COVID-19 & The Coroner’s CourtPublished on: 06 July 2021
As the UK approaches another grim milestone of registering nearly 130,000 deaths due to COVID-19*, significant pressures have been placed upon those working for Her Majesty’s Coroner Service nationally, as different regions have had to cope with a considerable increase in death referrals being made.
*128,222 deaths as at 04/07/21, where death occurs within 28 days of a positive test (statistics here).
Under s.1(2) of the Coroners and Justice Act 2009 (“CJA”), a coroner is under a duty to investigate a death where there is reason to suspect that:
- the deceased died a violent or unnatural death,
- the cause of death is unknown, or
- the deceased died while in custody or otherwise in state detention.
Anyone can refer a death to a coroner, but The Notification of Deaths Regulations 2019 set out the duty of medical practitioners to refer certain deaths to the coroner. The Notification of Deaths Regulations 2019 were also relaxed during the pandemic by The Coronavirus Act 2020 to allow a medical practitioner, who attended the deceased within 28 days before death (a new longer timescale, and could be by video call), or attended after death, to register the death in the normal way, by the medical practitioner completing a Medical Certificate of Cause of Death (“MCCD”).
Ordinarily, as COVID-19 is a naturally occurring disease, any death arising from COVID-19 would constitute a “natural death”. Where a person dies a natural death, a coroner has no duty to investigate under s.1(2) CJA because there is no reason to suspect that the death is “unnatural”. This is confirmed in the Chief Coroner's Guidance No. 34 paragraphs 17-23.
However, a coroner’s duty to investigate may be engaged where a natural death becomes “unnatural” due to some form of human error or mistake. The question of what amounts to a death by “natural causes” was considered in the case of R (Touche) v Inner London Coroner  QB. In that case, on 6 February 1999 Laura Touche gave birth to twins, delivered by caesarean section. On 15 February 1999, tragically, she died. She was only 31. She died from a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The medical evidence suggested that had her blood pressure been monitored in the immediate post-operative phase, her death would probably have been avoided.
In Touche, it was held by the Court of Appeal that a death by “natural causes” should be considered an “unnatural death” where it was wholly unexpected and would not have occurred but for some culpable human failing. Lord Justice Brown stated that: “It is the combination of their unexpectedness and the culpable human failing [emphasis added] that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes, though undoubtedly they are, should plainly never have happened and in that sense are unnatural…”
In the context of COVID-19, this will be a fact-specific issue. It is well known that patients could contract the disease whilst in hospital as they are effectively “hubs” where the disease can spread from COVID-19 positive patients. Simply because a patient contracts COVID-19 whilst in hospital does not necessarily mean that the death was “unnatural” – it must be shown that the natural death was turned unnatural by a culpable human failing.
It would be fair to say that during the first wave, hospitals struggled to deal with the influx of COVID-19 positive patients and how to safely treat and isolate them away from the general hospital population, in addition to the difficulties of sourcing lack of personal protective equipment (“PPE”) for staff. Over time, proper PPE was sourced and provided; “Red zones” were set up for high risk patients (such as those who tested positive for COVID-19) who were isolated and treated by staff wearing full personal protective equipment; whilst “green zones” were established to treat patients considered at a medium to low risk.
Take one hypothetical example: Patient A is admitted into hospital with symptoms of stroke and is cared for on a low risk “green” ward. This ward had no COVID-19 positive patients when Patient A was admitted, and Patient A himself was COVID-19 negative upon admission. However, within a week, doctors and patients in the adjacent beds began to test positive and soon after Patient A also tested positive. He subsequently developed respiratory symptoms, and died 10 days later from hospital acquired COVID-19 pneumonitis. An internal investigation carried out by the hospital afterwards confirmed that staff members were not adhering to social distancing and that they were not changing PPE between patients, which caused an outbreak of COVID-19 on the low risk green ward.
In the above scenario, it is clear that the “culpable human failure” was the failure to adhere to social distancing and not changing PPE between patients, thus increasing the risk of staff-to-patient infection.
However, a coroner would then have to consider if that failure was causative – i.e. it was the failure to comply with social distancing and not changing PPE between patients that caused Patient A to become infected from COVID-19, and that he did not contract it naturally from some other means.
The question of causation was discussed in the case of R (Chidlow) v Senior Coroner for Blackpool and Flyde  EWHC 581 (Admin) 12 March 2019 where it was determined that the culpable human failing must have contributed more than “minimally, negligibly or trivially” to the death, on the balance of probabilities.
In Patient A’s case, if it can be proven that the failure to comply with social distancing and not changing PPE between patients more than minimally, negligibly or trivially contributed to Patient A contracting COVID-19 and dying, this would render the death unnatural. In these circumstances, the coroner may then return a narrative conclusion which highlights the failings and causative link, and which would then be recorded for posterity on a Record of Inquest.
In summary, COVID-19 has posed significant challenges to Her Majesty’s Coroner Service – not only due to the sheer volume of deaths being referred, but also complex factual, medical and legal issues which a coroner is required to consider. As the death toll continues to rise (albeit at a slower rate than in 2020), it is likely that these pressures will continue for some time to come.