Where are COVID-19 inquests? Investigating in the shadow of the looming COVID-19 inquiry

According to official government figures, more than 169,000 people have now died in the United Kingdom with COVID-19 recorded on their death certificate and many bereaved families are still waiting for answers as to the circumstances in which their loved ones lost their lives. Despite a significant national vaccination campaign throughout 2021, the numbers dying from COVID-19 continues to increase daily. The country now faces the prospect of uncertainty from the Omicron variant, potentially dampening the vaccination effect and increasing the transmissibility and virulence of COVID-19.

It is the role of the Coroners Service in England & Wales to investigate deaths and open inquests where the circumstances dictate that a full inquiry into a death is warranted. This article seeks to explore whether the key issues and major challenges the country faced from COVID-19 have arisen in the context of inquests; and using that analysis, to then consider what that indicates in terms of future judicial prospects, namely the now certain prospect of a future, far reaching statutory public inquiry.

The issues at the heart of the COVID-19 pandemic

On 2 October 2021 the House of Commons Science and Technology and Health and Social Care Committees published their report (“the Report”) into the UK Government’s handling of the Coronavirus Pandemic. Amongst the issues identified, the Report was highly critical of the Government’s decision to delay a UK lockdown in March 2020, their failures to prioritise social care and to increase testing capacity. The Report calls the delay in implementing a lockdown to pursue the government’s strategy to back herd immunity “one of the most important public health failures the United Kingdom has ever experienced.”

The Report did note some positives, including the success of the UK’s vaccine taskforce and vaccine rollout, the flexibility of the NHS in adapting to the demands of treating the virus and the effective performance of the UK’s Medicines and Healthcare products Regulatory Agency and the Joint Committee on Vaccination and Immunisation. The Report is likely to be the first of several reports which will investigate the UK Government’s handling of the pandemic.

The level of detection of COVID-19 in the Coroner’s Courts

The litmus test for identifying the presence of COVID-19 in inquests is two-fold. We have undertaken an analysis of open-source media and public material, as well as analysis of the Chief Coroner’s website to review the publicly available Regulation 28 Reports, also known as Prevention of Future Death Reports (“PFD Report”). A Coroner has a statutory duty to issue a PFD Report in circumstances when they feel action should be taken by one or more individuals/organisations to prevent a continuing risk of death to others. 

Review of open-source materials assists us to understand the somewhat limited way in which COVID-19 has been explored by Coroners in England and Wales. Poignantly, an investigative article published by The Guardian earlier this year referred to what they described as “rare inquests into UK Covid deaths”. Whilst our research has revealed that there has been a slowly increasing prevalence of COVID-19 deaths being investigated at inquests over the course of this year, open-source materials indicate that where Coroners have sought to tackle issues relating to COVID-19, the issues they have encountered could reasonably be considered to sit on the periphery, or somewhat incidental, to the more central issues identified by the pandemic; some identified examples include the mental health effects of self-isolation and in one instance a death caused when a COVID-19 patient became accidentally disconnected from her ventilator. 

Analysis of PFD Reports issued within the past six months indicates that, whilst COVID-19 does appear within a small number of reports, the issues that are being identified by Coroner’s as presenting a ‘risk of death to future patients’ relate to issues that have been indirectly caused by the effects of the pandemic generally. This includes an increase in issues pertaining to mental health, issues emanating out of a reduction in face-to-face contact with patients and limited communication with families of patients during lockdown, as opposed to looking directly at the issues that have led to more than 169,000 deaths where COVID-19 forms part of the death certificate. There is a clear correlation between what can be gleamed from open-source material and the public record of PFD Reports.

In direct contrast to what appears to be the emerging pattern with respect to PFD Reports and open-source material, the coronial jurisdiction of Greater Manchester South has issued PFD Reports on a national level to NHS England, Public Health England and other authorities expressing concerns over the issues at the heart of the pandemic, such as PPE, shortage of available ambulances and transmission of COVID-19 within care homes. Analysis does however show these PFD Reports to be an outlier to the general pattern emerging, and one of a very small number of examples where the issues laid bare in the Report have been at the heart of an inquest. 

Why is COVID-19 not a prevalent issue at inquests?

It is illuminating that Coroners are not tackling the key issues arising out of the Report within any of the small number of PFD Reports that have been issued. The key question, therefore, when considering the Coroner’s obligations to investigate deaths, is why COVID-19 is not a more pervading issue within the Coroner’s Courts of England and Wales?

