Coronavirus & Coroners Inquests - what are the risks to companies?

Last week saw the Chief Coroner publicise further guidance to Coroners across the Country which is intended to assist them when deciding whether to commence an investigation into a COVID-19 related fatality in the workplace.

Whilst, in the vast majority of cases, an inquest will not be held, when a Coroner does decide to carry out an investigation, this has the potential for serious repercussions which organisations need to be aware of.

When are Coroners likely to hold an inquest?

Where workplace fatalities are concerned, the question of whether a Coroner is able, by law, to open an investigation will depend on whether there is reason to suspect that the deceased suffered a 'violent or unnatural death'. Therefore, with COVID-19 being regarded as a 'naturally occurring disease', it is highly unlikely that a Coroner would open an investigation where this, alone, is the suspected cause of death. However, if the suspected cause of death is COVID-19 and there is also reason to suspect that some human error contributed to the death, then Coroner's are much more likely to begin an investigation. The latest guidance provides examples of when this might occur. For example, where failures of precautions in the workplace caused the deceased to contract the disease and so contributed to death. Similarly, an investigation is likely where there is reason to suspect that some failure of clinical care contributed to death. Perhaps controversially, the same guidance also serves to remind Coroners that the remit of an inquest should not extend to addressing concerns about high-level Government or public policy - such as whether there are adequate procedures in place for the provision of personal protective equipment to healthcare workers across the Country! 

If an Inquest is held, what are the risks to companies?

If a Coroner decides to hold an inquest where COVID-19 is suspected to have caused a death then, regardless of their sector, companies need to mindful of the potential influence of this on any criminal investigation that is either being considered or is already being carried out by any regulatory body. For example, the Health and Safety Executive will often attend an inquest where they suspect that a company has failed to ensure the health and safety of the deceased or, similarly, the Care Quality Commission where they suspect that a care provider has failed to provide 'safe care and treatment' for one of its residents. Although coronial law makes it clear that the purpose of an inquest is to simply establish 'who' the deceased was and 'where', 'when', and 'how' they died, regulatory bodies often use inquests as an opportunity to aide their own investigations by, for example, asking questions of witnesses who are called to give evidence at the hearing. This can, of course, include employees and senior managers of the very companies who are suspected of wrongdoing in the eyes of the regulator. Many organisations do not appreciate that regulatory bodies are entitled to ask questions of witnesses who are called to give evidence and that anything that is said in that arena is recorded and is liable to be referred to in any subsequent criminal proceedings. Nor do they realise that witnesses who are called to give evidence at an inquest are entitled, by law, not to answer questions which may 'tend to self-incriminate' which is often difficult to assess. Aside from this, the ultimate conclusions of a Coroner are also highly pertinent to the question of whether it would be appropriate for regulatory bodies bring a criminal prosecution. For example, in the context of the current pandemic, if a Coroner concluded that a contributory factor to a death was the failure by a company to provide sufficient PPE to its staff, then this is likely to carry significant weight in the eyes of the regulator. Knowing that regulators have their own agenda beyond the scope of an inquest, it is imperative that organisations are protected from the point that a Coroner decides to carry out an investigation up until the conclusion of the final hearing. To so would involve the following;

• Ensuring that organisations have the right to ask questions and make submissions at an inquest as an 'interested person'
• Assisting organisations with the preparation of any witness statements or other evidence requested by the Coroner
• Requesting disclosure of all evidence held by Coroner and advising organisations of its significance prior to the inquest
• Making representations to the Coroner about the scope of an inquest and the witnesses who are to be called to give evidence
• Raising objections to inappropriate questions that may be asked by the regulator and advising witnesses when it may be appropriate not to answer specific questions that may 'tend to self-incriminate'
• Making submissions to the Coroner about the content and form of his/her final conclusion

Although the actual hearing of inquests has, to a large extent, been placed on hold due to the current need for social distancing, once they resume in the near future, companies need to be mindful of the risks which they are potentially exposed to if a Coroner decides to investigate a workplace fatality in circumstances where organisational shortcomings are suspected as a contributory factor. Contact our Compliance & Regulatory team today if you require any advice and representation in relation to a Coroner's Inquest.

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.