2. Dr Donald MacAskill

DR DONALD MACASKILL (sworn).

Questions From Counsel to the Inquiry

Lady Hallett: Sorry you have been kept waiting for some time, Dr Macaskill.

Mr Tariq: Dr Macaskill, thank you for your assistance to the Inquiry to date.

There are a few preliminary matters that I wanted to raise with you. Can you please keep your voice up and speak slowly, because we have a stenographer who is taking a note for the transcript. If any of my questions are unclear, please say so, and I will rephrase.

Scottish Care has provided a witness statement to the Inquiry that’s dated 11 July 2023. The statement is at INQ000224524, and you will see that the statement is on the screen in front of you.

If we turn to page 35, there will be a signature which is beneath the personal data. Is this your statement?

Dr Donald MacAskill: It is.

Counsel Inquiry: Are the contents of this statement true to the best of your knowledge and belief?

Dr Donald MacAskill: They are.

Counsel Inquiry: I understand, Dr Macaskill, that you wanted to say something before we get into the substance of your evidence. Here is an opportunity to do so.

Dr Donald MacAskill: Thank you, Mr Tariq.

And I think it’s very important, on behalf of Scottish Care’s care home, home care and housing support members, that I would state at the beginning my own personal but also our organisation’s condolences to the thousands of individuals who lost their lives as a direct result of Covid, but also to the tens of thousands of others who had lost the opportunity to spend their last few months, weeks of their lives because of the measures which were undertaken during the pandemic. So we express our condolences to them.

But I would also want at the same time to recognise and to underline the amazing dedication of frontline women and men who went out to care in our care homes and in other community settings and in individual homes. They are the best of us. At a time of real fear, when the novel coronavirus was presenting itself, they left the comfort of their own homes to care for and support some of our most valuable citizens. Thank you.

Counsel Inquiry: Thank you, Dr Macaskill.

I want to now start with the substance of your evidence and I want to begin by asking you questions about Scottish Care.

Scottish Care is a membership organisation representing the independent care sector in Scotland; is that right?

Dr Donald MacAskill: That’s right. So we represent charitable, not for profit, employee-owned and private providers of older people’s care in care homes, and in the community in care home and housing support.

Counsel Inquiry: As I understand it, Scottish Care has around 350 members; is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: During the course of the pandemic, your interest lay in the field of care homes but also those that were being cared for at home, as your members delivered both of those services; is that correct?

Dr Donald MacAskill: That’s correct, yes.

Counsel Inquiry: These services were delivered to a wide range of people, it could be older people, people with long-term health conditions, people with disabilities, people with learning disabilities and people with physical disabilities; is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: The organisations that Scottish Care represents, they vary in size; is that correct?

Dr Donald MacAskill: Absolutely, they vary from single operators, often family-run operators, charitable organisations of various size, all the way up to national and larger corporate bodies.

Counsel Inquiry: Over the course of the pandemic, your members were at the forefront of caring for some of the most vulnerable people in our society, both in residential care settings but also in individuals’ homes; is that right?

Dr Donald MacAskill: Yes, and the frontline staff employed by our members were very much at the forefront of addressing the challenge of the pandemic.

Counsel Inquiry: I now want to turn to the role of Scottish Care in the pandemic.

It said in the statement of Scottish Care that Scottish Care was at the heart of the debate and discussion around the social care sector, that it provided a detailed and vocal response to the issues faced by the care sector in Scotland. Your statement explains that Scottish Care attended meetings and working groups convened by the Scottish Government, it contributed to guidance that was produced by the Scottish Government and Public Health Scotland, which impacted the sector, and it maintained direct and regular communications with the Scottish Government on the key issues affecting the sector. Is that correct?

Dr Donald MacAskill: Correct.

Counsel Inquiry: I want to turn to the period leading up to 21 April 2020, and in particular look at some of the Scottish Government’s decision-making in that critical period of March 2020 and up to 21 April 2020.

We know that a large number of patients were transferred from hospital to care homes without being tested for the virus in the early stages of the pandemic, and it was not until 21 April 2020 when it became mandatory for hospital patients to have two negative Covid-19 tests before being discharged and for all new care home admissions to be isolated for a period of 14 days.

There is data which shows that between 1 March and 21 April 2020, 82% of the 3,595 patients discharged from hospital to care homes were not tested, and 752 care homes took in untested patients between 1 March and 21 April 2020.

So I hope that that summary contextualises my questions about this period.

Can we turn to the report from Public Health Scotland which is titled “Discharges from NHSScotland Hospitals to Care Homes between 1 March and 31 May 2020”. This report is at INQ000101020, and you will see that the report is on the screen in front of you.

Can we turn to page 6 of the report.

You will see that there is figure 1 on page 6 of the report, and you’ll see that on 13 March it says:

“First Clinical Guidance for Care Homes.”

And this is stated as being: social distancing, essential visits only, accept admissions to the care home if safe, close the home if resident tests positive.

So if we can explore some of these further, what was understood within the care home sector to have been meant by “accept admissions to the care home if safe”?

Dr Donald MacAskill: So before that development of that guidance, we had made representations – and you have evidence of my communications with Scottish Government – that, based on a long period of distrust between particularly residential but also nursing care home providers, we needed a degree of assurance that what was meant by clinical assessment was sufficiently robust. Indeed, in our early meetings with our members online, we had stipulated that at this stage our guidance was, and this remained the case, that providers should not admit new residents unless they were assured about the robustness of the clinical assessment.

We challenged that that should include the testing of those being admitted, both from the community and from discharge from any setting, but particularly an acute and secondary care setting. There were reasons given to us as to why that was not possible, and instead the argument that was made by clinicians was that a robust clinical assessment should be sufficient to enable somebody to be admitted.

On the one hand, hearing all that we were hearing about how important it was to keep flow happening and not to have our NHS hospitals collapse, we were cautious about being the sector which stopped that flow, but on the other hand we were also extremely well aware, not least myself through my international connections and contacts, of what was happening in Italy and Spain and also in France, that the population most at risk was a population over the age of 80, with multiple comorbidities, and that tended to be a population that lived in Scotland’s care homes.

So we were balancing our knowledge that the population most at risk from this novel coronavirus was our population, whilst at the same time seeking robust assurance that if somebody was discharged from hospital, that we could be as assured as we could be that that person was safe and was not coronavirus positive.

Counsel Inquiry: Before we go through the guidance in a bit more detail, I’m interested to find out what your experience and understandings were at the time based on what you were seeing internationally. Are you able to explain that in more detail?

Dr Donald MacAskill: I was a member and still am a member of the Global Ageing Network and also the Commonwealth ageing network, and we were in regular contact, in February and into March, exchanging what was happening in different parts of Europe and more widely internationally, and it was known to anybody in the care sector that the population most at risk was our older population.

And we were already, even in late February and certainly in early March, beginning to identify that the classic symptoms demonstrated as being Covid symptoms were not manifesting in the same way in a population which was particularly old and with multiple comorbidities. So added to the usual characteristics of fever and cough and flu-like symptoms, we were evidencing a loss of mobility, confusion, delirium, issues to do with continence, diarrhoea and vomiting, which were more frequently being manifested as symptoms of the new coronavirus.

