In the first of our articles, we discussed how a public inquiry into the Government’s response to coronavirus seemed inevitable. https://milnerslaw.com/uk-coronavirus-potential-for-inquiry/
In this article, we set out why a public inquiry is a legal inevitability and in doing so, we explain why we consider that the inadequate supply of personal protective equipment (“PPE”) will form a cornerstone of such an inquiry.
By the Human Rights Act 1998, the UK imported the European Convention on Human Rights (“ECHR”) into English, Scots and Northern Irish Law. Article 2 of the ECHR provides that:
“Article 2 – Right to life
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Article 15 of the ECHR sets out that there shall be no departure (or derogation) from Article 2 save in respect of lawful acts of war; a derogation being a necessary and proportionate exception to a State’s observance of the convention rights.
A good example of a current derogation might be Section 52 of the Coronavirus Act 2020 which confers power to issue directions (and therefore, prohibitions) in relation to events and gatherings. This is a necessary and proportionate exception to the UK’s general observance of another right, the Article 11 right to freedom of assembly and association, imposed on public health grounds.
Article 2 has been held, through decisions of the European Court of Human Rights (ECtHR) to include an obligation upon States to investigate unlawful deaths. In the simplest possible terms, this obligation arises from the necessity to protect the right to life by law when it is read in conjunction with the Article 1 general right to have one’s rights and freedoms protected by the State. The necessity of an investigation is implicit in order to establish (in uncertain causes of death) whether an individual’s expectation of legal protection of their right to life has been infringed.
Hence there is a need to make sure that an individual’s rights have not been ignored when they have died and decide whether they have died unlawfully, unlawfully meaning without the protection of their ‘right’ to life.
The UK largely discharges its obligation to conduct these investigations through Coroner’s inquests whose job is to investigate the cause and circumstances of a death.
Whilst the broader nature of inquests is beyond the scope of this article, it is important to note that they have limitations. Most fundamentally for our purposes, a Coroner is charged with establishing the cause of death, but s/he does not have the remit to examine systemic failures by the State which may have led to or contributed to a death.
An example which illustrates this point was given by Lord Phillips, in R (on the application of Smith) v Secretary of State for Defence  UKSC 29, where he sets out that:
“… inquests were designed to perform a fact-finding function as a stage in an overall scheme of investigation that would commence before the inquest and might continue after it. An inquest will not be the appropriate vehicle for all inquiries into State responsibility for loss of life. An inquest would not have been the appropriate means of determining whether the death of a victim of new variant CJD, contracted from eating BSE infected beef, involved government responsibility, nor for determining the issues of State responsibility for the “Bloody Sunday” killings. An inquest can properly conclude that a soldier died because a flack jacket was pierced by a sniper’s bullet. It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flack jackets could and should have been supplied by the Ministry of Defence. If the article 2 obligation extends to considering the competence with which military manoeuvres have been executed, a coroner’s inquest cannot be the appropriate medium for the inquiry.”
It is clear from the words of Lord Phillips here that in circumstances where we need to consider State policy and actions, an inquest of itself will be insufficient to discharge the UK’s investigative obligations under Article 2 of the ECHR. Therefore, wider failures of the State have led to Inquiries and not Inquests such as the Grenfell Inquiry, The Independent Inquiry into Child Sexual Abuse and the Contaminated Blood Inquiry.
If we tie all of this together then:
1. The State has an obligation in law to investigate deaths which might not have arisen from natural causes;
2. The primary system in the UK for conducting these investigations, the Coroner’s inquest, is not designed to examine the role of the State at a high policy level;
3. Therefore, any death arising from coronavirus which brings into question the role of policy development and implementation by the central Government will not be capable of competent investigation by a Coroner.
On 28 April 2020, the Chief Coroner issued Guidance Note 37 titled “Covid-19 Deaths and Possible Exposure in the Workplace” – guidance directed to Coroners on how to treat deaths arising from coronavirus where infection is suspected to have arisen in the workplace.
At paragraph 13 of the note, the Chief Coroner cites the words of Lord Phillips (above) and goes on to note that:
“By the same reasoning, an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of personal protective equipment (PPE) to healthcare workers in the country or a part of it.”
The Chief Coroner concludes that:
“If the coroner considers that a proper investigation into the death requires that evidence or material be obtained in relation to matters of policy and resourcing (e.g. the adequacy of provision of PPE for clinicians in a particular hospital or department), he or she may choose to suspend the investigation until it becomes clear how such enquiries can best be pursued.”
This should be construed as an acceptance that it is for the Government to institute a public inquiry pursuant to the Inquiries Act 2005 to analyse why there has been a failure in provision of PPE alongside the manifest other failures in planning, testing and support for care homes. All these failures which are daily becoming more and more obvious as the UK holds its place as the country with the third most deaths in Europe will, eventually, be considered within a Public Inquiry under the Inquiries Act 2005.
Why a Public Inquiry is a legal inevitability
Returning, full circle, to our assertion that there will be a public inquiry and that the failure to supply PPE will form one of the cornerstones of its terms of reference, we have seen that the State has a legal obligation to investigate unnatural deaths and that the Chief Coroner has advised that an inquest will be inappropriate in circumstances where general policies on the provision of PPE would need to be considered.
It follows then that if you have a frontline health worker (be that a doctor, a nurse, a care home worker or any other such profession) who has died from coronavirus and who is suspected of having contracted the virus whilst at work, then all that is required is to show that the employer (whether that be an individual hospital or care home) supplied the care worker with insufficient levels or standards of PPE because of procurement issues.
In these circumstances, by the Chief Coroner’s guidance, an inquest would be an improper forum for the consideration of aspects of the potential causes of death and as such, the only alternative would be a statutory inquiry.
As at 28 April 2020, we know that at least 100 frontline healthcare workers had died of coronavirus. It is self-evident that more than 100 people could not have died of the same cause as a consequence of individual employers’ policies and practices; the only sensible conclusion is that these tragic deaths are the result of the State’s nationwide policy and practice.
Written by Ben Harrison in conjunction with Sam Stein QC; Ben is a solicitor and Head of Public Law at Milners; he has worked extensively on both the Independent Inquiry into Child Sexual Abuse (IICSA) and the Infected Blood Inquiry. Sam Stein QC of Nexus Chambers is known for his work before IICSA, the Grenfell Inquiry and the Infected Blood Inquiry.