COVID-19: Inquest FAQs28/04/20
The COVID-19 pandemic presents a range of significant issues for Coroners' Courts and organisations which have ‘Interested Person’ status. Coroners' Courts face similar challenges to other courts and tribunals in relation to ensuring the health and safety of court users. Of course, many organisations with ‘IP’ status will be under significant pressure delivering medical and social care at a time of unprecedented need. Frontline clinical staff will be required to prioritise direct patient care and many other staff may find themselves urgently redeployed into crucial support roles. As a result, organisations may understandably find it very difficult to make staff available to draft statements and attend court to give evidence (remotely or otherwise).
We have compiled these FAQs for organisations in the healthcare, social care, emergency services and housing sectors regarding how Coroners are approaching inquests in the current climate and how demands on organisations and their professional witnesses can best be managed.
Are inquests being adjourned?
The Chief Coroner issued ‘Guidance No 34: Chief Coroner’s Guidance for Coroners on COVID-19’ on 26 March 2020 and ‘Guidance No 35: Hearings During the Pandemic’ on 27 March 2020, which contains practical steps to be considered with respect to holding inquests and other hearings. This guidance adopts the advice already issued by the Lord Chief Justice in relation to all courts and tribunals. In short, no physical hearings should take place unless they involve urgent or essential business and appropriate social distancing can be ensured in the court and the court building. The Chief Coroner acknowledges that in many jurisdictions it will be difficult to ensure appropriate social distancing at court.
We are aware that some Coroners' Courts have experienced individual circumstances, such as building closures and reduced staff numbers, which have resulted in all inquests being adjourned until further notice. Other courts are adjourning inquests on a case-by-case basis or reviewing cases to determine if any are appropriate to proceed as documentary inquests. Please contact the Capsticks Inquests Team if you require any assistance with determining how the approach of your local Coroner’s Court may impact on upcoming inquests involving your organisation.
What is the approach to jury inquests?
Even before the release of the Chief Coroner’s Guidance No 34, he had already issued a ‘note’ advising that jury inquests which are due to start between 31 March and 28 August and are ‘of any significant length’ should be adjourned. In reality, this is likely to mean that most jury inquests will be adjourned to after 1 September.
What about inquests without a jury?
Long and complex non-jury inquests often involve large numbers of court users, including the bereaved family, the Coroner and their staff, lawyers, witnesses, the press and the public. In such circumstances, it would potentially be difficult to ensure adherence to government guidelines regarding social distancing and COVID-19. Long and complex inquests which are due to begin between 31 March and 28 August are likely to be adjourned. In the most part we are seeing inquests being re-listed from October 2020.
How are Coroners dealing with clinical staff who are called to give evidence?
The Chief Coroner’s Guidance No 34 states that Coroners should recognise the primary clinical commitments of medical and other healthcare staff in a time of unprecedented pressure on health services. In practice, this may mean avoiding or delaying requests for statements and accommodating clinical commitments if clinicians are to be called as witnesses.
In our experience, Coroners have been willing to agree that inquests requiring the attendance of frontline clinical staff be adjourned for the time being and the guidance from the Chief Coroner certainly supports this approach. The new guidance also encourages Coroners to consider proactively reviewing outstanding PFD responses and offer extensions where appropriate and to take an accommodating approach to requests for extensions from healthcare organisations. However, the Chief Coroner’s guidance makes it clear that each Coroner retains judicial discretion on whether an individual case can proceed.
How is technology being used to hold hearings in the Coroner’s Court?
Our experience has been that many Coroners are open to using technology to enable pre-inquest review hearings to go ahead, if they have the appropriate technology. We have made several successful applications to hold pre-inquest review hearings by telephone. In some cases, Coroners have also agreed to investigate opportunities for less complex inquests to be held using video conferencing facilities in order to avoid clinical witnesses coming to court to give evidence and enable bereaved families to participate remotely, but this has not yet been agreed to. This is a new and evolving way of working for many Coroners and their staff.
Whilst IPs and their representatives can appear at hearings by telephone or videoconferencing, the Chief Coroner has made it clear in updated guidance issued on 27 March 2020 (Guidance No 35 – Hearings During the Pandemic), that the Coroner needs to be physically present in court for all hearings. There are longstanding legislative provisions which allow for hearings to go ahead without a judge physically present in the civil courts, however, these provisions do not cover the Coroner’s Court and the emergency legislation does not change this position.
Given the current situation with respect to court closures and reduced staffing in some jurisdictions, this is likely to mean that some Coroners’ Courts will not be in a position to proceed with inquests and pre-inquest reviews via telephone or videoconferencing, even where IPs are able to participate remotely.
The Capsticks Inquests Team is working closely with the courts and our clients to ensure that where technological solutions are available, they are appropriate for individual cases. Please get in touch with us if you have any questions or concerns about the use of technology for hearings in the Coroner’s Court.
Do deaths related to COVID-19 need to be reported to the Coroner?
COVID-19 is a notifiable disease under the Health Protection (Notification) Regulations 2010 and therefore must be reported to Public Health England. However, referral to a Coroner is not required in all cases and COVID-19 is not on its own a reason to refer a death to the Coroner.
The Coronavirus Act 2020 gained Royal Assent on 25 March 2020 and the sections relevant to inquest came into force on 26 March 2020. The Act states that COVID-19 is not a notifiable disease for the purposes of the requirement to hold a jury inquest.
Have there been any changes to certification of death?
The sections of the Coronavirus Act 2020 relevant to certification of death came into force on 26 March 2020. With respect to when a report to the Coroner is required, the new legislation extends the time period in which the deceased must be seen by the certifying medical practitioner from 14 days to 28 days before death. The new legislation also allows for a doctor other than the attending doctor to sign the MCCD.
COVID-19 is an acceptable direct or underlying cause of death for the purposes of completing the MCCD.
If you would like to discuss any points raised in these FAQs further, please contact Georgia Ford or Philip Hatherall.