3. Submissions on Behalf of John’s Campaign and Care Rights UK by Mr Straw KC

Mr Straw: Good morning, my Lady. As you know, I represent John’s Campaign and Care Rights UK.

We’ve set out quite a lot of detail in our written submissions and this morning I’d just like to emphasise a few key points on three topics: firstly, the list of issues; secondly, Rule 9 requests; and thirdly, a few procedural points.

So, list of issues, we welcome the changes that have been made to the Inquiry’s list of issues in the most recent version, and also the indication from Mr Poole that the list will be kept under review. In our written submissions, and this morning, I’d like to identify a few more specific subissues which aren’t explicit on that list, for the purpose of encouraging the Inquiry team to bear these in mind and consider them when it’s continuing to prepare for the hearing, so when making decisions about disclosure, further Rule 9s, if there are to be any, which witnesses to be called and so on.

I’d like to focus on eight subissues for this morning. The first of them is the indirect harm of NPIs, non-pharmaceutical interventions, and by indirect harm I mean the adverse impact other than Covid itself of those NPIs.

Now, this is a very important issue for our client group, which is broadly those in the care sector, because the adverse impact on our client group of NPIs was at least as bad as the impact of Covid itself, and that’s in terms of both death, illness and serious other injury.

There are a variety of emerging themes from the disclosure which we would invite the Inquiry team to bear in mind, related to this, for example, failure to evaluate or take into account the adverse impact by core decision-makers, failure to obtain sufficient input from appropriate experts by core decision-makers, including expertise about vulnerable groups, for example those in the care sector. Similarly, failure to obtain sufficient data and Welsh-specific data regarding the adverse impact on vulnerable groups.

The second issue is failure, by core decision-makers, to understand and properly consider the needs and rights of older people.

The third issue is similar, it’s failure to understand the needs and rights of disabled people.

Now, there’s a particular concern for our group, which is the disabled people with mental or learning disabilities or cognitive impairment, and there’s a real vacuum in the disclosure that we’ve seen so far of any recognition or consideration being given to those who fall into that category.

There’s a particularly important disability, which is dementia. I gave reasons why that’s a particularly important disability in this context in the Module 3 hearing, and I won’t repeat those, other than to say that dementia is the leading cause of death in the UK, and therefore we submit something that should be an important matter to be borne in mind.

Disability Wales have submitted two points that we would respectfully endorse. Firstly, in paragraph 1.3 of their written submissions they submit that disabled people were no more than an afterthought in core decision-making, and they were given insufficient weight by central government and central administrators, and we endorse that.

They also invite the Inquiry to obtain an expert report from Professor Debbie Foster, who was the co-ordinator of the “Locked out” report on this particular topic. Again, we support that. It does appear from Mr Poole KC’s submissions that that will be obtained, and if so we are content with that.

The fourth sub-issue is the care sector, so the consideration given to the care sector within core decision-making, and we’re content to hear from Mr Poole that this module will look at broad reasons why care-related decisions were taken by core decision-makers. It’s important that that issue is considered by the Inquiry, as it was important that the care sector was taken into account by core decision-makers. These decisions in central government led to many deaths, they led to serious harm, both Covid and non-Covid, for those in the care sector, and so it should have been an issue that was front and centre of decisions being taken centrally.

There are particular issues which affect this module concerning the care sector that we would invite the Inquiry to bear in mind.

So, firstly, little engagement with those in the care sector, little engagement with stakeholders.

Recommendations from the care sector weren’t acted upon, there was little regard by those in central positions on the impact of core decisions on the care sector.

And finally, again, a vacuum really in the disclosure that we’ve received so far of any consideration by core decision-makers of care outside hospital or care home. And this is an often forgotten part of the health and care sector. It’s a very large proportion of those being cared for are actually those who are outside hospital or care homes.

The fifth sub-issue is guidance or policy. In a number of cases guidance or policy was produced by different parts of government, different departments, about the same topic. So there may have been guidance or policy for one particular sector produced by Public Health Wales and different sections of the government which conflicted, so it told people to do different things.

We would invite the Inquiry to look into whether there was a process in place to try to avoid that sort of conflict, a process for co-ordinating guidance and policy.

Similarly, we would endorse what Ms Heaven submitted earlier today, that there was a gap between government policy announcements or government rhetoric and what happened on the ground in Wales, and we invite the Inquiry to look into that.

The sixth issue is the disclosure indicates that duties arising from equality and human rights legislation were overlooked or breached in core decision-making. So, for example, due regard duties or reasonable adjustment duties appear often to have been ignored. Now, of course, government had a great deal on its plate during the pandemic, but if anything those duties were more important during a pandemic than otherwise. Similarly, regulatory bodies such as the Equality and Human Rights Commission were often overlooked.

The seventh issue, the disclosure so far indicates that there was, at a relatively early stage, high levels of hospital-acquired infections, and that those weren’t recognised or properly acted upon in core decision-making, and the obvious example is discharge into care homes, but there are other core decisions as well where that wasn’t properly recognised.

