By Henry Blaxland QC of the Garden Court Criminal Defence Team.
This piece originally featured on The Secret Barrister's Blog on 09/06/2020.
“If the government were an employee of mine I would have sacked them for gross negligence” – so said Anita Astley, manager of Wren Hall nursing home in Nottinghamshire, where 10 residents died from Covid-19 and 48 carers caught the virus in a three week period[1]. Ms Astley’s complaint poses in stark terms a question which has been circulating since the full and devastating extent of the consequences of the pandemic have become clear: what, if any, legal liability does the state have for deaths caused by Covid-19?
The government has been doing its utmost to deflect any suggestion that it may bear responsibility for the consequences of its handling of and failure to prepare for the pandemic. Principally this has been achieved through a call for unity in a time of crisis, to the extent that even muted questioning of government actions by the opposition has been criticised, as witnessed by the Health Secretary Matt Hancock’s suggestion to Rosena Allin-Khan M.P. that she change her tone when, as a front line A & E doctor as well as a shadow minister, she had the temerity to ask direct questions about the government’s strategy for contact tracing and testing on the floor of the House and the Prime Minister’s rebuke to criticism of his handling of the pandemic by Keir Starmer, that this amounted to undermining trust in the government. There have also been indications that the buck is going to be passed to the government’s scientific advisers. More sinisterly, there is a suggestion that the government’s decision taken on 19th March to reclassify Covid-19 from a High Consequence Infectious Disease to a Low Consequence Infectious Disease[2], while at the same time the Health and Safety Executive downgraded the classification of Covid-19 under the Control of Substances Hazardous to Health Regulations 2002 from a Group 4 to a Group 3 biological agent, was taken in order to facilitate the decanting of elderly Covid-19 patients from hospitals into care homes.
But, as the death toll among health care and care home workers continues to rise and the United Kingdom’s overall death rate per capita has become the highest in Europe, the pressure for a public inquiry is beginning to mount. If it happens such an inquiry will no doubt focus on the extent to which the high incidence of Covid-19 was avoidable and, if so, how should those responsible for failing to take steps to avoid it be held to account. Three issues are likely to loom large: 1. Whether the Department of Health and Social Care (DHSC) failed to act on the NHS’s own operating framework for responding to a flu pandemic; 2. The failure to provide PPE for health and care staff; 3. The practice at a critical time in the onset of the virus of discharging patients from hospital to care homes.
The starting point for consideration of governmental liability in England is the statutory duty under S.2A of the National Health Service Act 2006, which provides that the Secretary of State must takes such steps as he considers appropriate for the purpose of protecting the public from disease. This includes[3] the provision of services or facilities for the prevention, diagnosis or treatment of illness and includes a requirement to consult with the Health and Safety Executive[4]. In this context the overarching duty of the Secretary of State and state agencies in general (extending throughout the United Kingdom) is that provided for by Article 2 of the European Convention on Human Rights to take all appropriate steps to protect life.
In an article in the Law Society Gazette Lord Hendy Q.C. and Jane Deighton[5] have drawn attention to the provisions of the Health and Safety at Work Act 1974 and the Personal Protective Equipment at Work Regulations 1992 and make the point that it is a criminal offence for an employer to fail to provide a safe place of work. They go on to note, however, that the Health and Safety Executive and local authority Environmental Health officers have so far failed to bring any prosecutions for failure to provide PPE. Indeed, because criminal liability falls on the employer, it would be the relevant NHS foundation trust or individual care home provider, who would face prosecution, rather than the DHSC or Public Health England.
Alex Bailin Q.C. has commented that a failure to provide PPE may amount to a criminal offence under the Corporate Manslaughter and Corporate Homicide Act 2007[6]. But that again poses the question of whether liability would extend beyond the immediate employer of those affected. The offence under S.1 CMCHA is committed where the way in which an organisation’s activities is managed or organised causes death and amounts to a gross breach of a relevant duty of care. The DHSC is listed as an organisation to which the provisions of the Act apply[7]. The DHSC has a ‘relevant duty of care’ under S.2 on the basis that it has a duty to persons who are ‘performing services for it.’ There is a question, however, as to whether the provision of PPE would fall within the terms of S.3(1), which provides that: ‘Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”’. It is difficult to imagine that a decision about whether to provide life-saving equipment could properly be construed as a decision as to a matter of public policy, but then S.3 is intended to protect government departments from criminal liability for political decision making.
