13. Submissions on Behalf of the Federation of Ethnic Minority Healthcare Organisations by Mr Dayle

Mr Dayle: Good afternoon, my Lady. I appear on behalf of the Federation of Ethnic Minority Healthcare Organisations, FEHMO, led by Mr Leslie Thomas KC and instructed by Ms Cyrilia Davies Knight and her Saunders Law team.

My Lady, in addition to the topics I will address today, in our detailed written submissions you can find addressed, among other matters, the key lines of enquiry for the listening exercise, matters dealing with evidential arrangements, the provisional list of issues and the issue of diagnosis of long Covid in minority ethnic people. I do not seek to rehearse those topics in these submissions but nevertheless FEHMO invites the Inquiry to consider them.

My Lady, it bears saying, as an introduction, that the first ten doctors to die from coronavirus were from black, Asian and minority ethnic backgrounds. In an article entitled “UK Government urged to investigate coronavirus of BAME doctors” in The Guardian on 10 April 2020, the head of the British Medical Association called on the government to urgently investigate if and why black, Asian and minority ethnic people were more vulnerable to Covid-19. The article stated:

“At face value, it seems hard to see how this could be random - to have the first 10 doctors of all being of BAME backgrounds … Not only that, we also know that in terms of the BAME population, they make up about a third of those in intensive care. There’s a disproportionate percentage of BAME people getting ill.

“We have heard the virus does not discriminate between individuals but there’s no doubt there appears to be a manifest disproportionate severity of infection in BAME people and doctors. This has to be addressed - the government must act now.”

So to put this statement in context, here are some sobering statistics from the British Medical Association for the period between March to April 2020: 21% of all healthcare workers were from minority ethnic backgrounds, yet those groups accounted for 63% of deaths of healthcare workers. 20% of nursing staff were minority ethnic, yet 64% of nurses who died during this period were minority ethnic. 44% of medical staff were minority ethnic, yet 95% of doctors who died during this period were minority ethnic.

FEHMO welcomes the provisional list of issues provided by CTI’s note, and in particular the confirmation that “running throughout the module will be consideration of whether the healthcare decisions to be examined disproportionately affected any particular group in society, the measures put in place to reduce the unequal impact of the pandemic on minorities or vulnerable healthcare workers or patients, and whether any unequal impact was foreseeable”.

From our perusal of disclosure in Module 2 to date, it seems that little effort was made at the central governmental level to convene healthcare system leaders to discuss and tackle the causative factors that made BAME healthcare workers the most likely casualty in the early stages of the pandemic. There was an unhelpful state of ambiguity, we call it, within the NHS on how best to protect ethnic minority healthcare staff. It was not until July 2020 that NHS employers provided updated guidance on prioritisation and management of risk, including risk to ethnic minority staff. A report from Public Health England entitled “Beyond the data: Understanding the impact of COVID-19 on BAME groups”, dated June 20, 2020, provided what we consider to be an authoritative picture and analysis for this state of affairs, and it found:

“Historic racism and poorer experiences of healthcare or at work may mean that individuals in [black, Asian and minority ethnic] groups are less likely to seek care when needed or as NHS staff are less likely to speak up when they have concerns about Personal Protective Equipment (PPE) or risks.”

So the generalising observation of what we may refer to as the Fenton report, for its authorship by Professor Kevin Fenton, accords with the position of FEHMO in its critique of the healthcare system and the exposure of BAME healthcare staff:

“It is clear from discussions with stakeholders that COVID-19 in their view did not create health inequalities, but rather the pandemic exposed and exacerbated longstanding inequalities affecting black, Asian and minority ethnic] groups in the UK.”

FEHMO notes that in Module 3 the Inquiry proposes to examine as issue 2E core decision-making and leadership, the extent to which healthcare inequalities were considered as part of the core decision-making process – progress, and we say that there are no specific issues to issues of race or ethnicity but we commend to you, my Lady, these considerations as being obvious and significant areas of investigation for this module.

So given the disproportionate death rate of BAME healthcare workers in the earliest stages of the pandemic, we submit that it is imperative, my Lady, that oral evidence is elicited from this cohort about their lived experience during that time.

Here I pause to endorse sentiments expressed already by Ms Munroe and Mr Metzer this morning to this effect.

FEHMO contends that the purpose of such evidence taking is not merely to document the fear and hardship wrought by the pandemic, but instead to fill substantive gaps in the understanding of what actually happened within the healthcare system. This is critical from the point of view of impact on healthcare staff, as well as for patient safety.

The oral evidence of BAME healthcare workers will provide an opportunity for the Inquiry to directly interact with the witnesses, ask clarifying questions, and delve deeper into their perspectives and accounts. An interactive and open dialogue, which is only possible through oral testimony, allows for what we consider to be a dynamic exploration of the issues that written statements alone cannot accommodate.