So the international social care community was very aware, as we were in Scotland, that this was of significance to our sector, which is why Scottish Care became the first body in the UK, and indeed, as far as I’m aware, in Europe, to issue our own guidance at the end of February for our members.

Counsel Inquiry: Looking at the guidance that was issued on 13 March, the guidance on 13 March refers to “accept admission to the home if safe”. Is the qualifier, “if safe”, is that a clinical assessment that’s being made?

Dr Donald MacAskill: So what is meant there is clinical assessment.

I should say that we were disappointed with the process of the development of the guidance on 13 March, and we’ve presented evidence and papers to the Inquiry to that end.

We found that there was a minimum level of engagement with Public Health Scotland, or HPS at this time, in the development of this guidance, and as was seen both here in the necessity to repeat that guidance. Mainly as a result of our remonstrations later in the month, we found, both here but also throughout the main stage of the pandemic, the lack of engagement and professional respect from Public Health Scotland and its understanding of the social care sector and its unique situation, particularly in relation to infection prevention and control in care homes, to be wholly regrettable.

Counsel Inquiry: You’ve touched upon what you describe, I think, as limited engagement in respect of the guidance that came on 13 March. Is it correct that I think you were only consulted, is it, on 12 March, about the draft guidance?

Dr Donald MacAskill: Yes, and given a quite tight timeframe of a matter of hours to make comments. And not just in terms of admission, we made comment about the reality of how difficult it was to transfer a system of essentially infection prevention and control methodology developed for an acute sector such as a hospital into an environment such as a care home, particularly a residential but including a nursing home, which was first and foremost somebody’s home.

And whilst in words clinicians may have accepted, “Yes, we recognise this isn’t a hospital, it’s a care home and somebody’s home”, what that actually meant in terms of the freedom of movement, in terms of managing and supporting somebody living with later stage dementia, in terms of the importance of mobility and routine and ritual in living in your own home was singularly failed to be understood, certainly at this juncture but I have, unfortunately, to say at several points during the pandemic.

Counsel Inquiry: We will come back to other points in the pandemic, but just so I’m clear, that Scottish Care had issued its own guidance as early as, is it late February?

Dr Donald MacAskill: I think from memory 24 February.

Counsel Inquiry: And when it comes to the guidance that comes from the Scottish Government and HPS, Scottish Care have an opportunity of mere hours to be able to comment on the guidance before it’s published?

Dr Donald MacAskill: Yes.

Counsel Inquiry: If we’re looking at the guidance again, there’s a reference to social distancing. How easy is it to maintain social distancing in a care home?

Dr Donald MacAskill: I think only somebody or a group of people who had no experience of the reality of life in a care home would have under – would have put that there, to be honest.

Care homes are busy, interactive environments where people are constantly moving around, gossiping, laughing, engaged in the lives of each other, moving into each other’s space, and the idea that, particularly when you’re supporting somebody with latter stage dementia, that you discourage contact, especially touch, from that person, who may not understand, is really far-fetched.

So it became hugely problematic for care homes to keep social distancing, particularly in the lives of people with dementia, and it became really traumatic for residents in particular who were used to social interaction, who were used to spending time in communal space, whether that be, you know, watching telly, engaging in an activity or just simply being with people.

It became a massive challenge for most operators and providers to adhere to guidance which was not fit for purpose.

Counsel Inquiry: Looking at social distancing, and you’ve touched upon people with dementia, is it correct that many residents within care homes suffer from dementia?

Dr Donald MacAskill: So one of the challenges then and now, sadly, is that we don’t have sufficient data to properly give an understanding of the number of people living with dementia in our care homes, but practitioners would argue that we’re talking between 80% to 85%. The nature of care homes today, whether residential or nursing, is vastly different from what it was ten years ago. Life expectancy is down at about 14 months compared to about five years ago where life expectancy was three to four years. Very few people move into a care home unless they have underlying significant health conditions, and the majority of those have a neurological condition, in the majority of those it is dementia.

Counsel Inquiry: Did care homes feel pressure – you’ve touched upon, I think, the pressures that care homes were feeling in terms of trying to help the NHS create capacity – to accept patients being transferred from hospitals, and if they did, why?

Dr Donald MacAskill: The answer is undeniable pressure, which was a pressure which some even against their best judgements felt that they could not but address.

And that pressure came for many reasons. In Scotland we have got something called the National Care Home Contract, which is a contract nationally between local government, through COSLA, and care providers. It has very clear terms and conditions, 70% of those in a care home fall under the contract, it’s paid for by the state, and one of those conditions is that a registered care home as part of the contract should not ordinarily refuse admission unless there were very clear clinical reasons not to do so.

So there was that pressure from health and social care partnerships, who were themselves being pressured by the NHS secondary and acute sector to clear the hospitals, and to make sure that people who were fit for discharge were able to be admitted into a care home.

The other related pressure was the constant barrage in the popular media, from politicians and others, about how important it was that the social care sector came up to the plate, and that was – the sector was able to keep the flow going and prepare us for what many considered to be a huge increase in cases.

So there were multiple points of pressure, and many found it very difficult to resist that. That’s the reason that we were arguing for robust testing and clinical assessment.

Counsel Inquiry: You’ve touched upon the pressure being felt by care homes. Jane Morrison, of Scottish Covid Bereaved, yesterday had said that many of the group’s members had experience of family members feeling, in hospitals, pressured into being moved from hospitals into the care environment. Were you aware of similar concerns or pressures faced by patients and their family members?

Dr Donald MacAskill: Yeah, we were.

And moving into a care home is a major decision for anyone. It’s in many senses a sense of bereavement and loss, a loss of a relationship, a home, a dynamic that an individual may have had. It’s a process that has to be managed carefully. And care homes are really good at that, they are sensitive to the fact that the importance of choice of the person having as much voice and control as is possible within their capacity, ability.

So this is a process that has to be managed, and critical to that is that family and informal carers are closely involved in the transition from their own home or indeed from a hospital setting into a care home. All of that was cast aside in many instance, and individual care home managers and staff frequently in our contact spoke about the fact that people were being “railroaded”, to use the term that one person used with me, to make a choice, which was a very limited choice, of: that care home or no care home.

Counsel Inquiry: At this stage, on 13 March 2020, there was no need for a negative test before a patient was transferred from a hospital into a care home. In Scottish Care’s statement, it is said that Scottish Care advocated from early March 2020 that there needed to be a robust clinical assessment – which you’ve touched upon – and testing of residents entering into a care home from both the community setting and also the acute NHS setting.

Do you recall when in March 2020 Scottish Care had come to the view that there needed to be testing of admissions coming into care homes?

