May 7, 2020
Key issues for care providers and managers during the pandemic
The Chief Coroner has published his most recent guidance to coroners covering issues surrounding the current COVID-19 pandemic.
He has previously published three updating guidance notes to coroners covering emergency laws and how coroners will deal with deaths and inquests resulting from COVID-19.
The Care Quality Commission (CQC) recently released a press release following evidence that the daily deaths in UK care homes are fast approaching a stage that they may outnumber deaths within our NHS hospitals. As at 6th May, the Prime Minister has also expressed regret at the epidemic in the country’s care homes.
It should of course be remembered that COVID-19 is a naturally occurring disease and, in the vast majority of cases, deaths from it will not need to be referred to a coroner.
However, the Chief Coroner’s most recent guidance focuses on which cases may result in a coroner’s investigation which could include an inquest. It is a fair conclusion from the recent guidance that deaths inside care homes may well find themselves subject to investigation by a coroner. The guidance reminds coroners of the scenarios which may result in a referral to them. These include circumstances where:
- Some human failure contributed to the person being infected with the virus.
- Some failure of clinical care of the person in their final illness contributed to death.
In summary, there needs to be a reason to suspect that a culpable human failure contributed to the particular death.
Care homes therefore need to ensure the prevention of human failure is firmly at the top of their agenda. Doing so increases the overall safety of those within their care and decreases the possibility of a recorded COVID-19 death being referred to, and investigated by, a coroner.
Avoiding inquests from COVID-19 deaths in care homes
- Personal Protective Equipment (PPE)
Providers will be aware of their duties under Health and Safety Executive and CQC regulations to provide adequate safety equipment which includes PPE. Ensuring there is adequate provision of PPE is essential, together with training in its safe use. Where stocks are difficult to obtain, a clear record of attempts to procure supplies should be put in place. Risk assessments both for residents and employees should be fluid and reviewed regularly with a detailed paper trail.
- Testing for COVID-19
This is particularly important when considering incoming patients from the community or hospital. The risk is that without testing in place for incoming residents, seeding of COVID-19 from carriers could take place creating a possible outbreak within a home. Care homes should insist that any new resident coming from the community or hospital has been tested and this is properly recorded. Records of tests should be included within each resident’s record. There should also be appropriate isolation of residents with suspected COVID-19, or who are awaiting test results, in line with Government guidance. Again, all of this needs to be accurately recorded and in a timely manner. Careful consideration will also need to be given to the circumstances in which people were admitted to care homes from hospital without testing, prior to the recent expansion of testing coming in, and the risks that may have created.
- Policies on infection control and isolation of COVID-19 residents
These need to be reviewed and updated regularly. We would advise having a clear audit of the progression of these polices which correlate with the changing Government guidance.
- Clear records
Any resident who is suspected of having COVID-19 who is assessed by a paramedic or general practitioner to ascertain whether they should be transferred to hospital or remain within the care home should have clear and detailed records of the decisions made. Good practice could include asking for a copy of the ambulance record or GP record and including this in the resident’s records.
Finally, the guidance from the Chief Coroner makes it evident that not all COVID-19 deaths should end up in a Coroner’s Court. He is clear that Coroners’ Courts are not the forum for reviewing matters of high-level government or public policy.
Each death remains fact-specific and each coroner will need to review representations on a case by case basis.
Therefore, this current guidance on avoiding inquests resulting from COVID-19 deaths in care homes supports our advice that in the event you find a death being referred to the Coroner’s Court (whether by the family, following the necessary CQC notification or another source) that care home should seek early and full legal advice. That way, submissions can be made early to a coroner on behalf of an individual home on whether an Inquest is necessary in all the circumstances.