One key factor that is driving the Government’s response to COVID-19 is the number of deaths. Those are deaths ‘from’ COVID-19, the number of deaths ‘with’ COVID-19, and the number of those who have died with or from COVID-19 who are ‘likely’ to have died within a certain period of time in any event. That information is clearly critical to determining whether the drastic current interventions in social and economic life are necessary and proportionate to the risk, and whether the current restrictions on social interaction are proving effective and sufficient.
The Public Health England (“PHE”) dashboard states (as at 21 July) that there have been 271,063 ‘laboratory confirmed’ cases of COVID-19 and 42,265 ‘COVID associated deaths’ in England and Wales. The number of deaths comprises those where the deceased had tested positive from COVID-19 and died in hospital, without any distinction being made between deaths ‘from’ vs. deaths ‘with’ COVID-19 i.e. deaths where COVID-19 caused or contributed to death, or where COVID-19 was merely present.
The Office of National Statistics (“ONS”) separately compiles statistics of the number of deaths where COVID-19 has been ‘mentioned’ on the death certificates, which includes deaths in the community (including hospices and care homes). In the period ending 10 July there were 50,946 deaths registered in England and Wales ‘involving the coronavirus.’ The ONS statistics distinguish between deaths where the ‘underlying cause’ was respiratory disease from those where COVID-19 is mentioned. In the most recent week for which statistics were available, 9.08% of all death certificates listed influenza or pneumonia as the underlying cause and 4.21% of death certificates mentioned COVID-19, however, the ONS notes a death can be registered with both COVID-19 and influenza and pneumonia mentioned on the death certificate, and if a death had an underlying respiratory cause and a mention of COVID-19 then it would appear in both counts. The current guidance on completing medical certificates of death has been updated in light of COVID-19.
It notes “Information from death certificates is used to measure the relative contributions of different diseases to mortality. Statistical information on deaths by underlying cause is important for monitoring the health of the population, designing and evaluating public health interventions, recognising priorities for medical research and health services, planning health services, and assessing the effectiveness of those services.” [Emphasis in the original]
The guidance further states:
“COVID-19 is an acceptable direct or underlying cause of death for the purposes of completing the Medical Certificate of Cause of Death…
Medical practitioners are required to certify causes of death “to the best of their knowledge and belief”. Without diagnostic proof, if appropriate and to avoid delay, medical practitioners can circle ‘2’ in the MCCD (“information from post-mortem may be available later”) or tick Box B on the reverse of the MCCD for ante-mortem investigations. For example, if before death the patient had symptoms typical of COVID19 infection, but the test result has not been received, it would be satisfactory to give ‘COVID-19’ as the cause of death, tick Box B and then share the test result when it becomes available. In the circumstances of there being no swab, it is satisfactory to apply clinical judgement…
You are asked to start with the immediate, direct cause of death on line 1a, then to go back through the sequence of events or conditions that led to death on subsequent lines, until you reach the one that started the fatal sequence. If the certificate has been completed properly, the condition on the lowest completed line of part I will have caused all of the conditions on the lines above it. This initiating condition, on the lowest line of part I will usually be selected as the underlying cause of death, following the ICD coding rules. WHO defines the underlying cause of death as “a) the disease or injury which initiated the train of morbid events leading directly to death, or b) the circumstances of the accident or violence which produced the fatal injury”. From a public health point of view, preventing this first disease or injury will result in the greatest health gain….
You should also enter any other diseases, injuries, conditions, or events that contributed to the death, but were not part of the direct sequence, in part two of the certificate. The conditions mentioned in part two must be known or suspected to have contributed to the death, not merely be other conditions which were present at the time.” [Emphasis in the original]
There is therefore a clear and unsurprising parallel between the circumstances in which COVID-19 will be ‘mentioned’ on a death certificate (and therefore tracked by the ONS) as either being the underlying cause of death or another contributory disease or condition, and the test of contribution in the context of coronial conclusions – whether an event or omission more than minimally, negligibly or trivially contributed to death.
On the face of it, the ONS data may therefore be more accurate than the PHE numbers as a way of distinguishing between deaths from vs. deaths with COVID-19 (as well as also capturing deaths in the community as well). It would perhaps be helpful if the ONS data made the further break down of deaths where COVID-19 was a Part 1 underlying cause, as opposed to a Part 2 contributory condition. However, what cannot currently be known accurately from either set of data is the number of deaths where the deceased was infected but asymptomatic for COVID-19. It appears that hospital patients are only being tested for COVID-19 if they are symptomatic, and there is of course very limited community testing. Of particular concern has been the lack of reporting of deaths in care homes.
Neither set of data is therefore accurate as to the true mortality rate (even if only on a contributory basis) of those who are infected with COVID-19. Further, without an in-depth investigation (for example including post-mortem, which is unlikely to be performed for the vast majority of COVID-19 related deaths) it cannot be known how many deaths would have occurred in any event. I.e. the number of deaths that would not have occurred on the balance of probabilities but for infection of COVID-19 – applying the conventional test of causation in clinical negligence outside of circumstances where the material contribution exception applies. Arguably, that continues to be a key information gap when assessing the requirement for the continuation of the present ‘lockdown’ and one that is unlikely to be filled by either the PHE or ONS statistics, or indeed by such inquests as do take place under the current restrictions on the coronial system.
One final issue is that it is not clear whether the statistics we have would be sufficiently reliable as to mortality rates to satisfy the tests for the use of statistical information as evidence of the cause of death at an inquest. As explained in R (Chidlow) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 581 (Admin), general statistical evidence alone is unlikely to be sufficient, because being a figure in a statistic did not of itself prove causation. In most cases there would be other evidence as to whether the deceased probably would have fallen within the statistical group of survivors or not. Where there was apparently credible additional causation evidence which, if accepted, together with general statistical evidence could properly lead the jury to find on the balance of probabilities that the event or omission more than minimally, negligibly or trivially contributed to the death, it would usually be proper and safe to leave causation to the jury.