Dr Donald MacAskill: Very early, and indeed probably in late February. Again, because of what we were aware of internationally. And I have to place this into some sort of context. I talked earlier about a breakdown and a lack of a relationship of trust. And there were many reasons for that and, you know, I appeared before the Scottish Parliament and its Health Committee a few weeks before and spoke about one of the major issues affecting social care provision was the feeling from social care providers that the priority in all instances – and this is before the pandemic – was being given to the NHS and not least the issue of delayed discharge and the importance of what was called at the time “bed blocking”, and making sure that the flow continued, particularly during winter. So there had always been a pressure to make sure that hospitals were not “blocked”.

In that context, many of our members reported to us a lack of trust in the hospital discharge process in normal times, and I’ve lost count of the instances of hearing from our members of people – what used to be called the “Friday night discharge”, and that was to clear hospitals for the weekend. People were discharged late on a Friday afternoon, often without information being communicated to family, typically and not infrequently without appropriate medication or at least scripts that were able to be taken to a pharmacy out of emergency hours, and in many instances with a lack of or insufficient case notes to enable that transfer to happen positively, both to the community and into care homes. That was the context.

Now, in some parts of the country discharge worked brilliantly, professionally, with a degree of mutual regard and professionalism. In other parts of the country there was simply a lack of trust.

Against that backdrop, we then had the new coronavirus being introduced, and we were very clear as an organisation, listening to our clinical colleagues out in the field, that they needed additional reassurance, and simply saying “We leave this to the professionalism of clinical assessment”, I’m sorry, it didn’t wash at the time, I communicated that to the Cabinet Secretary, and I indicated that what we wanted and needed was testing, to evidence a negative test. Which with nothing else could mean – and we appreciate that testing was for in the moment, but it would mean a reduction in the potential period of isolation for an individual in a care home.

Counsel Inquiry: You referred to the Cabinet Secretary, that’s a reference to Jeane Freeman; is that correct?

Dr Donald MacAskill: That’s correct.

Counsel Inquiry: You’ve spoken about the context pre-pandemic and the tensions between the NHS and trying to have more rapid discharge of patients and the issues around prioritisation of the NHS over the social care sector. Did the pandemic exacerbate all of those issues?

Dr Donald MacAskill: Absolutely. I’m on record as saying that the problems facing social care in January 2020 were still there but accentuated by July 2020.

And one of those was the almost myopic political and media and public attention and focus on the NHS at all costs. And that really hit hard to many frontline social care staff, because even when the pandemic started and we had supermarkets giving priority to NHS staff and to key workers, many of our frontline staff were turned away, particularly by one supermarket who I won’t name, because they weren’t considered to be key workers.

When we started to clap people on a Thursday night, that didn’t include social care staff for the first two weeks. It was only afterwards that they were considered to be of value. The emphasis on “Protect the NHS” everywhere you saw made social care staff feel – and certainly providers of care home and home care feel as if “Here we go again, we’re of less significance and of less value”.

Counsel Inquiry: You’ve spoken about Scottish Care’s position formed in late February, into March around testing. When did Scottish Care start to push that position on the Scottish Government? Do you recall when?

Dr Donald MacAskill: Early March.

Counsel Inquiry: And social care was and is a devolved matter, as is public health.

Dr Donald MacAskill: Yeah.

Counsel Inquiry: So as far as you were concerned, did the responsibility for these important matters fall on the Scottish Government?

Dr Donald MacAskill: We recognise that there were some issues over which Scottish Government had a limited degree of control, such as PPE, such as finance, but we certainly perceived that decisions around discharge and testing as far as capacity enabled were matters for Scottish Government.

Counsel Inquiry: From your interactions with the Scottish Government around this time, was the guidance that just we’ve spoken about on 13 March from – it was Health Protection Scotland at the time, that later on became Public Health Scotland – was that endorsed by the Scottish Government?

Dr Donald MacAskill: The 13 March guidance –

Counsel Inquiry: Yes.

Dr Donald MacAskill: – and all subsequent were endorsed by Scottish Government, yes.

Counsel Inquiry: It is also said in Scottish Care’s statements that Scottish Care advocated that all individuals entering a care home should be treated as Covid positive and therefore barrier nursed for a period of 14 days. What is meant by treating all residents as Covid positive when entering a care home?

Dr Donald MacAskill: So on the basis of what we’ve talked about, our lack of trust in the nature of a clinical assessment at point of discharge and in the absence of an agreement to undertake a test, we were encouraging our members to engage in barrier nursing, which is high intensive infection control nursing. But bearing in mind that is only possible in care homes which are nursing care homes rather than care homes which are residential care homes, who would neither have access to the relevant PPE or the skills to engage in barrier nursing.

And even those care homes which were nursing care homes would have and did have a limited amount of supply to enable them to barrier nurse. It’s not that care homes, particularly nursing care homes, were not used to infectious disease, very experienced with norovirus, very experienced with flu, but the nature of this novel – new – virus meant (a) that there was a lack of understanding within the sector, as there was across the health and social care sector, about what was needed in terms of nursing somebody, but certainly the principles of barrier nursing are about isolation, high levels infection and – control management, but they are again to reiterate extremely difficult to undertake in an environment where you are working with people with dementia and where you, as became very clear in the pandemic, have real constraints upon staffing.

Counsel Inquiry: So in practical terms, many of your members would not have been able to barrier nurse residents; is that correct?

Dr Donald MacAskill: They wouldn’t have been able to barrier nurse the majority of residents, no.

Counsel Inquiry: In Scottish Care’s statement, it is also said that from March 2020 Scottish Care advocated that priority be given for testing to care home staff and those providing care at home, even in the context at that time of the very limited testing capacity that existed. Why did Scottish Care think that this group should be prioritised for testing in the early weeks of the pandemic?

Dr Donald MacAskill: Our overarching concern, and again I articulated this at the time, was that we recognised that our population were the most at risk from this novel coronavirus, and that even accepting an environment where there was a restricted number of tests available, that instead of – sorry, in addition to a focus on the NHS we should also be focusing on social care settings. First of all, on the residents in those settings; secondly, on staff, especially in homes where there had been cases, because for a considerable period it was only after five positive cases had been detected that additional measures were introduced. So we wanted to get ahead of the game by using the limited number of tests that we had available to engage in preventative testing so that we could monitor not just after an outbreak but before an outbreak happened. And we argued with those who would listen that as well as utilising tests in a clinical acute NHS setting, where practice around infection prevention and control should have been more regular and advanced, though admittedly the range of nosocomial infections might question that, that priority needed to be given to social care. But in an environment where the whole concentration was on secondary and acute NHS, that aspiration came to nothing.

Counsel Inquiry: In the context of testing for staff, Scottish Care say in its statement that staff working in care homes were likely to pose the greatest risks to those being supported in care settings. Why would you say that?

Dr Donald MacAskill: Because the majority of residents in the care home weren’t going anywhere. They were a static population. The population which was moving was staff coming from their own homes, living in communities. And, you know, we very clearly and quickly mapped that in communities where there were high levels of incidence of the virus, then not surprisingly there was greater risk and occurrence of outbreaks within care home communities, because people live in communities. And whilst there were some care homes where staff literally left their families for a month or six weeks to move into the care home, to literally pull up the drawbridge, those were the exception, and what was happening was an ingress of staff from community into an environment where individuals were at greatest risk.

