General advice on Covid 19 and related issues

The UK has one of the safest and best healthcare systems in the world. Coronavirus Disease or Covid-19 as it is often referred to has affected many people, not all of them have reacted in the same way. Some people have not shown any symptoms (asymptomatic), others have had a difficult time fighting off the virus, many people have lost their lives to it.

Although the worst of the pandemic appears to be behind us, the truth is we still know very little about this virus, how it reacts and why it affects some people more than others. We have received enquiries from members of the public concerned that the treatment they or their loved ones received fell short of what was expected.

There are patients who have been indirectly affected by the government’s strategy to counteract the disease. For example, in some cases important treatments or surgery have not been carried out while healthcare providers direct all their resources, financial and human, to managing the disease and treating the sick. The failure to provide that important treatment or surgery may have caused that patient’s condition to deteriorate further – is this negligent? Does this amount to a patient safety issue? These are perfectly valid questions and you are right to raise them. We encourage you to use the hospital complaints process to ask these questions and we can provide assistance on how to access the complaints process, we are also happy to consider any response you may receive in due course.

AvMA does not pretend to have the answers to all your questions but we have set out some frequently asked questions and our responses below. These responses are aimed at offering quick and ready suggestions of things you might be able to do immediately, you are advised to seek legal advice in any event.

Please also see our update on changes to NHS complaints due to COVID-19.

A relative of mine has Covid 19 and I have been told that ventilation is to be withdrawn. I am not happy about this, what can I do?

This is a complicated issue and you will need legal representation. There may be legal remedies available to you, such as judicially reviewing (JR) the NHS decision. However, it takes time to put this legal process in place and the patient may have died before the court can decide.

You could ask for a second opinion from another doctor within the Hospital. If you do decide to follow a legal process, like judicial review, you will need to show there is medical support for your concern about the decision taken.

If the patient has dementia or other conditions where their mental capacity is or may be an issue, then in those cases, the patient’s advocate should be involved in the discussions. Again, you will need a specialist solicitor to help you. In some circumstances, the Official solicitor may need to get involved.

If your relative is receiving NHS care, another step you may wish to take is to seek assistance from the hospital’s Patient Advice and Liaison Service (PALS). The advice will be free and should be impartial.

I am not happy with what has been written on the death certificate, what can I do about this?

We have received several calls about this sort of thing, in some cases relatives believe that Covid 19 should be included on the death certificate and it hasn’t been. In other cases, the objection has been because Covid – 19 has been included on the death certificate when it was not clear the deceased had the disease. The decision to include Covid-19 on the death certificate or not, is down to the person certifying the death certificate and what they to the best of their knowledge and belief considered the cause of death to be.

Where the death occurred in hospital, the death certification process should be straightforward and the death certificate completed by a doctor.

Where the deceased died other than in hospital for example at home or at a care home, but a doctor (usually a GP) has attended to them in the last 28 days before their death then the GP is obliged to complete a death certificate, setting out to the best of their knowledge and belief what they consider the cause or causes of death to be. However, the doctor is only obliged to do this if they are confident of the cause of death.

You should note that “attended” on the deceased includes where there has been a video/visual consultation.

The fact that medical practitioners need only certify causes of death “to the best of their knowledge and belief” means that they do not need diagnostic proof of the condition. If a patient had symptoms typical of COVID19 infection before they died but there was no test result to confirm this, then it is acceptable for the doctor to include ‘COVID-19’ as the cause of death.

What happens if the deceased was not seen by a doctor in the 28 days before their death?

If the deceased was not seen by a doctor within 28 days prior to their death and if no doctor attended the deceased after they died, the death certificate can still be completed.

On the 5th May 2020, the Department Health and Social Care (DHSC) issued guidance on issuing death certificates during the time of Covid-19 emergency. The guidance confirms that for all cases where the death occurs outside of hospital death certificates may be completed by certain non-medical professionals. Those non-medical professionals should usually and normally be independent of family members. The non-medical professionals can verify the death provided they rely on remote clinical support and are guided through a series of checks.

If non-medical professionals are not comfortable verifying the death, they should not feel under any obligation to do so. In those circumstances the non-medical professional should refer to medical colleagues or NHS 111, or the patient’s general practice or another provider of primary medical services.’

Non-medical professionals will be able to complete death certificates of death citing confirmed and unconfirmed COVID-19, as cause of death.

The coroner has said that the cause of death was covid-19 and therefore it was a natural death, the coroner will not open an inquest. I think there were other issues that caused the death, what can I do?

You are entitled to write to the coroner and invite them to open an inquest into the death even where Covid-19 is listed on the death certificate. However, you will need to explain to the coroner why you think the death was contributed to or caused by other factors. Just because you write to the coroner setting out any other factors does not mean the coroner is obliged to agree with you and open an inquest.

In most cases, the coroner will be assisted if you can point them to any evidence in support of your concerns, for example, this might be something written in the medical notes.

I thought the death was caused by Covid-19, but I have been told that the coroner is going to open an inquest into the death, I do not know what to expect.

Please see our leaflet on the inquest process

I was due to undergo treatment for another condition and/or was awaiting surgery which was then cancelled due to resources being deployed to tackle the Covid-19 pandemic. My condition has since deteriorated because of the delay, what can I do?

You may have a claim in clinical negligence but it will depend on the facts of your case. You may find our leaflets on bringing a legal claim and the limitation period helpful. You may also want to search our find a solicitor section of the website so you can take further legal advice on your case.

You will still have to show that the delay you experienced was negligent and that you suffered injury as a direct result of that negligence. There are other relevant factors to consider such as the how hospital trusts allocated their resources. It is important to remember that Covid – 19 is a national and international pandemic, the likes of which have never been experienced before in the modern, western world. We do know from existing case law that the courts will looks at whether the treatment provided or omitted, was negligent, the funding and resources available to the trust will be taken into consideration. It is not entirely clear how the courts will treat these types of cases. There may also be public policy issues for not allowing cases of this type to succeed.

Any case where delay has been experienced will have to be looked at very carefully and on its own merits and you should seek legal advice from one of our AvMA accredited solicitors as soon as possible.