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COVID-19 and Prevention of Future Death reports: What do they mean?

In this article we look at Prevention of Future Death reports (“PFDs”) issued by Coroners in England and Wales – specifically those which have been made in relation to deaths arising from or connected with the COVID-19 pandemic.

We assess the significance of the reports and how they may relate to the COVID-19 public inquiry examining the government’s response to the pandemic.

What are Prevention of Future Death reports?

Coroners investigating how a person has died have a duty under paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009 to make reports to a person, organisation, local authority or government department or agency where s/he believes that action should be taken to prevent further similar deaths. All PFDs are sent to the Chief Coroner and in most cases they are published on the Courts and Tribunals Judiciary website.

In the Chief Coroner’s revised Guidance Note no.5 on PFDs their purpose is explained:

“PFDs are vitally important if society is to learn from deaths. Coroners have a duty to decide how somebody came by their death. They also have a statutory duty (rather than simply a power), where appropriate, to report about deaths with a view to preventing future deaths. And a bereaved family wants to be able to say: “His death was tragic and terrible, but at least it’s less likely to happen to somebody else.’ PFDs are not intended as a punishment; they are made for the benefit of the public.”

The guidance note also states that PFDs “should be intended to improve public health, welfare and safety.” Recipients of PFDs are required to respond within 56 days. Their responses are also published on the Courts and Tribunals Judiciary website.

What does a Coroner need to consider when determining whether to make a PFD?

PFDs are made on a case-by-case basis and are highly fact specific. There are a number of relevant factors, however, Coroners are required to consider. These include consideration of evidence and information about changes made or shortly to be implemented as a result of the death; the Coroner’s assessment of the potential recipient’s understanding and commitment to addressing the relevant area(s) of concern; how the potential recipient has responded to any previous PFDs and any local issues or trends which might mean that the Coroner should make a PFD.

Have any PFDs been made in relation to people who have died from COVID-19?

In the months immediately following the outbreak of the pandemic in March of 2020, coronial investigations into the circumstances surrounding the death of individuals from COVID-19 were very limited. We have found no PFDs that were issued in the earliest period of the pandemic which related to action required to prevent further deaths from COVID-19.

This is not surprising given that the Chief Coroner had issued guidance (Guidance Note no. 34 Chief Coroner’s Guidance for Coroners on COVID-19) to all Coroners stating that where the medical cause of death of an individual was as a result of COVID-19 and there was no reason to suspect any culpable human failure contributed to the death, then there was usually no requirement for an investigation to be opened. In addition the pace at which COVID-19 was spreading and the evolving state of knowledge about how the virus could be treated and its transmission controlled meant that any PFDs may have been rendered useless by the time the Coroner came to make one.

Our analysis of PFDs issued in the past 10 months indicates, however, there has been a gradual increase in investigations carried out by Coroners in relation to people who have died from COVID-19. We have identified over 20 PFDs which record COVID-19 as the direct cause of cause or part of the cause of death.

As the decision to make a PFD lies with the individual Coroner, it follows that we see a range of approaches and issues arising in the PFDs. For example, there are a number of PFDs which request that action be taken in relation to guidance from the UK Health Security Agency and Office for Health Improvement and Disparities on how guidance was interpreted. The reports flag issues regarding the safe movement of patients within clinical settings and between settings who did not have COVID-19, and the management of prescriptions given to individuals with known drug dependency issues during periods when the country was in lockdown. A number of PFDs issued in the Manchester area (an area with a very large number of COVID-19 related deaths) raised more fundamental issues such as the shortage of ambulances and appropriate PPE.

More recently the PFDs flag issues which are less clearly connected to the key issues arising from the pandemic. These include individuals’ ability to access mental health services or face to face appointments for underlying or secondary health problems when such services were subject to restrictions brought about by the pandemic. In addition, some PFDs highlight the effects prolonged periods of self-isolation had on the mental health of certain individuals.

Are these PFDs significant?

It is important to put the number of PFDs arising from coronial investigations into COVID-19 related deaths into context. At the time of writing, the total number of deaths in the UK where COVID-19 is reported as the cause of death on a person’s death certificate is just under 170,000. The number of PFDs made in the first six months of this year totalled around 510. It follows that the number of COVID-19 PFDs account for a very small percentage of the total number of reports made.

It is not so much the content of PFDs as the lack of overall numbers of PFDs which is significant. In Guidance Note no.37 relating to COVID-19 deaths and possible exposure in the workplace issued in April 2020 and amended July 2020, Coroners are reminded that:

“…an inquest is an investigation into how a person died, and that it is a question of judgment for the coroner how far to pursue enquiries into underlying causes and contributory factors.”

The guidance also says:

“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.”

Finally, the guidance states:

“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.”

Whilst the mechanism to enable Coroners to consider issues which go to the heart of the government’s response to the pandemic exists, it may not be appropriate for those matters to form part of a coronial investigation into the death of an individual. That may provide part of the explanation for the relative paucity of such PFDs.

How do the PFDs relate to the work of the COVID-19 public inquiry?

The purpose of a PFD is to request that action be taken to prevent further deaths occurring. Public inquiries are major investigations arising from the existence of public concern about a particular event or set of events. There is no formal definition of the purpose of a public inquiry, but it is widely accepted that establishing what can be done to prevent the event or series of events from happening again is the overriding objective.

Consequently, there is obvious alignment between PFDs and the work of the COVID-19 public inquiry. The contents of PFDs provide us with helpful information about the issues Coroners and the families of those who have died as a result of COVID-19 feel need to be addressed to ensure we learn from the pandemic. It therefore seems highly likely that the types of issue raised in PFDs will form part of the scope of the COVID-19 public inquiry.

Lady Hallett, the recently appointed Chair to the public inquiry previously acted as the Coroner for the inquests into the deaths of the 52 people who lost their lives in the 7/7 bombings and is currently acting as the Coroner in the inquest into the death of Dawn Sturgess, who died in 2018 following exposure to the nerve agent novichok. She will be acutely aware of the role of PFDs and the importance of the recommendations she will make as the Chair of the public inquiry. When the remit for the public inquiry is under consideration the inquiry team ought to review relevant PFDs to ensure that any relevant ground identified in them is covered.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

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