Covid-19 public inquiry –focusing on health and care

Whilst addressing the House of Commons on Wednesday 12 May 2021, Prime Minister Boris Johnson told MPs that an independent statutory public inquiry into the handling of the pandemic would be convened in spring of 2022.

What is a public inquiry?

Statutory public inquiries are formal investigations initiated by a government minister that is capable of being granted special powers to compel testimony and the release of other forms of evidence. They are called due to the existence of public concern due to a set of events. In the past, inquiries have addressed topics as wide-ranging as transport accidents, fires, the mismanagement of pension funds, self-inflicted deaths in custody, outbreaks of disease, and decision-making that has led to war.

Non-statutory inquiries lack the subpoena powers and ability to take evidence under oath that are afforded to statutory inquiries.

The Inquiries Act 2005 was designed and passed to provide a framework under which future inquiries can effectively be operated and conducted to deliver valuable and practicable recommendations in a timely and cost effective manner.

The main function of statutory inquiries is to address three key questions:

  1. What happened?
  2. Why did it happen and who is to blame?
  3. What can be done to prevent this happening again?

Each public inquiry begins when its terms of reference are set out which outline the questions that the inquiry should address, the types of information and feedback that the Government wants and provide time frames for issuing its report. Inquiries will draw upon experts and policy professionals to assist in formulating recommendations to guide the Government and other relevant entities to implement changes required to prevent recurrence.

Although initiated and funded by government, public inquiries are run independently. Each inquiry is led by a panel led by a chairperson. The choice of the chair lies with the minister who initiates the inquiry, and the tendency is to favour judges. However, scientists, social workers, doctors and engineers have all successfully chaired inquiries in the past.

There were 69 public inquiries launched between 1990 and 2017.

Joint inquiries involving more than one jurisdiction

A joint inquiry can be convened where the subject matter falls within the responsibility of more than one minister and can involve ministers from more than one administration.  For example, if devolution had been in place at the time of the Dunblane inquiry, which related both to firearms (a reserved issue) and safety in schools (a devolved one), the Scottish and UK Ministers might have chosen to set up a joint inquiry. 

The terms of reference of the joint inquiry can cover matters that any one of the relevant Ministers would be able to establish an inquiry into. For example, the terms of reference of a joint inquiry established by Scottish Ministers and the National Assembly for Wales could require the inquiry to receive evidence or make recommendations that are primarily concerned with a Welsh or Scottish matter, but not on anything else.

The terms of reference of a joint inquiry established by United Kingdom Ministers and Scottish Ministers could require the inquiry to receive evidence or make recommendations about anything not wholly concerned with a Welsh or Northern Ireland matter. It could only extend to Welsh and Northern Ireland matters if the UK Minister had first consulted the relevant devolved administrations.

COVID-19 inquiry

The COVID-19 inquiry will place the actions and decisions of the state during the pandemic under scrutiny in order to inspect the government’s handling of the crisis. This will include decisions in relation to the timings of lockdowns based on the information which was available at the relevant time. The inquiry will also examine the extent to which decisions and policies impacting outcomes compared to the approach adopted in other countries such as France, Italy, and Spain.

Some of the key questions that might be explored are:

  • Why the UK had one of the highest coronavirus death rates relative to the population of other major economies?
  • Was the high death rate a result of misguided government decision making?
  • Are there underlying inequalities and poor health in disadvantaged communities which contributed to the higher death rates?
  • Has there been under-investment in public health?
  • Why were PPE supplies so inadequate?
  • Why was the PPE procurement process so flawed?
  • How the UK controlled the movement of people through its borders?
  • Were the timings and strategy of lockdowns appropriately handled?
  • Whether the government had failed to heed previous warnings about a pandemic?
  • Whether the use of Do Not Resuscitate orders without consent were appropriate?

The inquiry’s full terms of reference have not yet been announced but is intended to be published in due course. The Prime Minister confirmed that the devolved administrations (Scottish Government, Welsh Government, and Northern Ireland Executive) would also be consulted. Preparatory work and the appointment of a chairmen for the inquiry will begin before the spring of next year.

As a statutory inquiry, witnesses can be legally compelled to attend and provide evidence under oath.

Dame Deirdre Hine, who led the independent review into the 2009 swine flu outbreak, said she does not expect the COVID-19 inquiry to report back in less than two years due to the “ground it has to cover.”

Care sector

We know one in four people that died from COVID-19 in the UK lived in a care home and deaths in care homes increased by 20% over the last year.

Of chief concern is the fact that during the early stages of the pandemic many patients who were infected with the virus, were discharged from hospitals and transferred to care homes without testing in a desperate attempt to free up hospital beds. This undoubtedly contributed to the spread of the virus to vulnerable individuals in care homes.

The public inquiry will provide an opportunity to review the impact of official decision making which critics say led to the premature deaths of 3,292 care home residents in Scotland and 41,758 care home residents in England and Wales.

Some of the key questions that could be explored during the inquiry are:

  • Why patients were discharged to care homes without prior testing to determine if they were carrying the virus?
  • Why families could not visit care homes and why so many residents died alone and without the opportunity to bid their loved ones farewell?
  • Why regulators withdrew from some prescribed inspections?
  • Why care workers were initially advised that they didn’t need to use PPE?
  • Was there access to fair and equal medical treatment in care homes?
  • Whether the heavy reliance on agency workers that were shifting in different care home locations exacerbated the spread of the infection?
  • Whether rights of care home residents were breached at all stages?
  • How have policies enacted during the pandemic impacted the physical and mental wellbeing of residents in care homes?

Recommendations to health and care providers

In order to be able to actively and effectively participate in the public inquiry, we recommend that health and care bodies:

  • ensure good record keeping policies and practices are in place;
  • keep and retain good records which relate to the last two years;
  • monitor, review, and keep up to date risk assessments in relation to all facets of the practice;
  • provide staff and managers with relevant continuing professional development (CPD) training;
  • monitor and keep up to date CPD records;
  • review and update quality control and audit policies in place;
  • ensure audit checks are carried out at regular intervals;
  • ensure existing policies have been complied with by staff and managers; and
  • monitor and comply with government guidelines in relation to the health and care sector.

There are still many unanswered questions regarding the government’s handling of the pandemic and the announcement of a public inquiry will provide the country with an opportunity to learn important lessons in order to prevent this from happening ever again

Written by Abhinav Parameshwar, Trainee Solicitor at BLM

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