12:04, May 08 190 0 theguardian.com

2020-05-08 12:04:04
UK health watchdog may investigate coronavirus deaths

The deaths of more than 50 hospital and care home workers have been reported to Britain’s health and safety regulator, which is considering launching criminal investigations, the Guardian has learned.

The Health and Safety Executive (HSE), which investigates the breaking of safety at work laws, has received 54 formal reports of deaths in health and care settings “where the source of infection is recorded as Covid-19”. These are via the official reporting process, called Riddor: Reporting of Injuries, Diseases and Dangerous Occurrences.

Separately, senior lawyers say any failures to provide proper personal protective equipment (PPE) may be so severe they amount to corporate manslaughter, with police forces drawing up plans to handle any criminal complaints.

Despite weeks of pleading, frontline medical staff complain that PPE is still failing to reach them as hospitals battle the highly contagious virus. Senior barristers say criminal investigations should be launched, and that there are grounds to suspect high-level failures.

Nazir Afzal, former chief crown prosecutor for north-west England, said: “Sending someone into a high-risk situation against one of the most infectious diseases we’ve come across in 100 years without proper protection needs a proper investigation and may meet the threshold for criminal sanction.

“In due course there ought to be an investigation by either the HSE or police to identify whether the lack of PPE has caused somebody’s death.”

Public authorities are not exempt from duties of care to their employees even when responding to emergencies. A key issue will be whether organisational and management failures contributed to those deaths.

Alex Bailin QC, an expert in laws concerning corporate manslaughter, said NHS trusts and the Department of Health, as well as any other government departments involved in crucial decision-making, could be considered criminal suspects.

“Medics and other carers are doing the job with inadequate equipment, and undoubtedly some of them will have contracted it from highly infectious patients, and died. Those deaths were avoidable with proper PPE,” he said. “Had there not been organisational and management failures, those deaths could have been avoided, and that could be corporate manslaughter.

“Legally, there may well be enough for the police to open a criminal investigation, even if there is not the appetite do so in the current crisis. There is reason to suspect serious high-level failures.”

He added that there was ample warning of the need for PPE. “From an early point it was clear a lot of PPE was needed. It was not ordered, it could have been ordered – so frontline workers were placed in an impossible situation; to treat dying patients without adequate protection, and risk their own lives, or not to treat them at all.”

The responsibility to investigate deaths of workers is split between the HSE and police. The HSE would investigate health and safety alleged offences, while the more serious offence of corporate manslaughter would be investigated by police.

The HSE says cases of Covid should be reported if “a worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work” and where “a worker dies as a result of occupational exposure to coronavirus”.

A HSE spokesperson said: “We are working tirelessly across a number of areas to help in the national response to the coronavirus outbreak, including assessing those deaths that have been reported to us. Where those deaths reported through Riddor meet the investigation criteria, they are being processed and an investigation initiated.”

The HSE has said in guidance to employers: “If a worker dies as a result of exposure to coronavirus from their work and this is confirmed as the likely cause of death by a registered medical practitioner, then you must report this as a death due to exposure to a biological agent using the ‘case of disease’ report form. You must report workplace fatalities to HSE by the quickest practicable means without delay and send a report of that fatality within 10 days of the incident.”

A spokesperson for the National Police Chiefs Council said:“If criminal offences are alleged in relation to a death, the police will consider the available information and make an informed decision whether a criminal investigation is required. In some cases it may be that concerns are referred to a more appropriate organisation, such as an inspectorate or regulator.

“If the police decide to commence an investigation into gross negligence manslaughter or corporate manslaughter, the senior investigating officer will engage the Crown Prosecution Service (CPS) for early investigative advice.

“At this time, no police force in England and Wales has commenced any investigation into corporate manslaughter or gross negligence manslaughter in relation to a death from Covid-19.”

A letter from 17 March written by NHS leaders says they had enough PPE, but local distribution issues were a problem. Guidance from the CPS on the corporate manslaughter offence says it requires “a gross breach of the relevant duty of care”.

It adds: “The failings of senior management must have formed a substantial element in the breach. However, the failings at senior management level do not of themselves have to amount to a gross breach of duty. Liability for the offence is assessed by looking at the failings of the organisation as a whole.

“The prosecution must prove that the breach of duty was causative of death. The test is whether the breach made a more than minimal contribution to the death.”

Dr Samantha Batt-Rawden, president of the Doctors’ Association UK, said: “Frontline healthcare workers have been putting their lives on the line to serve the NHS during this pandemic, often without adequate PPE. Tragically this may have contributed to the loss of life of NHS staff.”

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