One inevitable but nevertheless upsetting consequence of the COVID-19 pandemic is that we are seeing a substantial increase in the recorded deaths for this time of year in comparison with the average between 2015 and 2019 in England and Wales. But what happens when someone dies due to COVID-19 and when should the Coroner investigate?
What happens when somebody dies as a result of COVID-19?
When somebody dies, a doctor will complete a Medical Certificate of the Cause of Death this is known as an “MCCD”.
COVID-19 can be recorded on an MCCD as either a direct of underlying cause of death.
COVID-19 has also been listed as a notifiable death under the Health Protection (Notification) Regulations 2010, which means that a death due to COVID-19 must be notified to Public Health England. This does not mean that it must also be notified to the Coroner.
When does the Coroner get involved?
COVID-19 is considered to be a naturally occurring disease. On its own, a death due to COVID-19 is not a reason for the death to be referred to the Coroner under the Coroners & Justice Act 2009. A death due to COVID-19 is generally recorded as a natural cause of death.
However, as set out under the Coroners & Justice Act 2009 the Coroner does have the power to investigate certain deaths, including those which may be due to COVID-19, where certain circumstances dictate that the Coroner should investigate.
What are the Coroners powers to investigate a death?
The powers given to Coroners to investigate a death are contained in Section 1 of the Coroners & Justice Act 2009. According to this section, the Coroner has a duty to investigate a death: if he has reason to suspect that:
(a) the deceased died a violent or unnatural death,
(b) the cause of death is unknown, or
(c) the deceased died while in custody or otherwise in state detention.
As mentioned above, COVID-19 is a naturally occurring disease and therefore on its own, would not fall into any of the above categories to warrant investigation by the Coroner. A COVID-19 death can be dealt with by completion of the MCCD as a natural cause of death.
However, there could be additional factors surrounding the death which mean that the Coroner would need to investigate.
When might a death from COVID-19 need to be investigated by the Coroner?
When considering if a death from COVID-19 should be investigated by the Coroner the death will need to fulfil one of the above reasons to investigate in Section 1 of the Coroners & Justice Act 2009. One of the reasons is if the death is considered to be an unnatural death.
A death due to COVID-19 would also need to be investigated if the deceased died in state detention e.g. prison or a high security psychiatric unit.
Equally, if the cause of death is unknown, then the Coroner may investigate and later establish that the cause of death was due to COVID-19, which may result in the conclusion of a death due to natural causes depending on the circumstances surrounding the death.
So when a death due to COVID-19 might be considered to be unnatural?
We already know that COVID-19 can be recorded as a natural cause of death. According to the Ministry of Justice guidance (updated in March 2020 to cover COVID-19) a death should be considered as unnatural in line with the Notification of Deaths Regulations 2019 if “it has not resulted entirely from a naturally occurring disease process running its natural course, where nothing else is implicated”.
An example of such a situation is given in the Ministry of Justice guidance of a diagnosis of mesothelioma caused due to washing contaminated overalls.
Reasons that a death due, or contributed to, from COVID-19 could be considered to be unnatural could include work related exposure to a COVID-19.
Work related exposure to COVID-19
Occupational exposure to biological agents is covered by the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). This regulation requires that where somebody is injured or dies due to exposure to a biological agent at work, a report should be made to the Health & Safety Executive.
References to a biological agent in these regulations can include the virus which causes COVID-19. Therefore, any death or injury as a result of exposure to the virus at work must be reported using the RIDDOR reporting procedure.
According to the Notification of Deaths Regulation 2019 (Regulation 3(1)(a)) that when a death due to an injury or disease is attributable to any employment held during a person’s lifetime, it is a death which should be investigated by the Coroner.
When investigating the death, the Coroner will give consideration to any human or clinical failure which has led to the deceased’s death. The Chief Coroner’s guidance (guides 34-37) however makes it clear that Coroners should not stray into addressing concerns “about high-level government or public policy”. The investigation could therefore consider the failure to provide adequate PPE or procedure in the workplace, but not on a public policy level.
Should the death of someone with mesothelioma who also had COVID-19 be reported to the Coroner?
When someone dies due to mesothelioma their death is referred to the Coroner, as their death was due to a disease attributable to employment; or if for example they have had secondary or environmental exposure to asbestos which has resulted in the diagnosis of mesothelioma, then their death is considered to be unnatural and therefore capable of investigation by the Coroner.
If someone with mesothelioma develops COVID-19 and subsequently dies due to its contribution to their ill-health, then the Coroner should still investigate as the mesothelioma is still a cause or contributing factor to their death. Indeed, those individuals with a diagnosis of mesothelioma are considered to be at a higher risk of COVID-19 and are on the Government’s list of extremely vulnerable persons.
The Coroner’s Investigation
The process of investigating a death and the role of the Coroner is considered in great detail here.
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