The continuing search for answers on COVID-19 and care homes north and south of the border

North of the border

As at 29 November 2020, there had been 2,315 COVID-19 (C-19) related deaths in Scottish care homes. On 27 May 2020, the First Minister of Scotland committed Scottish Government to holding a public inquiry into the handling of all aspects of the C-19 pandemic, including those relating to care homes, however calls are growing for a more immediate inquiry into the care home aspects.

On 4 November 2020 the Scottish Parliament voted in favour of a motion calling for an “immediate public inquiry to find out what happened in Scotland’s care homes during the course of the pandemic” after a Scottish Government proposed amendment to this motion that the inquiry be held “as quickly as is practicable, once the country is through the immediacy of dealing with the pandemic” was rejected by 62 votes to 60. A week previously, a Public Health Scotland report showed that, in the period 1 March to 31 May 2020, 123 patients who had tested positive for C-19 were transferred from Scottish hospitals to care homes and a further 3,061 were discharged from hospitals to care homes without being tested at all, albeit the report ultimately concluded that “the analysis does not find statistical evidence that hospital discharges of any kind were associated with care home outbreaks.”

On 24 November 2020, the Scottish Cabinet Secretary for Health and Sport advised the Scottish Parliament that “C-19-positive patients are not routinely being discharged to care homes. In a very small number of exceptional cases, only when the clinician has judged that it is in the best interests of their patient’s care, discharge without a negative text can be undertaken when steps including clinical risk assessment are undertaken. The Scottish Government’s guidance, which was issued in May, states: ‘residents being admitted to a care home should have a negative test before admission unless it is in the clinical interests of the person to be moved and then only after a full risk assessment.’ The policy has not changed.” When pressed on the exact number of these “exceptional cases” on 26 November 2020, the First Minister of Scotland advised the Scottish Parliament “I cannot give that information, because those are clinical decisions, taken by clinicians.”

When pressed on the setting up of a public inquiry into C-19 and Scottish care homes on 24 November 2020, the Scottish Cabinet Secretary for Health and Sport told the Scottish Parliament that “I have sought to find out whether it is possible to have a public inquiry that rests, at least in part, on the four nations, because that would make a great deal of sense. However, I regret that I have not had a response on that, so we will now begin to take steps. Nonetheless, members should be under no illusion: setting up a public inquiry is not a quick exercise. Significant steps need to be taken that involve the Lord President, the Lord Advocate and others.” The Lord Advocate, who heads the Crown Office in Scotland, is already involved in investigating certain confirmed or suspected C-19 deaths including those in care homes and has set up a ‘C-19 Deaths Investigation Team’ within the Crown Office which is working with Police Scotland and others on what has reportedly been named ‘Operation Koper’.

South of the border

For England & Wales, the position on an inquiry has not materially changed since 15 September 2020 when, in response to a petition, UK Government confirmed “there will be an important moment to look back, analyse, reflect and to learn lessons … this will include an independent inquiry at the appropriate time.

A Judge may, however, rule on C-19 and care home matters in England & Wales sooner than in Scotland because trial in the judicial review brought by Dr Cathy Gardener and Fay Harris is likely to take place in April / May 2021. The claimants in this case seek review of the decisions made in terms of the policies and related measures of the Secretary of State for Health and Social Care, NHS England and Public Health England which had a bearing upon the protection of care homes between March and June 2020.

Summary

In summary, while news of an approved vaccine is raising hope that the beginning of the end of the pandemic may be in sight, the search for answers on C-19 and care homes, both north and south of the border, is likely to continue for some considerable time yet.

Greg MacDougall, Partner and Solicitor Advocate, and Zoe McDonnell, Partner and Head of Regulatory in Scotland (greg.macdougall@blmlaw.com and zoe.mcdonnell@blmlaw.com)

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