So that’s one of the reasons why we said it’s really important that we start to test staff in a preventative manner, and fortunately in many instances what happened was that we started to use tests after an outbreak occurred.

Lady Hallett: Could you speak a little more slowly, Dr Macaskill?

Dr Donald MacAskill: Sorry.

Lady Hallett: I have the same failing, so we’re in the same club.

Mr Tariq: We have spoken a little about staff who were working in care homes. What about staff who were providing services for those in their own homes? Would these types of employees be moving around multiple homes over the course of a day?

Dr Donald MacAskill: Absolutely. And whilst there was a challenge and we’ve already – the Inquiry has already heard of the virtual overnight withdrawal of support for individuals in their own home, services which did continue meant that staff were, you know, on a typical day, visiting 12, up to 20 individuals. So that was different households engaging in different levels of care and support. But at this stage, almost certainly, a – personal care and intimate care and support.

The care at home workforce, I remember using the phrase “they are the forgotten frontline” in late April, early May, because all the focus had been placed on care homes, both in terms of testing and other intervention including PPE. And this workforce, who are significantly larger than the workforce in care homes, had largely been forgotten.

Counsel Inquiry: So in terms of your perception of prioritisation, you’ve got the NHS that was being prioritised, then you’ve got care homes, but then below that is those that are people that are being cared for at home?

Dr Donald MacAskill: Absolutely.

Counsel Inquiry: Now, what was the impact on the workforce in the care sector of staff not being prioritised for testing?

Dr Donald MacAskill: I think – you know, and I’ve been looking at some of our early video webinars, I think it’s really difficult for those of us for whom this has been our world for the last two or three years to forget the sheer terror and fear felt by frontline staff in care homes and going out to visit people in their own home.

Nobody had the depth of knowledge that was needed to give assurance to people about how you contracted this disease, what the risks were to yourself, and the palpable fear that individuals felt in working for care – in care was extremely high. And it’s to their credit that individuals continued to get up in the morning, leave their families, and go out to care homes and to other people’s homes. In that context, I think the – there was a sense of despair and there was a degree of resignation, “Well, of course they’re going to prioritise the NHS”, because that’s what they were experiencing, but there was also a growing sense of anger, that: why should we be putting ourselves at risk without the level of protection which we, as experienced professional clinical staff in care homes and in communities know, even if we’re not employed by the NHS?

Counsel Inquiry: In the absence of that workforce being prioritised for tests, did that lead to staff having to self-isolate and taking longer absences from work if they came into contact with somebody that was Covid positive, and if so what impact did that have on the care home being able to deliver the services to its residents?

Dr Donald MacAskill: One of our arguments for extending testing and for that to include staff was also for it to include staff who had to self-isolate because a family member or they had been in contact with an individual. In early April in particular, we were at a point at which we were facing a very real risk of collapse of our workforce with more and more individuals having to isolate as the virus became more prominent and prevalent in the community. And introducing testing, which eventually did occur, to enable staff to return to work earlier, safe in the knowledge that they weren’t at that time positive, would have made an immense difference at a time of real criticality.

Counsel Inquiry: At this time of real criticality where there is reduced workforce because people are having to self-isolate, what impact did that have on the residents in care homes?

Dr Donald MacAskill: It had a profound impact. We were – we advised our members to lock down on 12 March, so that was the day before the guidance came out, and it was a couple of weeks before national lockdown. So care homes were used to lockdowns, not least for norovirus, but they were time-limited and they were proportionate to the risk which was occurring. By the time that we’d got to April, a number of us were already beginning to ask the question about: what impact of a long lockdown, what was that going to be? Yes, we were keeping people safe, and I remember writing this, life is not just the ability to draw breath in and out, it’s also the relationships, the purpose that you have in continuing to live. And we were hearing from frontline staff as early as April in 2020 that people were turning their face to the wall, that they were losing a sense of desire to continue, they were losing a sense of purpose, because they didn’t have contact with their family and they didn’t have contact with their wider community.

The burden of that upon staff, who were depleted in number, who were having to manage Covid risk, who were having to manage under a guidance system and an infection prevention and control methodology which was not fit for a social care environment, was massive, when most of them would have wanted to spend time with individuals who – unlike the patient in an acute setting, who the staff is unlikely to know, these were people who were known to staff, in some instances, for many years, and they could see that deterioration right in front of their eyes.

Counsel Inquiry: Were you raising these issues directly with the Scottish Government in March 2020?

Dr Donald MacAskill: The issue of deterioration and decline – so we thought it entirely appropriate that lockdown happened for a period of time because that had been the pattern of behaviour and we felt that it was a legitimate action to achieve an end which was to keep people safe. As April began to – sorry, as April came and as April began to move forwards with no indication, except actually a worsening of the disease, a number of us – and I said – you know, I wrote articles, I appeared in the media, I engaged with a number of individuals at government about “we need to start thinking about ways in which we can manage the pandemic without the level of restrictions on social interaction and engagement”, but instead what we got, later on, was the establishment of a clinical approach to care homes which turned them into clinical environments.

Counsel Inquiry: We will come back –

Dr Donald MacAskill: Yeah.

Counsel Inquiry: – to issues from about May 2020. I want to focus on the initial phase in March leading up to 21 April where the guidance on testing was changed.

The Inquiry understands that you had a meeting with Jeane Freeman, who was the Cabinet Secretary for Health and Social Care, on 18 March 2020 to discuss issues relating to the care sector. Was your broad position at the time that the existing guidance which had been issued by, at the time, HPS on 13 March was not fit for purpose?

Dr Donald MacAskill: At that meeting we had had, after the 13th, already two meetings of our members where over 250 members attended virtually, and we were being told – and we communicated this to the CMO’s office and to others, and indeed that communication led to a change in the guidance the following week, that it simply wasn’t working, that we needed a degree of more robust clinical assessment at point of admission, that we needed a sensitivity to the implementation of infection prevention and control, that we needed to have a bit of a reality check about how reasonable it was to expect somebody living with dementia to remain in their own room and not to use public environments and not to move around. So there were a whole list of areas which we had especial concern over, but one of the predominant ones was in relation to admission and testing, which is the subject of a considerable amount of the conversation with Ms Freeman.

Counsel Inquiry: Can we look at the briefing paper that was prepared for Ms Freeman in advance of her meeting with you?

Dr Donald MacAskill: Yeah.

Counsel Inquiry: This briefing paper is at INQ000261341. You will see that it says at the top:

“Briefing for Cabinet Secretary for Health and Sport”, and it says “Meeting with Scottish Care”, on Wednesday 18 March, and the meeting is at 1.30 in the Scottish Parliament.

Can we look at page 2, and under the heading “Testing”, here it says, and this is – by reference “they” is Scottish Care:

“They have concerns regarding the current testing arrangements and would like:

“- people tested before they are discharged from hospital to care homes so that care homes feel confident in accepting admissions from hospitals; and

“- testing for frontline social care staff in order to avoid 14 day isolation periods to enable them to return quickly to work.”

