Coronavirus and legal rights: When is an inquest needed?

The current public health crisis due to COVID-19 is affecting almost every aspect of our daily lives. Many families will sadly be coming to terms with the loss of loved ones, often in awful circumstances having been unable to visit relatives while in hospital or care homes. An additional cause of anxiety for some families may be that they feel the circumstances of their loved one’s death have not been fully explained to them or investigated. Especially in the case of deaths outside of hospital, the cause of death may be unclear in the absence of any formal diagnosis of COVID-19. In such circumstances, one of the unwelcome questions which families may find themselves facing is whether their loved one’s death should be reported to the local Coroner and whether an inquest should be held to determine the cause of death.

This blog post aims to provide a summary of the circumstances in which deaths must be reported to a Coroner, what should happen when the cause of death is unknown and when an inquest should be held. These issues were addressed briefly in this previous blog post but will be expanded upon here in the hope of offering some clarity to bereaved families regarding the steps available to them if they feel there may have been failures which caused or contributed to a loved one’s death.

Coroners have a duty to investigate deaths within their area if they have reason to suspect that one of the following applies:

 

If a Coroner investigates a death for one of the above reasons, this does not necessarily mean that an inquest will be held. In cases where the medical cause of death is unclear, the Coroner’s investigation would ordinarily include obtaining a post-mortem report from a pathologist to seek to establish the cause(s) of death. It may be that the Coroner concludes the investigation at that stage if the medical cause of death is established and there is no other reason for an inquest to be held.

During the present crisis, there may understandably be delays in obtaining post-mortem reports and in progressing Coroner’s investigations and inquests (as outlined in the Chief Coroner’s recent guidance discussed in my previous blog post). However, family members should be kept updated regarding the likely timescale for the investigation of their loved one’s death and any Inquest.
 

Deaths caused by COVID-19 will ordinarily be classed as natural deaths and, as such, would not always be reported to a Coroner. However, where a family member has died without being diagnosed with COVID-19, for example at home or in a care home, doctors may often be unable to confirm the cause of death and families may be left with significant uncertainty as to how their loved one died. If the cause of death is unknown, it must be referred to the Coroner.

In addition, in some cases where patients have been diagnosed with COVID-19 and this is stated as the medical cause of death, family members may have concerns about aspects of their loved one’s care and treatment which may have caused or contributed to their death. This could include concerns about the circumstances in which COVID-19 was contracted, such as working without adequate Personal Protective Equipment (PPE) and/or concerns about immediate treatment before the death. Such concerns (and any others of culpable human failure causing or contributing to the death) may render a natural death ‘unnatural’ and as such require an inquest. In such cases, it will be for the Coroner to determine whether she or he considers there is evidence to support the allegations, and the legal test for the Coroner is whether there is reason to suspect a death is unnatural.

While much media attention is focused on government statistics regarding the number of deaths attributed to COVID-19, the reality of individual cases is of course often more complex, with a range of factors potentially contributing to a patient’s death. To date, only a small number of inquests into COVID-19 related deaths have been held and reported on, but a recent flurry of inquests relating to deaths in the Wolverhampton area illustrate this point. The inquests concerned the deaths of no fewer than ten people who had suffered injuries from falls at home or in the community before being admitted to hospital and diagnosed with COVID-19. In some cases, the initial injury was found to have been the primary cause of death with COVID-19 as a contributory factor; in others the virus was found to be the primary cause.

Such cases serve to illustrate the vital function which Coroner’s investigations must continue to play during this crisis. Although resources are extremely stretched (and no doubt will be for the foreseeable future), the importance of ensuring that individual deaths are not seen to be ‘swept under the carpet’ is perhaps greater than ever. Coroners have an ongoing duty to investigate deaths fully and fearlessly, not only to ensure that families’ questions can be answered wherever possible, but also crucially in order to contribute to the prevention of future deaths by learning lessons from mistakes that have been made during this crisis.

On 28 April 2020, the Chief Coroner published further guidance addressing deaths from COVID-19 arising from exposure in the workplace. The guidance came in the context of widespread concerns about the government’s provision of PPE to frontline health and social care workers, following yesterday’s tribute to the workers who have tragically lost their lives during this pandemic. The guidance states, while the vast majority of deaths from COVID-19 will not require an inquest to be held, that Coroners must hold an inquest where they have ‘reason to suspect’ that a death linked to COVID-19 was unnatural. The guidance emphasises that this requirement of ‘reason to suspect’ an unnatural death is a low threshold and illustrates that an inquest may be required where there is “reason to suspect that some human failure contributed to the person being infected with the virus”.

The guidance goes on to address some of the issues which may arise once an inquest is opened in such circumstances. It states that Coroners may need to consider “whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to the death.” Similarly, any “failure of clinical care” may need to be considered where there is evidence that this may have contributed to the death.

However, the guidance goes on to consider the appropriate scope of inquests in these circumstances and reminds Coroners that “an inquest is not the right forum for addressing concerns about high-level government or public policy”. It states 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 in the country or a part of it.” This represents a warning to Coroners that it would not be appropriate, in the context of an inquest, to examine wider systemic issues regarding the adequacy of government policy and distribution of PPE.

