Chief Coroner’s Guidance No. 37 - "COVID-19 Deaths and Possible Exposure in the Workplace "  amended on 1st July (here)

It is not often that guidance from the Chief Coroner excites the twittersphere.  But the original version of this Guidance #37, issued on 28 April (see our earlier blog here), managed to generate much comment from the public, Doctor’s Associations (here) and even MPs regarding the approach to considering shortcomings in the provision of PPE. The Chief Coroner puts out guidance, he does not make statements of policy. Some seem to have even misunderstood his guidance to be advocating that healthcare workers’ deaths should not be referred to a coroner.[1]. Nevertheless, many commentators will feel vindicated in that the Chief Coroner has now updated his earlier Guidance which now focuses more on the individual judicial discretion of each coroner.

Re Ketcher and Mitchell, [2020] NICA 31 (judgment here) 3 June 2020.

There has rightly been increasing emphasis since the Mid Staffs inquiry and other high media profile investigations, such as Hillsborough, on the responsibility of public bodies to be open and candid in all of their dealings with the Coroner.  Whilst legislation falls short of imposing a statutory duty of candour in respect of inquests, the expectation many will have of our public bodies is that they will do all they can to assist the coronial investigation in ascertaining the truth of how a person came to die, regardless of any reputational consequences or fear of future litigation.  Indeed the Ministry of Justice has recently published the Government's protocol that sets out the principles it expects to guide the behaviour of Government Legal Department lawyers and those they instruct at inquests. This includes an exhortation to "approach the inquest with openness and honesty, including supporting the disclosure of all relevant and disclosable information to the coroner" which they suggest should be a 'model of behaviour' for all interested persons. (see here at Annexe A)

Against that background this recent decision from the Northern Irish Court of Appeal may seem rather out of kilter with the laudable aim of openness.  Although expert evidence obtained solely for the purpose of an inquest will not, say the NI CA, attract litigation privilege, any compulsion to disclose such a report will, in the view of the Court, be highly likely to be unreasonable as being contrary to the public interest in encouraging interested persons to investigate and prepare their own cases. 

Notably however, the context here was an expert report obtained on behalf the bereaved families in an Art 2 inquest – it is more difficult predict whether,  if it were a public body seeking to supress relevant evidence in an Art 2 inquest, the public interest balance would still be drawn in the same place.

R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] EWCA Civ 738. (judgment here)

The Court of Appeal has ruled that the state's investigative obligations under Article 2 ECHR do not arise where someone lacking capacity and deprived of their liberty dies of natural causes.The state’s obligations under Article 2 had not been triggered in this case by the mere fact of vulnerability and that the deceased was deprived of her liberty in a care home pursuant to a standard authorisation under DOLS  [1].

Facts

Jackie, who had Down’s syndrome and learning disabilities, and so was unable to care for herself, had fallen ill at her care home in the days before her death.  The care home provided only personal (not medical) care but, when Jackie’s condition worsened, she had refused to go to hospital and had been permitted to remain at the home overnight.  Jackie’s condition worsened further and she was eventually taken to hospital where she died as a result of a perforated gastric ulcer, peritonitis and pneumonia.  At her inquest her family criticised (inter alia) the lack of a protocol at the care home for admitting Jackie to hospital in spite of her refusal.  However, the Coroner ruled at the close of evidence that Article 2 ECHR was not engaged, such that the “how” question for the jury to answer under section 5(2) of the Coroners & Justice Act 2009 had its narrower meaning of “by what means” instead of “by what means and in what circumstances”. 

The jury who were not permitted to consider any failings on the part of those caring for Jackie returned a conclusion of natural causes. Jackie's mother sought judicial review of the coroner's decision, when that application failed she appealed. 

CHIEF CORONER’S GUIDANCE No. 38:  REMOTE PARTICIPATION IN CORONIAL PROCEEDINGS VIA VIDEO AND AUDIO BROADCAST

On the 11th June 2020, The Chief Coroner published his Guidance No 38, headed ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’. (here)

Just as the Crown Courts start to address the difficult issue of holding jury trials once more, so the Chief Coroner has sought to encourage Coroners, Practitioners, Interested Persons, Witnesses, the Press and Public as to how Inquests can or may be held as the lockdown is released, albeit gradually, and with social distancing maintained.

The current pandemic has increased the need to use technology to facilitate remote participation in hearings. Whilst it is the Chief Coroner’s view that partially remote hearings should take place wherever possible if the technology allows, it is in the interests of justice and its use must be consistent with the administration of justice.

A Coroner must be physically present in Court to hold an Inquest

It may come as a surprise to everyone to learn that, unlike judges sitting in civil and criminal jurisdictions, Coroners must be physically present in a Courtroom to hold an Inquest. Civil and Criminal judges have been able to hold remote hearings from their kitchens, attics and even gardens during the pandemic but nothing can be conducted by a Coroner acting remotely from their office or home.

If a Coroner has to be physically present in Court to hold an Inquest, who else does?  Can there be a mix and match or as the current phrase in Coronial Circles gains traction, has the Chief Coroner heralded the start of ‘Harlequin Inquests?’ [1]

“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.