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Legal rights and coronavirus: Update to ongoing inquest guidance and deaths relating to COVID-19

As the coronavirus increasingly affects our daily lives we aim to provide some useful discussions on legal matters during these uncertain times. Following updated guidance from the Chief Coroner for England and Wales, human rights solicitor Merry Varney discusses this guidance and its impact on inquests already opened and those relating to deaths linked to COVID-19.

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Merry is a partner in the human rights department.  She has a particular interest in using the law to protect children, vulnerable adults and patients.  She tweets as @merryvarney
The Chief Coroner has now issued a guidance note for Coroners in England & Wales, published online, which covers both ongoing inquests and reporting of deaths caused by COVID-19. This is aimed at helping Coroners make decisions in relation to deaths and inquests in their jurisdiction, and although this is not a ‘direction’ or ‘order’, Coroners are likely to adhere closely to it.
 
The guidance covers matters which are likely to affect those families for whom their loved one’s  inquest has been opened as well as setting out guidance in relation to how Coroners should respond to COVID-19 related deaths.
 

Ongoing inquests and Coroner’s investigations

 
For currently open inquests, the key aspects likely to impact on bereaved families are:
 
  • No physical hearings should take place unless it is urgent and essential business, and it is safe for those involved to attend Court.
  • Hearings are public and must not take place with the Coroner attending by phone/video – the Coroner must be in Court. The guidance suggests if a member of the family can attend and a member of the press, with social distancing maintained and others attending by video link, a hearing can proceed.
  • Long or complex hearings are likely to be adjourned
  • NHS Trusts may be offered extensions of time to respond to Prevention of Future Death reports
  • New Assistant Coroners may be appointed and takeover less complex inquests.
 
For many of my clients who are currently going through the inquest process, there is some progress which can still be made despite hearings being adjourned, however it is almost certain the increased pressure on Coroners and their staff will lead to delays in their loved one’s inquest being concluded.
 

COVID-19 related deaths

 
Coroners are not required to hold inquests where a death has occurred naturally save for in limited circumstances, including where the death occurred in ‘state detention’, such as a prison or psychiatric hospital.  Coroners are however required to hold an inquest if a death is suspected to be unnatural and the law provides:
 
A death  is typically considered to be unnatural if it has not resulted entirely from a naturally occurring disease process running its natural course, where nothing else is implicated.
 
Where a death has been caused due to COVID-19 the guidance echoes the advice of NHS England and the Chief Medical Officer that COVID-19 is a naturally occurring disease and therefore, unless there is another reason to consider the death may be unnatural, the death will not be referred to the local Coroner.
 
For deaths occurring in hospital it is recognised that the cause of death as COVID-19 may be more straightforward to determine, however for those not in hospital, medical professionals may not feel able to give an opinion on the medical cause of death and although usually this would result in a post mortem being conducted promptly, this again is not likely to be straightforward in the current crisis and could lead to a delay in deaths being registered.
 
Coroners have been invited to “take a pragmatic approach”. This looks likely to mean in practice that in cases where the cause of death is unknown, an inquest may be opened and progress without a post mortem taking place. Coroners are advised to obtain all relevant medical records and other evidence, then it is possible a documentary inquest may be held or, if safe to do so, a public hearing at which the Coroner would need to decide whether it is more likely than not that the death was caused by COVID-19 or the cause remains unknown. Having reached their conclusion, the death will be able to be registered.
 
In some instances there will be good reasons why not holding an inquest where someone died due to COVID-19, or proceeding with an inquest without a fuller investigation of the relevant facts is not appropriate and if you are concerned legal advice should be sought. Unnatural deaths include natural deaths rendered unnatural due to culpable human failure. Where there are allegations that a loved one may have died due to COVID-19 but in circumstances where the death was wholly unexpected and there are grounds for suspecting culpable human failure, Coroners must still fulfil their obligation to hold full and fearless investigations into these deaths and consider any risks which may arise to future lives.
 
Such inquests may be very delayed and many may ultimately end up being the subject of a public inquiry. One of many unknowns at the current time.
 
Bereaved families who are concerned about the circumstances of their loved one’s death should make sure the Coroner is aware of their concerns and may want to consider obtaining legal advice. For those financially eligible, Legal Aid (in the form of Legal Help) is available for inquest advice and in some circumstances, the financial limits can be waived.

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