The final, eighth, issue is lack of record-keeping. Ms Heaven has already made detailed submissions on that which I need not repeat, but we endorse those submissions.

My Lady, the second topic I’d like to turn to now is experts and Rule 9 requests.

We do invite the Inquiry to call expert evidence regarding the care sector for the purpose of this module. Now, that need not be a specific separate report, but assuming the Inquiry will be obtaining a report for Module 6, the care sector module, then if that can be prepared in time, we would invite the Inquiry to include in that a section on core decision-making. And that’s really to reflect the importance of what happened in the care sector to core decisions, so the very high number of deaths that were caused, the very high number of serious injuries, serious illness that was caused by core decisions in the care sector.

We would submit on the basis of the evidence that’s been disclosed so far that those in core decision positions did not have sufficient understanding of the care sector. For example, a basic point, the difficulty in isolating those entirely dependent on others for care and survival. And it would be helpful, we submit, for an expert to include a section in the report on the peculiar characteristics of the care sector and those in care, and how that should have impacted on core decisions.

We’ve put forward in correspondence an individual called Mark Llewelyn, who is the director and professor of health and care policy at the Welsh Institute for Health and Social Care, and we invite the Inquiry to consider him.

On outstanding Rule 9 requests, we invite the Inquiry to consider, if it’s not already done so, obtaining a statement from Learning Disability Wales. Learning Disability Wales were part of a report that was produced in February 2022 in combination with Warwick University about the impact in Wales specifically of the pandemic on those with learnings disabilities, for example autism. And we invite the Inquiry to consider obtaining a report from Learning Disability Wales. It’s likely to be of significance to issue 3B, that’s the impact on vulnerable groups of core decisions.

It’s unclear from what we’ve seen so far whether full evidence has been sought by the Inquiry on the adverse impact of NPIs on vulnerable groups in Wales. For example, the impact of those on carers or visitors, the impact of the restrictions on carers and visitors on others. Expertise and data, so has sufficient witness evidence been obtained as to what data was available of the impact of NPIs on vulnerable groups?

And, if that hasn’t already been done, then we invite the Inquiry to do that. One body that may be able to help is Social Care Wales, who would be in a good position to give evidence about that.

The last point about Rule 9s is that written submissions of Covid-19 Bereaved Families for Justice in paragraph 3 invite the Inquiry to obtain evidence in relation to older people in Wales, particularly those receiving care outside a state setting, and we would endorse that request.

My Lady, the third topic I’d like to turn to now is a few procedural matters, preparation for the final hearing. CTI has mentioned the provisional list of witnesses. We would be grateful if we could have an opportunity to make submissions about the provisional list of witnesses when it’s produced. The timing is, of course, difficult. We’re well aware of the difficulties and the pressures that the Inquiry is under. It’s important that the time in which we make submissions is after sufficient information has been disclosed so that they can be effective submissions, but giving us enough time prior to the Inquiry so that they can be made at a time when witnesses can actually be called.

A similar issue, Mr Poole has mentioned that key documents, for example about uncontroversial backgrounds, will be produced by the Inquiry, and draft evidence proposals for witnesses will be produced. Again, we’d be grateful for an opportunity to comment on all of those, and again in sufficient time for us to be able to do so effectively. I’m sure your Ladyship is well aware of this, our client groups have full-time jobs, some of them have protected characteristics themselves, so the more time that can be given to us the better.

Mr Poole has indicated that instructions given to experts won’t be disclosed. We would ask you to consider that issue, not necessarily to disclose those in advance, but to disclose those at the same time as disclosing the reports themselves. And the basic reason for that is that, in some instances, it’s been difficult to understand the contents of the reports without the letters of instruction, so without that context of the questions that were asked, it’s difficult to understand the answers that were given. We, in our submissions at paragraph 31, outline a few particular examples of that happening.

The final point I’d like to raise is context for certain disclosure. We deal with this in our written submissions at paragraph 32 onwards. It’s sometimes been difficult to understand the significance of some of the disclosure that we’ve received, and would be grateful for the Inquiry to consider giving more context about the particular points we’ve raised. One example is WhatsApp messages. So in some instances it’s unclear who was in the WhatsApp group, what its function was, and that makes it difficult or impossible to understand the significance and the impact of those messages.

My Lady, that’s all I hope to cover for today, unless there’s anything else you would like me to address.

Lady Hallett: No, thank you very much indeed, Mr Straw, you make some obviously very important points and I’ll bear them all very much in mind. Thank you.

I think we’ll take a break now. Where is Mr Howells? Oh, he’s there. Right. I was assured that I’d have a clear line of sight, Mr Howells. Maybe if I take the break and we can make sure that I do have a clear line of sight.

I’ll return at 11.25. Thank you.

(11.08 am)

(A short break)

(11.25 am)

Lady Hallett: Now I can see you, Mr Howells.