Dying at Home: A Fundamental Right
Back to work?
As the country prepares to go back to work (or not), (the government’s policy eloquently summarised here), employers and employees are getting to grips with how to make this transition a safe one for all.
Perhaps understandably, the vast majority of deaths due to COVID-19 will not be referred to the coroner, as they will be due to “the natural progression of a naturally occurring disease”.
Deaths as a result of COVID-19 must be reported to Public Health England (Health Protection (Notification) Regulations 2010). Deaths may also be notifiable to the Health and Safety Executive under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
A report to HSE must only be made when:
- an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
- a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
- a worker dies as a result of occupational exposure to coronavirus.
The HSE website has advice about working safely during the outbreak, as does the government website.
An example of when COVID-19 deaths may be reported to the coroner is where the death may have been contracted in the workplace setting. The Notification of Deaths Regulations 2019 provides:
3. – (1) The circumstances are –
(a) the registered medical practitioner suspects that the person’s death was due to –
(ix) an injury or disease attributable to any employment held by the person during the person’s lifetime.
A number of workplaces are described in the coroner’s guidance, mirroring examples given by the HSE, as places where possible exposure to COVID-19 in the workplace could happen. It will come as no surprise that those working in hospitals, care facilities, laboratories, or on public transport are all envisaged as settings in which a COVID-19 death could be reported to the coroner. However, the legislation does not ring-fence those environments, and others could well be included in the wake of the back to work frenzy. Schools, shops, and factories to name but a few.
In the ordinary way, the coroner then must consider whether or not the duty to hold an inquest is engaged. The coroner’s guidance states that: “if there were reason to suspect that some human failure contributed to the person being infected with the virus, an investigation and inquest may be required”.
This is in line with R (Touche) v Inner London Coroner  QB 1206, which says that a death “may be ‘unnatural’ where it has resulted from the effects of a naturally occurring condition or disease process but where some human error contributed to death.” [para 11].
COVID-19 deaths may therefore require investigation where, for example, it is suspected that failures of precautions in a particular workplace caused the contraction of the illness.
The most hotly reported source of controversy in the guidance is that: “Coroners are reminded that an inquest is not the right forum for addressing concerns about high-level government or public policy […] an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers in the country or a part of it.” However, this seemingly does not extend to situations where a private employer has not provided adequate PPE or a safe working environment.
Of course, there will likely need to be some demonstrable link to a workplace if an employee contracts COVID-19 and subsequently passes away, and a major difficulty as restrictions are eased is likely to be how to untangle the various possible ways in which an individual has been exposed to the virus. However, causation does not have to be fiercely interrogated at the threshold test stage.
A number of individuals returning to work at this time have expressed concern about the safety measures in place for them, and with a second spike of the virus anticipated, we may well see an unwelcome increase in the number of inquests opened relating to COVID-19 deaths “attributable to employment”.