The question of criminal liability is currently under consideration in the case of at least one care home. Northamptonshire police are conducting an investigation into Temple Court care home in Kettering, run by Amicura, where 15 residents died of Covid or suspected Covid following the discharge of patients from hospital to the care home on 19th March. In determining the criminal liability of the care home for the neglect of the safety of its clients, it is likely to be impossible for the investigation to avoid considering the broader question of the liability of Public Health England and the DHSC for decisions concerning the transfer of patients from hospital[8].
In general, before any decision about criminal liability would be made, a decision will have been taken as to whether an inquest should be opened into the cause of death. That raises the critical question of the circumstances in which inquests will be opened in cases where the cause of death is Covid-19. The approach of the Coroners Courts is governed by guidance from the Chief Coroner and in Guidance 34 of 26 March, which followed immediately from the enactment of the Coronavirus Act 2020, specific advice was provided that for the purpose of the Notifications of Deaths Regulations 2019, Covid-19 is considered to be a naturally occurring disease with the result that there will be no need for a referral to a coroner. Further, where a decision is taken to open an inquest, S.30 Coronavirus Act removes any requirement for it to be heard with a jury where the coroner has reason to suspect the cause of death was Covid-19. Guidance 37 was issued on 28 April under the heading ‘Deaths and possible exposure in the workplace’. The guidance notes that a workplace death from Covid is reportable to the Health and Safety Executive under the relevant regulations[9]. The guidance goes on to state that a death may be reported where it has been caused by a disease contracted in a workplace setting and that this may include frontline NHS staff as well as public transport workers, care home employees and emergency service personnel. It recognises that in determining the question of whether there is reason to suspect that the death is ‘unnatural’ for the purpose of the requirement to open an inquest, that it may be so if the death occurred as a result of a naturally occurring disease, but where some human error contributed to death. The Guidance then goes on to refer to higher court authority to the effect that an inquest is not the right forum for issues of general public policy to be resolved leading to the comment: ‘…an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers in the country or a part of it.’ Advice is then given about the power to suspend the inquest in the event that the coroner considers that evidence should be obtained in relation to matters of policy and resourcing, such as obtaining adequate supplies of PPE, together with a cautionary note about the limitations on the ability to pursue enquiries as a result of the effect of the pandemic and the lockdown. In other words the Chief Coroner has sought to steer coroners away from addressing the critical question of the organisational failure to protect lives, prompting Deborah Coles, the director of the charity INQUEST, to write to him stating that the Guidance will stymie and limit investigations into Covid-19 deaths[10]. However, as the Guidance recognises, once the low threshold of a reason to suspect that human error contributed to death is passed then coroners will be under a duty to open an inquest. If as a result of that enquiry the coroner concludes that a failure to provide PPE was a contributory cause of death then this will need to be recorded, whether or not it is accompanied by any observation on how the question of public policy impacted on the lack of sufficient PPE.
Finally, whether or not there are criminal prosecutions or a public inquiry, there is likely to be private litigation brought by those affected by the pandemic. That would not be confined to health service workers and others who have either died or suffered long term physical and mental health consequences as a result of culpable failures by their employers, but could extend to those avoidably exposed to risk, such as residents in care homes to which those infected by Covid had been discharged from hospital. Indeed a doctor whose father died in a care home is reported to be crowd funding for a legal action “to hold the government to account”[11].
Conclusion
The government has faced sustained criticism of many aspects of its handling of the pandemic. Central to that criticism has been the question of whether the government’s decision making has made the requirement to protect life secondary to economic considerations. What has to be faced is the shockingly high fatality rate in the United Kingdom among care home residents and those working on the front-line, including transport workers. That in itself establishes a prima facie case against those responsible for taking critical decisions as the pandemic has engulfed us. All the indications are, however, that any question of legal liability at a governmental level will be firmly resisted.
Henry Blaxland Q.C.
(With contributions from colleagues at Garden Court Chambers)
7th June 2020
[1] Reported in the Guardian 28/05/2020.
[2] www.gov.uk/guidance/high-consequence-infectious
[3] S.2(b)(iv) NHS Act.
[4] S.2(4)(a); S. 2(5)(a).
[5] https://www.lawgazette.co.uk/practice-points/personal-protective-equipment-and-the-law/5104146.article
[6] Guardian 09/05/2020.
[7] S.1(2); Schedule 1.
[8] https://www.northantstelegraph.co.uk/health/coronavirus/police-investigation-begun-kettering-care-home-closed-after-major-covid-19-outbreak-2873639
[9] Diseases and Dangerous Occurrences Regulations 2013, which requires that a report should be made where any person dies as a result of exposure to a ‘biological agent’ and Covid-19 has been so designated.
