Dr Lucy Hanington and Dr Clare Stapleton, Medicolegal Consultants at Medical Protection, look at doctors’ obligations during the current pandemic

The tragic deaths of healthcare and other frontline workers due to Covid-19 are being reported on an almost daily basis. Meanwhile, concerns continue to be raised about a lack of adequate PPE. Grieving relatives and colleagues have expressed disquiet that these deaths will go unscrutinised, and recent press headlines (“NHS staff coronavirus inquests should not look at PPE shortages, chief coroner says”[i], “Hospitals could be blamed for NHS staff deaths as coroners barred from investigating government failings”[ii]) have added to these worries. It is therefore particularly important that doctors understand the potential avenues for investigation and their obligations.

Should these keyworker deaths still be reported to the coroner?

The Notification of Deaths Regulations 2019[iii] place a duty on a registered medical practitioner to notify the Coroner if he or she “suspects that the person’s death was due to… an injury or disease attributable to any employment held by the person during the person’s lifetime”. It would seem reasonable to imagine that this provision may apply to many keyworker deaths. Irrespective of the Covid-19 diagnosis, the usual reporting rules also apply – for example, the coroner should be informed if there has been an alleged failure in medical care.

Once a death has been reported, the coroner must consider whether he or she has a duty to open an investigation.[iv] This is necessary, for example, where the deceased died a “violent or unnatural death”. A death from a naturally occurring disease such as Covid-19 may be deemed unnatural if some human error contributed to it.[v]

The chief coroner has stated that such human error may take the form of “any failures of precautions in a particular workplace”.[vi] However, he is also of the view that an inquest should not address matters of “high level government or public policy”, which are best considered by means of a public inquiry.

So what does this mean when it comes to PPE? It is useful to review the case of R (Smith) V Oxfordshire.[vii] The discussion in this case centred on whether an inquest could consider whether a soldier had died due to his flak jacket being pierced by a bullet. Lord Philips noted that whilst this would be appropriate, an inquest would not “be a satisfactory tribunal for investigating whether more effective flak jackets could and should have been supplied by the Ministry of Defence”. It is also important to note that individual coroners have a wide discretion in how they conduct the inquisitorial process and, while being mindful of the chief coroner’s comments, it might be possible for an inquest to rightly consider whether issues relating to PPE contributed to an individual death.

Moreover, Article 2 (“the right to life”) of the European Convention of Human Rights deserves consideration in this context. States have an obligation to protect life, and to investigate where there has been a breach. It is not without precedent than an inquest is the route by which the State discharges its investigative duty, particularly in the absence of a public inquiry. Indeed, important actions to prevent future deaths have been identified in this way.

A doctor must discharge their legal duty and report a healthcare worker death to the coroner if they believe that it meets the criteria as set out in the 2019 legislation. It would be for the coroner to then decide how such information is captured and whether an inquest is necessary.

Other reporting requirements

Covid-19 was added to the list of notifiable diseases in the Health Protection (Notification) Regulations 2010[viii] on 6 March 2020.[ix] Deaths of those infected, or suspected to be infected, with Covid-19 therefore need to be reported by the registered medical practitioner attending the deceased to the relevant local authority in writing within three days.[x]

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) should also be considered. Recent guidance from the Health and Safety Executive (HSE) states, in relation to the RIDDOR reporting of Covid-19:[xi]

You must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when:

• an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
• a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
• a worker dies as a result of occupational exposure to coronavirus.

The obligation to report to the Health and Safety Executive (HSE) under RIDDOR lies with the employer. However, doctors may be involved in informing trusts of potentially notifiable deaths and providing details that will inform the decision to refer. Further, doctors who are themselves employers may be subject to RIDDOR.

In summary

Doctors are legally obliged to report certain deaths to the relevant bodies. In fulfilling their obligations, they also have an important role to play in ensuring that the Covid-19 related deaths of healthcare and other frontline workers are appropriately recorded and investigated.

Those who are asked to provide a report for the coroner or prepare a trust statement should consider seeking the advice of their medical defence organisation.