Thereafter, this is then the briefing paper for Ms Freeman, it’s telling her what lines to take, and it says:

“Testing for patients/people is currently being triaged into four different categories in the following order 1) patients needing critical care/ventilated 2) admissions to hospital with pneumonia/influenza like illness or acute respiratory distress syndrome, 3) clusters of outbreaks such as in care homes and 4) if there is capacity – testing of staff.”

Then bullet point number 2:

“Testing for staff – currently neither health or social care staff are being tested unless they fall under categories 1 or 2. This is mainly due to testing capacity issues with [laboratories] etc, however the policy of testing staff may change.”

So at this meeting I think you say that the focus of the meeting was around the admission criteria. Did you explain the sorts of issues you’ve raised with me today to Ms Freeman at the meeting with her on 18 March?

Dr Donald MacAskill: Yes, and as you will have seen from the note, they were expecting the line that I’ve addressed to you today, which is the lack of trust and our desire to have a more robust process of testing to give clinical assurance.

Counsel Inquiry: What was her response?

Dr Donald MacAskill: As far as I can recall, Ms Freeman’s response was as stated in the lines to be adopted, which was that there was insufficient numbers of tests available and that priority would be given to those who were being admitted to hospital who may have manifested pneumonic or other respiratory conditions and that where there was a cluster in the care home.

I remember saying, you know, that’s a bit like bolting the door after the horse has bolted. That yes, we need to know if there is an outbreak in a care home and how many individuals may have the virus as a result, and how many staff, though that wasn’t considered for testing in that regard in that time. We wanted to get ahead of the game. And I go back to what I said earlier, it wasn’t that we were saying “Don’t use what tests you have available for the NHS”, but begin at least to start thinking about the relative priority which you need to give to social care.

And I remember saying at the time that, you know, the lack of the engagement of social care operators in pandemic planning in all the exercises which we and the Inquiry knows about, is illustrative of the fact that if social care operators are not there and not social care policymakers, if social care operators are not there at the table, then clinical care decisions are going to be misplaced, as it evidenced in this regard.

Counsel Inquiry: Do you think she appreciated or understood the gravity of the situation that you were telling her in the early weeks of March leading up to this meeting on 18 March?

Dr Donald MacAskill: I’ve absolutely no doubt that Ms Freeman appreciated that what I was telling her was what I believed and what was being communicated to me by our members. I had frequent meetings with Ms Freeman and I think she would probably agree that we did not always agree, we had often robust exchanges, but both of us sought to be constructive and positive in moving things forward.

I understood and understand the emphasis on the NHS from her perspective, but I have to say at the time, as it evidenced here, but also subsequently, I do call into question the prioritisation of the acute and secondary NHS with the limited degree of resource available at the expense of the social care sector and those who it supported.

Counsel Inquiry: On the same day that you met with Ms Freeman, the Inquiry has seen a paper that was prepared by Derek Grieve from the Health and Social Care Directorate of the Scottish Government for Ms Sturgeon and Ms Freeman. This is a paper that’s dated 18 March 2020.

And it’s at INQ000222973.

You will see that, on page 1, at the very top it says that the – this is a paper that’s addressed to the Cabinet Secretary for Health and Sport and the First Minister, and it’s titled “Covid-19 testing and surveillance”, and its purpose is, at paragraph 1:

“To provide initial advice on our approach to Covid-19 testing and monitoring following the decision to move from containment to delay in response to the outbreak.”

Can we turn to page 2, and I want to look at paragraph 11, and if I may read:

“If our aim is ultimately to contribute to saving lives then we will not be able to limit testing to hospitals. A substantial proportion of those who are likely to be infected by the virus will remain in a community setting, in particular care homes. Colleagues in HPS are currently modelling this demand. What we know is that there are 35,989 residents in 1,142 care homes. Testing a significant proportion or all of these residents would significantly exceed the available capacity in laboratories.”

So you will see that the advice that was being given on 18 March to Ms Sturgeon and Ms Freeman is that the testing arrangements would need to be expanded to save lives and that care home residents are identified as being those particularly at risk.

There is also a reference you see to “Colleagues in HPS … currently modelling this demand”. Do you know what the issues were around modelling of care homes?

Dr Donald MacAskill: In relation to that specific section, I don’t know what the issue for colleagues at HPS would have been, but as you have, I think, heard at different points during the Inquiry, the issue of data in care homes has been a long-lasting issue of concern, and the availability of social care data, and very much, you know, pre-dates the 2020 pandemic.

I sat in many rooms talking about the data gaps which existed in social care. But that gap was itself the result of a myopic concentration and data in the NHS and particularly around delayed discharge. Had we given as much resource to developing datasets and supporting the social care sector to give and develop data, then we would have had more understanding.

But actually in this regard and with regards to testing, I’m not at all convinced, having seen some of the other written evidence statements from other parties, that it was just an issue around availability. And whilst Ms Freeman makes that statement very clearly in her own written statement that “we didn’t have sufficient tests”, I note in the statement from Ms Sturgeon, evidence from the CMO at the time, of a resistance to using testing per se because it was a – there was a danger of it creating a false positive, and indeed that it wouldn’t assist the clinical management of an individual in a care home whether or not you knew that they were positive. I’m paraphrasing that.

So I do wonder, and I think it’s something that we need to ask, whether or not there were clinical resistance to undertaking testing within a care home environment, or indeed any environment.

From our perspective, we were very clear: testing wasn’t a panacea but it was an additional tool to give assurance, to help individual residents in a care home reduce the risk of being isolated for long periods of time and to enable staff to return to work as quickly as possible.

Counsel Inquiry: You’ve referred to other evidence that you’ve seen, and I think that’s a reference to witness statements that you’ve seen –

Dr Donald MacAskill: Yeah.

Counsel Inquiry: – within this module. But in the context of what you were being told at the time, and we’ve seen the lines that Ms Freeman was given to take in her meeting with you, was the absence of testing in care homes for residents that were being discharged from hospital into care homes, was a reason the absence or lack of testing capacity?

Dr Donald MacAskill: Ms Freeman indicated at the meeting that lack of capacity was the main reason, but around that at the time there was a clinical discussion around the effectiveness of testing and the risks attached to it.

Counsel Inquiry: If we look at what is being said in the paper, what is being mentioned is that there are nearly 36,000 residents and it’s in that context it says “Testing a significant proportion or all of these residents would significantly exceed the available capacity”. But what is not being said here, as far as I can see, is there being some analysis of one of the positions that Scottish Care had advanced, which was: we ought to be prioritising testing of those that were coming from hospitals into the care homes. Is that correct?

Dr Donald MacAskill: That’s correct.

Counsel Inquiry: We now have seen from later data that was published by PHS – this is a report from October 2020 – that between 1 March and 21 April 2020, 82% of the 3,595 patients discharged from hospital to care homes were not tested. Therefore in the context of trying to prioritise those people for testing, one would have perhaps only required a much smaller number of tests than the 36,000-plus that is being discussed in this briefing paper. Is that right?

