The duty to investigate COVID-19 deaths in the UK care sector

In recent weeks, high death rates have pushed UK care homes and frontline workers to the centre of discussions around the government’s response to COVID-19.

Largely ignored in the early days of lockdown, care homes around the country have now become hotspots for the pandemic. In England alone, around 44% of UK care homes have experienced a suspected or confirmed outbreak of the virus. While experts have estimated that about 20,000 residents have died across the country.

Despite the Chief Scientific Adviser reportedly warning the government as early as January 2020 that the UK care sector was particularly vulnerable to COVID-19, it has been accused of neglecting care homes and failing to act quickly enough when implementing protective 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

Under the Coroners and Justice Act 2009, COVID-19, as a ‘naturally occurring’ cause of death (or contributory cause), is not alone a reason to refer a death to a coroner.

An inquest will be needed when there is reason to suspect that the death was contributed to by culpable human failing, in addition to the person contracting the virus. An example of this could be the provision of negligent care.

Given the very large numbers of care home resident deaths, it is likely that in many cases, coroners will take some persuading to open an inquest. They may be inclined to the view that such deaths are naturally occurring and do not require an inquest. Unless evidence is presented to them to the contrary, of course.

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 look at all the circumstances.

While doing this, they should take the view that COVID-19 was contracted during the course of employment, providing sufficient grounds 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, setting up safe systems to help do this.

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 make them vulnerable to a greater risk of infection and death from COVID-19.

Residents are also likely to have additional assistance and care needs from those looking after them. Without which, their health will become more fragile.

Care workers are in close contact with residents, so this presents an infection risk to both the worker and patient. Many care homes rely on agency workers, that work across multiple facilities. 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 sector. Responsibility for such errors may lie with individual care homes, local authorities or the central government.

Early in this pandemic, there was a lack of care home guidance. Even when advice was provided, it was far less stringent than that of the WHO.

Furthermore, the Government appears to have sanctioned the transfer of potentially infectious patients from hospitals to care homes, to make room for NHS beds. While doing this, they have unfortunately failed to roll out widespread testing 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 may have died from COVID-19, in circumstances where it could be argued that the state has failed to take adequate steps to protect their right to life.

This presents prima facie need for investigation into those deaths. The current public health emergency does not stop the state having to comply with the obligations imposed under Article 2 ECHR to protect life, or 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. That means a coroner must draw conclusions that identify failings which have contributed to the death and to make recommendations where necessary, to help avoid future deaths.

Such inquests are often considered to have a wider scope than a non-article 2 inquest. In relation to COVID-19 deaths, there is grounds for arguing that the circumstances of the death will require an investigation into wider government failings. This will be to help identify where any fault lies.

However, it is fair to say there is debate about the appropriate scope of any inquest into COVID-related deaths. These arguments have been fuelled, in part, by guidance from the Chief Coroner himself.

Viewpoints on COVID-19 deaths from the Chief Coroner

On 28 April 2020, the Chief Coroner published guidance addressing 10 deaths from COVID-19, arising from exposure in the workplace. This 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”.

The guidance also 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 wise 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. This includes, in some cases, government policy decisions.

It is possible that situations where representatives of the care homes and other state parties will seek to persuade coroners to close down the avenues for investigation. At the same time, representatives of families may look to persuade coroners to open inquests and investigate the wider circumstances.

Arguments about whether Article 2 is engaged are likely to be complex. Even more so when it comes to private care home investigations.

This may be down to disagreements over extent to which alleged failings are related to Article 2, including whether failings are caused by the ‘state’, or the private care home themselves.

A private investigation has found that Coroners are already applying the guidance inconsistently across different areas of the UK. Many 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 the legal and scientific community are calling for a public inquiry into the issues that led to catastrophic transmission rates and high death tolls in care homes.

We at Hodge Jones & Allen 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, the government has not yet committed to a public inquiry into the COVID-19 response. Some Ministers are suggesting it is premature to consider the need for such an inquiry, until after the pandemic has ended.

In the meantime, many bereaved families are left with uncertainty and without a full, 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 way to avoid opening inquests into deaths now.