At the beginning of the COVID-19 pandemic in March 2020, the then Chief Coroner, HHJ Mark Lucraft QC, issued detailed guidance to all Coroners (Guidance No.34) that, where the medical cause of death was COVID-19, and there is no reason to suspect that any culpable human failure contributed to that particular death, there will usually be no requirement for an investigation to be opened. There may, of course, be additional factors around the death which means a report of death to the Coroner is necessary and there may also be cases where an otherwise natural causes death could be considered unnatural. The Chief Coroner has been clear that the aim of the system should be that every death from COVID-19 which does not, in law, require referral to the Coroner should be dealt with a by way of a medically certified cause of death certificate.

Importantly, and what is likely to be the first high-level written prognosis of a future Public Inquiry, the Chief Coroner issued further guidance (No.37) urging caution against using an inquest to address concerns about high-level government policy. Within this guidance, he stated:

"There have been a number of indications in the judgments of the higher courts that a coroner’s inquest is not usually the right forum for addressing concerns about high-level government or public policy, which may be causally remote from the particular death."

"When handling inquests in which questions such as the adequacy of personal protective equipment (PPE) for staff are raised, coroners are reminded that the focus of their investigation should be on the cause(s) and circumstance(s) of the death in question. Coroners are entitled to look into any underlying causes of death, including failures of systems or procedures at any level, but the investigation should remain an inquiry about the particular death."

"If the coroner considers that a proper investigation into the death requires that evidence or material be obtained in relation to matters of policy and resourcing (e.g. the adequacy of provision of PPE for clinicians in a particular hospital or department), he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued. In making that decision, the coroner should consider his or her own ability (a) to pursue necessary enquiries to gather evidence and (b) to proceed to an inquest, having regard to the effects of the pandemic and the lockdown restrictions."

The combined effect of this guidance has significantly impacted the prevalence of COVID-19 inquests during the pandemic. But why, we ask, would the Chief Coroner consider this should be the case? As outlined above, it is and has never been the role of the Coroner to rule upon or make recommendations with respect to government-level decision making. Such investigation calls for a different forum, with more wide-ranging powers and better funding. It requires the management of complex issues with widely defined terms of reference to focus the course of the investigation. This can only be achieved by a statutory public inquiry. 

Even where the issues to be considered are not national and central government level issues, there is a strong argument that where issues are thematic across a range of services and organisations both regionally and nationally, that a statutory inquiry is a better forum for dealing with them. A statutory public inquiry will enable a more consistent interrogation of the issues and associated with that, the power to issue recommendations at national and regional level, with the necessary powers to monitor the same to ensure that where learning is required that it is properly and robustly undertaken.  

What comes next for investigating COVID-19 deaths?

In May 2021, Prime Minister Boris Johnson announced that he intends to launch an inquiry (“The Inquiry”) into the pandemic, commencing in early 2022. The Inquiry’s Chair and the exact aims and remit, known as the Inquiry’s Terms of Reference, will be announced closer to its commencement early next year. The announcement of the Inquiry Chair is imminent and promised before Christmas 2021. 

The COVID-19 Bereaved Families for Justice Campaign is a group of over 4,000 people who have lost loved ones because of COVID-19. Their website homepage reads “Tens of thousands of people died who didn’t need to die…Help us make sure the Statutory Inquiry into the government’s handling of the COVID-19 Pandemic holds them truly to account”.

In early December 2021, COVID-19 Bereaved Families for Justice published a report which maps out which areas they believe the Inquiry should cover. This report features contributions from a range of major charities, trade unions, and public health experts. In introduction to this report, two of the co-founders of the COVID-19 Bereaved Families for Justice group state that:

“A comprehensive, independent, public inquiry is the only way we can truly understand this pandemic and learn the lessons that will prevent further loss of life in the future. The purpose of this report is to outline the key areas that any inquiry must look at, in order to do justice to the cataclysmic impact of the pandemic. The Covid-19 inquiry could and should be an historic and positive process that helps the UK to reconcile the potentially avoidable high number of deaths sustained during the pandemic. It should also be an opportunity to ensure that through lessons learned, these kinds of tragedies never happen again.”

The Inquiry will be far reaching and will forensically examine what went wrong before and during the pandemic, with it touching upon almost every sector of society and every rung of government. The families will be central to this process whilst the country grapples with how to respond to a fourth wave of COVID-19. It is therefore important that organisations do not become complacent due to the limited coronial focus on COVID-19. Proactive steps to prepare for the Inquiry are essential, with the preservation of documents and materials and the consideration and implementation of learning just two of the critical steps for any organisation involved in the response to take now.