Whilst it is perhaps understandable that the Chief Coroner wishes to ensure that Coroners remain aware of the limitations of their role in investigating individual deaths at this time, this aspect of the guidance is concerning to the extent that it may inhibit the investigation of systemic issues in circumstances where they may have contributed to a death. For example, in cases where there is evidence that a death could have been prevented by the timely supply of PPE, it may well be appropriate for a Coroner to seek evidence regarding any systemic failures which delayed or prevented PPE distribution. Indeed, in certain circumstances this would arguably be necessary in order to comply with the requirements of the Human Rights Act (specifically Article 2 of the European Convention on Human Rights) in investigating the death. Investigation of such issues can not only play a significant role in establishing how an individual died, and answering a bereaved family’s questions, but also in fulfilling the Coroner’s function in relation to preventing future deaths.

There have already been widespread calls for a public inquiry into the government’s response to COVID-19, including provision of PPE to frontline workers, and it may be that the Chief Coroner’s guidance anticipates that such an inquiry will be held. Although separate Inquests may well still be held to examine the causes of individual deaths, an inquiry may to some extent remove the burden on Coroners to investigate wider systemic issues as part of their investigation. However, it would appear premature at present  for Coroners to make any decisions based on a public inquiry being held given that no such inquiry has yet been commissioned and (even if it is accepted that one will occur) its terms of reference and further details are unlikely to be clear for some considerable time.

As the Director of INQUEST, Deborah Coles, has said in response to this latest guidance, “[i]n the absence of a public inquiry, Inquests will play a vital role in identifying systemic failings in the protection of frontline workers. This scrutiny is key to learning lessons and holding people to account in order to prevent future deaths.”

If you are concerned about how a loved one has died or simply believe that further investigation is required in order to confirm the cause of their death, it is important to note that you do have rights as a bereaved family member. Firstly, you are of course entitled to expect a full explanation of the circumstances which led to your loved one’s death, in so far as possible, for example from the hospital or care home where they died. If you believe that the death should have been reported to the local Coroner, the doctors who made the decision not to report it should explain to you on what basis this was decided.

You can also contact the Coroner directly to set out why you consider an investigation must take place into your loved one’s death. If you are concerned that an inquest is not going to take place, or if the Coroner refuses to open an investigation, do seek legal advice and do so promptly as time limits may apply to any legal action.

If and when the Coroner does open an investigation, bereaved families should be placed at the centre of it. Close family members, such as parents, children or siblings should automatically be given the status of ‘Interested Persons’ if an Inquest is opened. This means that they are entitled to receive copies of relevant documents and to play an active role in the Inquest process. Even before an Inquest is opened, the Coroner’s service should keep family members informed about the investigation and involve them in the process. You can write to the Coroner to express any concerns you have about the circumstances of your loved one’s death and any questions you would like to be answered. Many bereaved family members of course find this extremely difficult, having recently lost a loved one, and may be unsure about how best to express their concerns. If you are in this position, you should consider seeking legal advice and assistance as lawyers can play a key role in removing some of this burden from family members and in presenting the family’s key concerns and questions to the Coroner.

As mentioned above, if you have concerns about a decision made by a Coroner in investigating your loved one’s death and may wish to challenge it, you should seek legal advice promptly.
 

One of the key concerns which often stops family members from contacting lawyers in these circumstances is about funding. For many families, these concerns may be exacerbated by the current crisis and resulting financial uncertainty. However, it is important to note that legal aid funding may be available to you.

The first form of legal aid funding available for bereaved families is known as Legal Help, which covers legal advice and assistance in relation to an inquest (excluding representation in court). You will be entitled to this form of funding if you fall within the Legal Aid Agency’s strict financial eligibility criteria. In some circumstances (including in particular deaths in custody), the Legal Aid Agency can also agree to ‘waive’ these requirements in order to provide funding to family members who are not financially eligible. As such, it is not entirely straightforward to determine whether you will be able to obtain legal aid funding and you may wish to seek legal advice as to whether you may be eligible.

The second form of legal aid funding which may be available is known as Exceptional Case Funding, which is available in limited circumstances to cover the costs of legal representation in court during an inquest. As above, the Legal Aid Agency can waive its financial eligibility criteria for this type of funding, however it is generally available only for deaths of an individual either in custody or in some other form in the care of the state.

You can find more information about legal aid availability for inquests in our separate blog post.

Even if you do not think that you will be eligible for legal aid funding based on the above, please note that it may be worth seeking legal advice in order to establish whether any other form of funding arrangement can be offered which works for you. In certain circumstances, it may for example be possible to obtain legal advice and representation under a conditional fee (or ‘no win no fee’) agreement or for a capped fee which is agreed in advance.

Finally, during these exceptional times, there is quite rightly widespread gratitude and respect for the extraordinary work which frontline healthcare workers are doing in order to combat the virus and save lives. However, it is as important as ever that bereaved families do not feel unable to voice any concerns or questions they have about the circumstances which led to their loved one’s death. Coroner’s investigations and inquests will continue to play a vital role in this regard and families going through these difficult processes should consider seeking legal advice, especially in circumstances where they feel that their concerns are not being fully addressed.