Dr Donald MacAskill: That would be right.

Counsel Inquiry: Whilst the data from PHS around the number of discharges from hospitals into care homes of people that were untested only came out in October 2020, would Scottish Care have been able to assist the Scottish Government, if the Scottish Government had come to Scottish Care and said “Can you give us a broad estimate of the number of admissions that are happening from hospitals into the care homes over this rough period?”

Dr Donald MacAskill: We would technically have had the ability to do so by asking our members. We probably wouldn’t have had the capacity as a small organisation to engage in that exercise but local health and social care partnerships could have gained that information from providers.

Counsel Inquiry: So it might have been that whilst – one doesn’t – needn’t wait until October 2020 to at least get a rough ballpark figure in March 2020 if one is looking for smaller testing capacity for that limited group of people being admitted from hospitals into care homes; is that correct?

Dr Donald MacAskill: Yeah, I think so. So if what lies behind is the assertion that: could we have – from the limited capacity that we were told – have prioritised those being admitted into care homes, could we have used those tests, then the numbers certainly say yes. Our argument was that the lives of those moving into care homes but also those who were residents and staff in care homes should have had as equal a priority as those working in NHS settings.

Counsel Inquiry: You have provided documents – or, before I turn to documents, there was some evidence yesterday from Roger Halliday and Scott Heald that data relating to the number of people going between care homes and hospitals and the number of people entering care homes from the community was not available at the time. Is it your position that whilst the exact numbers might not be available at the time, that there would be a way, such as contacting your organisation, so that you then connect the Scottish Government to some of your members, where one can get a ballpark figure if needs be?

Dr Donald MacAskill: It would have been very difficult, particularly in the midst of an emergency situation, as we were in at this time, for that exercise to be carried out. One of the continual issues facing the care sector, both in care homes and in home care, is the lack of robust data, and very little overarching data analysis work has been undertaken.

So we could have asked the question. Whether there would have been an ability to respond at local level at the time would have been challenging. And though data was developed, what became known as the Turas platform, that was during the stage – during a relatively early stage of the pandemic, in order to give the whole system the information that it needed.

Counsel Inquiry: Would Scottish Care or your members be able to at least provide the Scottish Government some ballpark that maybe 3,000 tests are needed –

Dr Donald MacAskill: Yes.

Counsel Inquiry: – not necessarily the 36,000 tests?

Dr Donald MacAskill: Yes. Nobody came to us to say or ask “How many tests do you think would be needed?” in order to enable admission to care homes from either the acute sector or, importantly, from the community, because there continued to be need in the community of people who weren’t able to live independently. And lockdown, we often forget, impacted on the ability of families to care for individuals, especially with geographical distance. So there was a demand from the community to move into care homes as much as there was from hospitals.

Counsel Inquiry: Where some of the evidence the Inquiry’s heard is that that sort of data was lacking, and if you put yourself in the position of the Scottish Government in March 2020, would an obvious source of trying to at least establish what that figure might be, would it not be contacting Scottish Care, considering there was already direct lines of communication?

Dr Donald MacAskill: That could have been a means of communication, but equally if I was running the Health Department I would contact the hospitals who were discharging individuals into the community, because they have very robust data at point of discharge and had spent years developing that whole framework because of the – as I said earlier, the concentration and focus on hospital discharge. So they would have evidence of where people were moving to, which is the evidence that Public Health Scotland later used.

Counsel Inquiry: And that would have been evidence that would have been available in March 2020 had somebody sought to try to explore it or at least estimate what the numbers might be?

Dr Donald MacAskill: I don’t think it’s beyond the realms of very practical possibility for that data to have been gathered in very short order.

Counsel Inquiry: You’ve provided some documents to the Inquiry which show the type of issues that your members were raising with you around this time.

Can we look at an email that Scottish Care received on 25 March 2020. This email is at INQ000249952.

The subject heading of the email is “Admissions Criteria for Care Homes”. And if we can look at this second email, and it’s addressed – it’s sent to your organisation, from one of your members, and it reads:

“Hi Karen/Donald.”

Is Donald a reference to you?

Dr Donald MacAskill: It is.

Counsel Inquiry: If I can read from the second paragraph, it says:

“The sector needs much clearer admissions guidance and policy from Central Government/[Care Inspectorate] on how we can admit Residents.

“What we have at present is dangerous.

“I appreciate the NHS is at breaking point.

“We are there 100% to help.

“But we have a duty of care to our Staff and Residents and we are breaking so many codes by being forced to take in admissions the way we are when it’s not safe and breaking so many codes by refusing as well. Dreadful dilemma.”

So your member here accepts that there is a focus on creating capacity for the NHS, and that care homes are part of assisting in that strategy, your member says they’re 100% to help; is that right?

Dr Donald MacAskill: Yeah, I think that sentiment articulates very clearly and succinctly what was being said by dozens, hundreds of our members. They were caught between the stirrup and the ground.

Counsel Inquiry: Can you describe what the dreadful dilemma was facing care homes at this time in March?

Dr Donald MacAskill: I think the dreadful dilemma goes to what I said earlier, which was we needed guidance which gave us robust assurance that as much as possible, in the constraints of a new virus, that people entering the care home as new residents or as returning residents were Covid-free and as safe as possible.

And the other side of that dilemma was the desire to support the NHS when there was the perception that the NHS could be overtaken by the rise in the number of cases. And the dilemma faced by many managers and staff at local level was: how do you keep people who are existing residents and staff safe and at the same time recognise that – if somebody’s fit for discharge, a hospital’s certainly not where they want to be, and they should be discharged, either home to the care home or into the care home for the first time. So how do you balance both of those whilst at the end of the sentence recognising that there were pressures, because of contractual pressures and existing relationships with health and social care partners, not to break, in this case, the National Care Home Contract.

Counsel Inquiry: Is that what the reference to breaking codes means?

Dr Donald MacAskill: Yeah.

Counsel Inquiry: If we read on:

“Scottish Care needs to sort at least Guidance for Homes in my view and be much much more specific and proactive to ensure our Sector is acting as correctly and professionally as we can at this unprecedented time. There’s multiple things we could do to make it at least safer.

“The NHS/SW Policy seems to be ‘NHS need the beds so your taking them’.

“Worrying way to work.

“So greatly flawed and I don’t like to be emotive but a disaster waiting to happen is probably a balanced phrase to use.

“A few worrying points.

“Here’s what we seemed to be getting told.

“- ‘as long as you keep them isolated in their bedrooms for 7 days’ …..there’s too many flaws to list regarding this so I’m not going to start….but just one is not Care Homes have dedicated staff in dedicated isolation or separation areas.”

So if we pause there, for whom was there a seven-day isolation requirement? Was this positive patients?

Dr Donald MacAskill: So the guidance, both the 13th and the later guidance, indicated that individuals should be isolated for a period of seven days, because at that time the sense was that the virus would manifest itself within a seven-day period, and if somebody was not positive at the end of that seven-day period then they were safe to move around and engage in other activity.

