Every doctor responsible for issuing a “Medical Certificate of Cause of Death” (MCCD) has a legal obligation to notify a senior coroner of a death if “the registered medical practitioner suspects that the person’s death was due to … disease attributable to any employment held by the person.” As has already been pointed out in the columns of this journal and elsewhere this obligation remains unchanged following the Coronavirus Act 2020.  

The covid-19 pandemic has, however, changed the context in which the law is applied. In the period up to 7th May 2020, at least 190 health and social care workers in the United Kingdom had died from this disease, amid mounting concern that this group of workers is especially vulnerable due to occupational exposure due to widely reported failures in the supply of personal protective equipment (PPE). 

In these circumstances the chief coroner issued new guidance on “covid-19 deaths and possible exposure in the workplace” on 28 April 2020 that lowers the threshold for suspicion that a death from covid-19 was attributable to employment. This “low threshold test; [is] lower even than a prima facie case and requiring only grounds for surmise.” In other words, the notifying doctor would not need to assess whether the person who died had been placed at particular risk due to lack of PPE or some other failing. The fact that they were a health or social care worker in an environment where they were exposed to infection would be sufficient for the doctor to “surmise” that the infection was attributable to their employment. Unfortunately the omission of mention of this obligation to notify the coroner in key publications including NHS guidance issued after the start of the pandemic might have erroneously led doctors to believe that notification of work related deaths to the coroner had been negated by the Coronavirus Act. Hopefully the most recent publications, but especially the Chief Coroner’s guidance should require the retrospective notifications of the covid-19 deaths of workers where this has not already occurred.

Notification to the coroner is, however, only the first step in identifying issues that require to be acted on. The section in the Chief Coroner’s guidance that coroners need not investigate policy failures relating to provision of PPE in deaths of NHS staff has provoked considerable controversy. Its rationale, albeit contested, is that “Coroners are reminded that an inquest is not the right forum for addressing concerns about high-level government or public policy.”

However, what risks being overlooked is that this does not preclude the coroner from examining whether there were individual failings in a particular case which, if later found to be widespread, do point to a need to consider broader issues of policy. Coroners can send a “Report on Action to Prevent Future Deaths” (PFD) as set out in regulation 28 of the Coroners (Investigations) Regulations 2013 if they judge that action must be taken to prevent future deaths. It is sent to any organisation or individual who the coroner judges has the power to take that action. A 2018 study showed how these reports could be collated to identify common failings in medication administration, while another focussed on the PFD alerts in respect of one specific pharmaceutical. The publications of the Courts and Tribunal Judiciary revealed 2241 PFD reports published in the five years from the 1st May 2015. These PFDs compelled addressees such as the Secretary of State (for Health and Social Care) and the Chief Executive of the National Institute for Health and Care Excellence (NICE)  to respond by law within the statutory time limit of 56 days unless the coroner grants them an extension. These PFD reports have also addressed other circumstances where in the judgement of the coroner additional protection would have prevented death and where the Chief Executive of the Health and Safety Executive (HSE)  was required to respond. The PFD guidance, which was last updated seven years ago, is a valuable document to understand the scope afforded to coroners. 

While a coroner’s inquiry is characterised by both strict forensic scrutiny and public transparency, its course can be delayed, especially during a pandemic. The chief coroner therefore also highlighted the role of reporting Covid-19 cases to the HSE as provided for in the Reporting of Injuries Diseases and Dangerous Occurrences Regulations (RIDDOR). This was an important reminder as employers, with whom the legal responsibilities lie, are warned that failure to report a dangerous occurrence, or disease (especially death), in accordance with the requirements of RIDDOR, is a criminal offence, and may result in prosecution. Crucially, employers can be reassured that such statutory reporting is not an admission of liability. Since RIDDOR reports can be triggered by disease or even an exposure characterised as a ‘Dangerous Occurrence’ they could yield a practical conclusion and preventive recommendation much earlier than a PFD report. Since there is a need to respond quickly and to learn even quicker so as to contend with the pandemic, if employers have any doubt they should err on the side of reporting while following relevant HSE guidance

The UK has a long standing and proud history of legislation to protect the lives of workers—notably the Health and Safety etc at Work Act 1974. Our purpose here is to focus on those laws that permit lessons to be learnt and applied after tragic workplace deaths or morbidity. In due course research in occupational epidemiology will answer some questions about occupational morbidity and mortality arising from exposure to covid-19. Investigations of wider questions (e.g. PPE policy failures in deaths of NHS staff) might however be expedited by further guidance on PFDs, including prospects for pursuing PFDs at a national level so as to learn lessons and take action to save lives.  

Raymond M Agius, Emeritus Professor of Occupational and Environmental Medicine, The University of Manchester

John FR Robertson, Professor of Surgery & Consultant Surgeon, University of Nottingham. 

Marcia Stewart, Lay member, Social Care professional & emeritus academic, De Montfort University 

Denise Kendrick, Professor of Primary Care Research and General Practitioner, University of Nottingham. 

Herb F Sewell, Emeritus Professor of Immunology & Consultant immunologist, University of Nottingham.

Martin McKee, Professor of European Public Health, London School of Hygiene and Tropical Medicine  

Competing interests: None declared.