The duty to investigate COVID-19 deaths in the UK care sector
Posted on 22nd June 2020
In recent weeks, high death rates have thrust UK care homes and frontline workers into the forefront of the discourse around the Government’s response to the COVID-19 pandemic. Largely ignored in the early days of lockdown, care homes around the country have become hotspots for the pandemic. In England alone, approximately 30% of the 15,5001 care homes are currently experiencing an outbreak of the virus and experts have estimated that over 20,000 residents have now died2.
Despite the Chief Scientific Adviser reportedly warning3 the Government as early as January 2020 that the care sector in the UK was particularly vulnerable to COVID-19, it has been accused of -neglecting care homes and failing to promptly implement necessary measures. Many of the bereaved families of frontline workers and residents are now looking for answers as to how and why their loved ones were put at risk, despite the Government’s knowledge of the threat posed.
Not all COVID-19 related deaths will require an inquest
COVID-19 as a ‘naturally occurring’ cause of death (or contributory cause) is not alone a reason to refer a death to a coroner under the Coroners and Justice Act 2009.
An inquest will be required when there is reason to suspect that the death was contributed to by culpable human failing4 (for example the provision of negligent care) in addition to the contraction of the virus. Given the very large numbers of deaths of care home residents it is likely that in many cases coroners will take some persuading to open an inquest and may well be inclined to the view – unless evidence is presented to them to the contrary – that such deaths are naturally occurring and do not require an inquest.
For frontline workers who have lost their lives, an inquest will be required where it can be shown that they contracted the virus because of their employment. For these individuals Coroners should adopt a broad approach and should look at all the circumstances, with a suspicion that COVID-19 was contracted during the course of employment providing sufficient grounds5 for an inquest.
The State’s obligation to protect life under Article 2 of the European Convention on Human Rights (ECHR)
Article 2 protects the ‘right to life’. It requires the state to take reasonable steps to protect life in circumstances where there is a real and immediate risk of death as well as setting up safe systems to protect life.
As the government should have been aware, infection control and isolation in care homes is much more difficult than in the controlled environment of a hospital. People receiving social care often have underlying health conditions which render them vulnerable to heightened risks of infection and death from COVID-19. Residents are likely to have additional needs and require particular care and assistance from those looking after them, without which their health will become more fragile. Care workers are in close contact with resident they care for so this presents an infection risk to both the worker and resident. Many care homes rely on agency workers that work across multiple facilities and these workers present a risk of unwittingly spreading COVID-19 to other staff and residents.
There has been extensive reporting of the failures to procure and provide suitable PPE to the care sector6. Responsibility for such failures may lie with individual care homes, local authorities or the central government. Early in this pandemic there was a paucity of care home guidance and once guidance was provided it was less stringent than that of the WHO7. Further, the Government appears to have sanctioned the transfer of potentially infectious patients from hospitals to care homes to make room for NHS beds and failed to roll out widespread testing8 across care homes.
The investigative duty and Chief Coroner’s Guidance on COVID-19 deaths
Article 2 also imposes an investigative obligation where there has been an arguable failure by the state to protect life.
It appears likely that many care home residents and employees will have died from COVID-19 in circumstances where it is arguable that the state has failed to take adequate steps to protect their right to life. This presents a prima facie need for investigation into the death. The current public health emergency does not in of itself undermine the requirement for the state to ensure that it complies with the obligations imposed under Article 2 ECHR to protect life, or indeed to hold an investigation where it fails to do so.
The significance of Article 2 in the context of an inquest is that it imposes additional duties on the state to hold an investigation. It imposes requirements on a coroner to make conclusions identifying failings that have contributed to the death and to make recommendations where necessary for the avoidance of future deaths. Such inquests are often considered to have a wider scope than a non-article 2 inquest. Certainly in relation to COVID-19 deaths there will be grounds for arguing that the circumstances of the death will require an investigation into wider government failings in order to identify where any fault lies.
However it is fair to say there is debate about the appropriate scope of any inquest into COVID19-related deaths, which has been fuelled in part by guidance from the Chief Coroner himself.
On 28 April 2020, the Chief Coroner published guidance addressing deaths from COVID-19 arising from exposure in the workplace9. This guidance outlines the appropriate scope of inquests into these deaths and states that “an inquest is not the right forum for addressing concerns about high-level government or public policy”. It highlights that “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”.
Given the high number of deaths likely to be reported to Coroners as a result of the pandemic, it may be considered prudent of the Chief Coroner to remind Coroners of the limits of their investigatory powers. However, there is a real concern that the guidance may dissuade Coroners from opening inquests and carrying out effective (and article 2 compliant) inquests. There is certainly a danger that an inquest would not be article 2 compliant if it failed to examine the wider circumstances of the death including, in some cases, government policy decisions.
One can foresee situations where representatives of the care homes and other state parties will seek to persuade coroners to close down the avenues for investigation whilst representatives of families will seek to persuade coroners to open inquests and to investigate the wider circumstances. Arguments about whether article 2 is engaged are likely to be complex. There will be additional complexity in relation to privately run care homes as to the extent to the alleged failing is one which engages article 2 including whether it is arguable that any failing is by the ‘state’.
An investigation10 has found that Coroners are already applying the guidance inconsistently across different areas of the UK. Many Coroners are reluctant to open inquests where, for example, a lack of or insufficient PPE may have impacted upon the individual’s death. Consequently many bereaved families are in an uncertain position, with some denied answers as to the circumstances surrounding their loved one’s death.
Inquests vs Public Inquiry
Leading members of both the legal and scientific community11 are calling for a public inquiry into the issues that led to such catastrophic transmission rates and such a high death toll in care homes. We at Hodge Jones & Allen Solicitors support these calls for an inquiry. As the pandemic continues, it is essential that there should be proper scrutiny of all possible government failings which may have contributed to the tragedy in care homes.
When framing his guidance, the Chief Coroner may well have had regard to a potential public inquiry that would fulfil the state’s investigative duty under article 2. However, Johnson’s government has not yet committed to a public inquiry into the coronavirus response, with some Ministers suggesting it is premature to consider the need for such an inquiry until after the pandemic. In the meantime, many bereaved families are left with uncertainty and without recourse to an independent investigation into the death of their loved ones. It would be wrong for Coroners to rely upon the possibility of a future inquiry as a premise to avoid opening inquests into deaths now.