So the recommendation in the guidance and certainly our recommendation was that if you cannot be sure about the status of an individual, and that means if you can’t do a Covid test, then you should as far as possible isolate that person for seven days, and ideally barrier nurse that person. But I’ve already talked about the impracticalities and the availability of staff and resourcing like PPE to enable that to happen on a wide scale.

Counsel Inquiry: If we read on in this email, it says:

“Cross infection rates of Covid-19 is very high in prepared well trained ICU units and hospital units never mind a communal care of 50+ beds.”

Then:

“ - ‘as long as staff wear the appropriate PPE’ – That’s not possible. No Care Home has the appropriate equipment. None. A low grade face mask, a plastic apron and a pair of latex gloves is not the appropriate equipment for barrier nursing a potential carrier transferred from a high risk area in the middle of a deadly highly contagious Pandemic by a Care Assistant with no training in High Risk Infectious Diseases in a Care Home not equipped or designed for such.

“- ‘tell your staff to follow barrier nursing/infection control/isolation good practice’….I have friends who are Doctors/Intensive Care Staff/Anaesthetists/Nurse lecturers who are as trained as anyone in this in the very short time anyone has had (and have at least had some training previously for such events) and they feel exposed and underprepared in their PPE management and practice with better equipment. Many are frightened by this disease and its potential for spread….never mind an army of Care Home Carers and Elderly Care and Dementia Staff.”

So is the point here that infection control measures that might be appropriate in an acute setting just aren’t going to work in a care home?

Dr Donald MacAskill: Yes, and it’s the sort of issues that I’ve reflected earlier about, you know, a containable infectious unit in a hospital is “easy”, in inverted commas, to manage, to curtail, but when you’re talking about an environment with free flow of individuals, with individuals who might remember for a minute what you’ve said to them but then will forget why they shouldn’t touch that or why they shouldn’t go and speak to somebody or why they shouldn’t go into that room, it becomes really difficult. And I think what the writer is indicating is that with this new virus even those who were very skilled and experienced in infection control and management were really anxious and worried, that fear I spoke about earlier, and even they struggled in such an environment. So why did we expect an under-resourced and understaffed social care sector to be able to step up to the plate when the NHS wanted to clear its decks?

Counsel Inquiry: And part of that, in your witness statement, you explain for the cause of this guidance, I think you describe Public Health Scotland as being distant and detached from the care sector during the pandemic and not appreciating the practical requirements of the sector. Is guidance such as this the manifestation of Public Health Scotland not understanding, in your words, the care sector?

Dr Donald MacAskill: I think this was the beginning of an evidence that HPS and then Public Health Scotland didn’t fully understand the unique particularities of delivering social care. They clearly understood acute and secondary care settings, but at various points what I began to call an IPC fundamentalism failed to appreciate that a care home, or indeed a person’s own home, was not equivalent to or the same as an acute sector. And that perhaps was enshrined in an example which I frequently heard, when the process of inspections and scrutiny using these IPC standards began in the care home sector and when the care home sector was literally hung out to dry on failing to achieve these standards, where a common complaint would be that in an individual resident’s care home, especially a resident with – living with dementia, articles of significance, of memory, items which are important to them were often described as “clutter which risk infection and should be removed”. So care staff were told by IPC specialists “get rid of that stuff”, and yet these objects were intrinsic markers of identity for that person, they were things that rooted them to their self, to their family and their story, and yet they became for IPC specialists objects which were a risk of infection.

I think we failed to balance the rights, the individuality of individual care home residents in guidance which was developed by people who had no contextual understanding and, to be blunt, showed no interest in gaining that understanding from people like myself and other practitioners, that that guidance treated people as a group, as a blanket entity, instead of the individuals with rights and autonomy which they deserve to be treated as.

Counsel Inquiry: We may have time to come back to that, but I want to finish with this email, if we can read on the next section, it says:

“Also the position of ‘if a Resident gets Covid-19 they stay in the Home until the recover or die’ is again a real worry – how does that work with the main aim of ‘protecting our elderly and most vulnerable’??? It may meet the other aim of ‘protect the NHS’ but it doesn’t meet the first one.

“Again, surely there’s a better way.”

And that’s a matter that’s touched upon in Scottish Care’s statements, it says that the guidance that was published from 13 March caused confusion within the care sector which led to the belief that individual residents who were Covid-19 positive should not be transferred to hospitals, and I think in the statement there’s a reference to a presumption of a blanket ban on care homes transferring residents who had tested positive to hospitals.

Can you explain why care homes had come to believe that there was a form of blanket ban on transferring residents into hospital?

Dr Donald MacAskill: They arrived at that belief because it was their experience, in numerous instances, of attempting to gain access to a hospital or indeed to a GP to enable an admission to hospital. There developed very quickly after the 13 March guidance was produced until later on in the month where significantly following our remonstrations and from work that we did with other clinical colleagues, a – there was the presumption that if an individual contracted Covid in a care home then they should be supported and enabled in the care home and should not be transferred out of the care home. Now, in many instances I’m not denying that for many individuals that was the right clinical decision, to support an individual, often with palliation, to enable the end of their life in as supportive and dignified manner as possible. But the presumption that that should be the result and the end decision and clinical assessment for all is simply wrong.

And at the same time I was commenting publicly about the draft ethical(?) framework which was developed by the clinic – by the CMO at the time, which had used age as a proxy for decision-making should we get to a situation where there were limits on resources available for clinical intervention. And that existence of an age proxy, age discrimination, was evidenced, I believe, in the presumption that if somebody developed a condition such as dementia in a care home they should not ordinarily be transferred to hospital. And it wasn’t just – sorry, Covid.

It wasn’t just Covid that was preventing somebody being transferred, it was other conditions where ordinarily they might have been transferred because of the desire to make sure the NHS acute and secondary setting was as clear as possible. And I have absolutely no doubt that individuals whose lives could have been saved were not saved because of the nature of that uncertainty caused by this guidance.

Mr Tariq: My Lady, would this be an opportune time to pause?

Lady Hallett: How much longer do you think you have?

Mr Tariq: I was planning on being maybe around 15 more minutes.

Lady Hallett: And I think there is one question from Ms Mitchell.

Mr Tariq: Yes.

Lady Hallett: Very well, we will break now and I shall return at 3.05.

(2.50 pm)

(A short break)

(3.05 pm)

Lady Hallett: Mr Tariq.

Mr Tariq: I’m obliged, my Lady.

Are we able to go back to the email that was on screen that, if you recall, Dr Macaskill, we were looking at this email. If I can read on from the paragraph that begins:

“I don’t have a problem taking Residents.

“I absolutely have a problem with how this is being forced on us and implemented.

“It’s so flawed I don’t know where to start.

“The Horse may well have bolted on this though for some or many Care Homes and their Staff and Residents….but we surely can find a better way from now?”

Your member in this email has described the admission criteria for care homes in March 2020 as a disaster waiting to happen. Do you agree with your member’s sentiment?