FEHMO invites the Inquiry in Module 3, my Lady, to pay close attention to the period of the early stages of the pandemic. Again, we wish to point out that it is not sentimentality for the Inquiry to pay focused attention to this period, but instead it’s an opportunity to examine what occurred within the healthcare system during that time, and reflect on what might be corrected for the future.

This includes issues such as: the classification and recording of deaths, and here we support Mr Jacobs of the TUC’s submissions in his call for an expert on statistical analysis in relation to the death of healthcare staff, and we particularly ask for this to be disaggregated in terms of race and ethnicity; the role of religion and faith within communities of colour in shaping attitudes towards death; the performance of bereavement services, hospices and services in end of life care; the inclusiveness and proportionality of hospital memorialisation efforts; and the racialised impact, we call it, of seemingly facially neutral policies, such as those for hospital visitation, and they played out in an atmosphere of fear, uncertainty and wider concerns about racism.

FEHMO is also keen for there to be focus on the following matters related to acute treatment and care: how staffing challenges impacted on members’ delivery of healthcare and how this contributed to general access to critical care, and I think at this juncture I must acknowledge and support Ms Morris, on behalf of the Royal College of Nursing, who called for a compensation scheme to meet the need of those workers made chronically ill by their service during the pandemic.

The effectiveness of Nightingale hospitals in serving black, Asian and minority ethnic communities, and the adequacy of emergency services in their responses to the needs of BAME communities and the effectiveness of cross-sectional co-operation in managing the crisis.

One area of what we consider to be high importance that the Inquiry must hear directly from BAME healthcare workers in is in matters of risk assessment. It bears repeating that many of our members have frontline patient-facing roles, with exposure to the wider public, with increased risk of infection. Most of our members did not have any risk assessment carried out until later in the pandemic and were not assessed for risks arising from the known disparities in infection and mortality for minority healthcare workers. Outsourced or agency workers were often not given any risk assessment. One of our member organisations, the British Association of Physicians of Indian Origin, called BAPIO, spotted the gap early on and devised its own risk assessment that was rolled out in Wales and parts of England.

My Lady, this Inquiry must focus on whether there was any data sharing among NHS organisations about risk assessment. There appears to have been a massive amount of inconsistency between NHS trusts as to whether ethnicity was even included as a risk factor in the first place. Was there guidance on how to conduct risk assessments in relation to race and ethnicity? And if so, was there any consultation with BAME leaders within the NHS in the development of such guidance? And when risk assessments were in fact done, it was often at the level of a peer, and not by managers who had the authority to make reasonable adjustments.

Another area of high importance, we say, that the Inquiry must directly hear from BAME healthcare workers in is in relation to cultural competency, engagement, representation and leadership. FEHMO contends that a productive healthcare relationship must be one that is based on trust, and the development of such trust is assisted by cultural competency and leadership. In a pandemic, assertions about science and evidence, often touted as the Holy Grail, are considered through the prism of health inequality and structural racism. Public health communications and guidance during this time were not consistently provided in accessible formats. BAME communities were unhelpfully branded “hard to reach”, which frankly reflected the failure of NHS leadership to effectively engage with these communities.

As some examples, publication of translated guidance was slow and less accessible than English language versions, there were few community specific awareness raising campaigns or materials distributed by local or central government, and slogans often translated poorly across languages.

FEHMO members, along with other voluntary and community sector organisations, and faith leaders, were forced to fill these gaps in leadership to engage with those from ethnic minority groups and ensure that important public health messaging and information was communicated in culturally sensitive and language-appropriate ways.

Finally, my Lady, and this is on some procedural points, and I have three to make, the decision to downgrade Covid-19 from high-consequence infectious disease, or HCID, status on 19 March 2020, thereby permitting the use of PPE and not respiratory protective equipment, or RPE, appears to have been a grave error. My Lady, we thank you for confirming that this will be explored and ask that its impact on loss of life be examined thoroughly.

Secondly, we repeat our calls for the instructed experts on structural racism for Module 2, Professors James Nazroo and Ms Laia Bécares, to be further instructed in Module 3, and for them to be invited to give oral as well as written evidence, affording you, my Lady, the opportunity for a more dynamic exploration of the subject matter.

Finally, thirdly, FEHMO respectfully reiterates its previous position, shared with many other core participants, Ms Munroe earlier, that the Inquiry reconsiders its decision not to disclose Rule 9 requests to all core participants. Without our sight of these documents, we say, my Lady, it will not be possible for participants in the Inquiry to identify gaps before evidential hearings.

My Lady, unless there are any questions arising, those would be my submissions on behalf of FEHMO at this time.

Lady Hallett: Thank you very much indeed, Mr Dayle, very helpful.

Mr Simblet King’s Counsel, where are you? There you are. You were hiding from me in plain sight.