether ventilation should be withdrawn from a severely brain injured baby. (see our related blog here).

The Supreme Court had already confirmed in a number of appeals (including those launched on behalf of both Charlie Gard and Alfie Evans), that the Judge must apply the best interests tests in serious medical treatment cases.  However, here the Trust’s position was that the child was in fact already dead and that there can be no best interests assessment of a person who is no longer legally alive.   Hence, said the Trust, the Court’s function in Midrar’s case was to assess whether the relevant clinical testing had established that he was brain stem dead.   In contrast, in addition to arguing that the brain stem testing had not been properly carried out, Midrar’s parents argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating his body should be removed.

One difficulty was that, despite clinicians and paramedics regularly declaring life to be extinct, there is no legal definition of death in any statute.  Death is clinically and not legally defined.  Although the common law position was considered in 1993 when the House of Lords reviewed the position of Tony Bland who had been in PVS for three years after being caught in the Hillsborough crush. Although Tony Bland had no consciousness his brain stem was still functioning, which controlled his heartbeat, breathing and digestion, and as such, said their Lordships, he was not dead.  Indeed, the medical consensus that death was to be diagnosed by an absence of brain stem function was expressly endorsed in Bland[2]

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin) 12.9.19 (judgment here)

Regular readers of our blog will recall this case dealing with the tricky issue of whether Art 2 obligations are engaged when a person dies whilst receiving psychiatric care in the community. (See the earlier blog here)

In Lee v HM Assistant Coroner for Sunderland HHJ Raeside QC produced a complex extempore judgement that provided the very simple answer: you need look no further than Lord Dyson's explanation at paragraph 34 of Rabone, when he analysed the potential engagement of the operational Art 2 duty by reference to the threefold factors of assumed responsibility, vulnerability and risk

However the judge deftly sidestepped answering the question on the particular facts of the case before him and instead remitted the case back to the coroner to decide.  HM Assistant Coroner for Sunderland has now had a second bite at the cherry and produced an elegant set of reasons for her finding again that Art 2 was not engaged.  Although, as a decision by a coroner, the reasoning has no precedential weight, those reasons attached here are well worth reading for their detailed exposition of the application of Art 2 to inquests and a clear example of how to apply the indicia in Rabone to the facts of a particular case.