It is estimated that more than 100 medical and care workers in the UK have died from Coronavirus since the outbreak – and the shortages of the usual personal protective equipment (PPE) for those treating infected patients is no secret.
Families who have lost loved ones working in these front-line roles will feel strongly that this is not a coincidence. But the harsh reality is that the law seeks more by way of proof of a connection than the fact that these two events occurred at the same time.
The particular circumstances of these tragic deaths, however, does allow two routes in the Scottish courts by which those looking for answers can seek both disclosure of evidence and recognition that things should have been done differently.
The first is by means of the system of fatal accident inquiries (FAIs). These are before Sheriffs, with witnesses placed on oath, evidence heard over a number of days, and formal findings regarding both the cause of death and recommendations as to how safety in the workplace can be improved to prevent similar fatalities in future.
They are compulsory where someone dies at their workplace, but also ordered where there is a strong connection between the job someone did and their cause of death, or when the circumstances surrounding the deaths give rise to “significant public concern.”
An ‘FAI’ is similar to the Coroner system in England, and they are held in public in one of the 40 Sheriff Courts in Scotland, depending on where the death occurs. They are designed to be fact-finding exercises which do not set out to apportion blame or to punish, but at the same time they must consider whether anything reasonably could have been done to prevent the death.
The presiding Sheriff hears evidence from witnesses and can order disclosure of documents. The Sheriff’s main role is to determine what has contributed to the fatality but he or she can also make recommendations about precautions or improvements that can be made or systems that should be put in place to prevent future deaths. There would then be a legal duty on the employers to implement such recommendations.
The decision whether to hold one is made by the Crown Office - part of the Scottish Government - but families are entitled to have a say. Normally there are around 50 to 60 FAIs are held each year, around two per cent of all deaths in Scotland. FAIs are also ordered where someone dies in prison or police custody.
Families of the deceased, employers and other interested parties are entitled to be legally represented at the inquiry and in some circumstances legal aid funding can be obtained for this.
Although there have not been any FAIs previously on the issue of PPE in a healthcare setting, there have been numerous inquiries regarding protective equipment in other fields – notably the fishing industry, where Sheriffs have made a series of recommendations that lifejackets must be made available and crews compelled to wear them, after a number of drownings of men who went overboard.
Other FAIs have looked at issues such as the standard of equipment provided to those in the construction and oil industries, and whether ‘stab-proof’ vests should have been provided to police officers.
The public sector union GMB is pressing the Crown Office to agree that FAIs will be held for the families of all healthcare staff in Scotland who have died of Covid-19.
As well as the connection between diagnosis and employment, the law provides public sector workers with a second legal route – enforcement of the duty on their employer, the UK Government, to take protective steps for those whose role puts them at risk, under the European Convention on Human Rights.
In 2013, the UK Supreme Court heard a case brought by the families of soldiers killed in Iraq in a Snatch Land Rovers known among squaddies as a ‘mobile coffins’, due to the lack of protection they provided to roadside bombs in Iraq. The Ministry of Defence contested the case but the court found the British Army had a duty to provide better equipment for soldiers, and could easily have done so. The case led to the Defence Secretary giving a public apology to the families.
Similar ECHR obligations are potentially enforceable on public bodies such as health boards in the civil courts in Scotland, and these duties remain in force post-Brexit. The state is also under a duty to a undertake an effective public investigation into the deaths where there is evidence the equipment or the protection fell short – if they fail to do so, the court can be asked to order an inquiry.