Dr Donald MacAskill: I think he was reflective of the views of many people that the lack of robustness in those guidance, the prioritisation of the NHS, the presumption that people should not be transferred to hospitals, the level of presumption around what it was like to manage somebody in a care home, an IPC fundamentalism, I think he was absolutely right, yes.

Counsel Inquiry: So you would share, as at March 2020, being able, with all the experience and knowledge that you had, including seeing what was happening around the world, your view was that this was potentially a disaster waiting to happen?

Dr Donald MacAskill: Our view was without the issues I’ve talked about today, and to a certain extent that began to be sorted by the end of March with the additional guidance, we got closer to a set of guidance which was more appropriate. Unfortunately, what we then saw was a period of scrutiny and inspection and implementation of guidance which was just as insensitive to the context of a care home as some of the guidance.

Counsel Inquiry: There was between your meeting with Jeane Freeman on 18 March – sorry, 13 March – sorry, 18 March – so between your meeting with Jeane Freeman on 18 March and the change of guidance on 21 April, there was 34 days and – 34 days that it took from Jeane Freeman’s meeting with you to the Scottish Government’s guidance and the PHS guidance coming to the position that had been suggested by you, which was testing of admissions into care homes.

Why were there, as far as – to the best of your knowledge, why was there this delay of 34 days between Scottish Care meeting with Ms Freeman and the guidance being updated to reflecting the position that Scottish Care were advocating for?

Dr Donald MacAskill: I’m not in a position to answer that, but all I can say is that we continued to make overtures during that period.

Counsel Inquiry: And as we know, on 21 April Ms Freeman announced that Covid-19 patients discharged to care homes should have two negative tests before discharge, and all new admissions should be tested and isolated for 14 days on arrival in the care home.

What were you being told about the rationale now, on 21 April, for having two negative tests?

Dr Donald MacAskill: The primary reason given to us was the argument that there was sufficiency of testing availability.

Counsel Inquiry: What was the impact on residents of Scottish Government delaying till 21 April before being in a position to introduce this guidance?

Dr Donald MacAskill: All I can say is, from the perspective of our members and what we were hearing from frontline staff, was an absolute conviction on their part that unnecessarily people died during that period of time, and I’m very aware of Public Health Scotland’s statistical minimum assessment of discharge impact, but as I said when that report came out, statistics tell one story but if you go and speak to the women and men who worked in care homes, they will tell you a very different story.

Counsel Inquiry: We know that beyond 21 April 2020 there were still issues that were arising in relation to discharge of patients from hospitals into care homes. What were those issues that existed after the guidance had been up updated?

Dr Donald MacAskill: Regrettably there were instances where it became clear that assurances that the policy was being implemented were not upheld and people were discharged, as they had been before, without robust clinical assessment, without testing or being tested at an inappropriate time. You know, for instance, there was examples of people being tested when they went into hospital but not at the point of discharge. So – and both into the community and into care homes. So by no means, despite a very clear ministerial lead, did clinicians and practitioners in the acute and secondary sector follow the rules at all times.

Counsel Inquiry: I now want to turn to another issue that you’ve touched upon, which is around visitor restrictions in care homes, and we know that care home residents were subject to quite severe restrictions for many months, including bans on visits, being unable to leave the home, being cared for primarily in their room. What was the impact of these restrictions on the health and wellbeing of residents?

Dr Donald MacAskill: It was profound. It’s difficult to imagine that level of restriction happening to any of us, but when it happens to somebody with limited or fluctuating cognitive ability, it was deeply traumatic for them. I would also say it was deeply traumatic for staff who quite frequently used phrases like “We felt as if we were wardens”. Previous to the pandemic you could count on two hands the number of incidents of complaints around visiting, around access between family members and care homes, and yet instantly over a period of time care home staff were put in an invidious position of keeping people apart who they knew wanted to be together. And they had to do so by following guidance, but they also had to do so because of fear of the violence(sic) and fear of any repercussions that might follow as a result of them appearing to breach the guidance.

So it was an invidious position for staff but, much more traumatically, it was a devastating experience for residents, their families, and undoubtedly caused a harm which, whilst it may not have been brought about by the virus, was certainly brought about by the protective measures.

Counsel Inquiry: In Scottish Care’s statement it has said that as early as April 2020 Scottish Care made representation to the Scottish Government that the restrictions on visiting to care homes was disproportionate, that it was failing to meet the pastoral needs of individuals and having a traumatic effect on residents and families. It is also said that Scottish Care called on the Scottish Government to adopt a human rights-based approach to visiting in care homes.

We’ve heard some evidence this morning about a human rights-based approach in the language of the Scottish Government’s policies. What do you mean by calling on the Scottish Government to adopt a human rights-based approach on this issue?

Dr Donald MacAskill: You will be aware that previous to the role I undertook at Scottish Care I ran a human rights consultancy for nearly a decade and a half, so I was very aware of what a human rights-based approach should be, and indeed had recently lectured on the difference between the rhetoric of human rights and the reality of implementation. So for me very clearly, in terms of visiting restriction, one demand with which made, which was never listened to, was the necessity of upholding and undertaking a human rights-based assessment. That did not happen on the visiting restrictions.

But the principles of human rights best practice, of enabling voice of ensuring participation, of treating each individual on their own – in their own right, of ensuring that no harms resulting in terms of Article 3 but also Article 8 in terms of the right to family life, the balancing of appropriate privacy, we continually said we needed to adopt a human rights-based approach which does not treat care home residents as this amorphous group but addresses the particularity of each individual.

Care homes spend most of their time talking about and engaging in person-led or person-centred care and support. Overnight that was thrown out because of the constraints put upon frontline staff and providers of care.

Counsel Inquiry: So is it your position that in respect of visiting restrictions the Scottish Government hadn’t adopted a human rights-based approach during much of 2020?

Dr Donald MacAskill: That is my conviction.

Counsel Inquiry: What was, in the absence of a human rights-based approach, the main driver for the Scottish Government in respect of the policies and guidance around visiting restrictions?

Dr Donald MacAskill: Risk aversion, and an inappropriate balancing of what was acceptable.

Now, I know that in a shared environment, in a congregated living environment you have to balance the desires of one individual over and against another. Care homes are really good at doing that. They recognise that there is always a dynamic of give and take in any context. If there had been sufficient trust and regard to the professionalism of frontline care staff and clinical staff in the care sector, if that had been heard and listened to at all periods of the pandemic, then I’m quite convinced that we would have restrict – we would have withdrawn visiting restrictions much earlier. And I reached a point of personal despair, having drawn up guidance to enable the freeing up of visiting, that after drawing those up it took over six weeks before they began to even being to be considered. We took too long and as a result we limited the lives of people.

Counsel Inquiry: Was this guidance, draft guidance that you had prepared, to assist the Scottish Government and PHS around visiting restrictions?

Dr Donald MacAskill: The draft guidance was developed as part of the – a clinical and professional advisory group, and I’m – myself and three others contributed to the first stage of draft, but we all of us despaired about the length of time it took to turn that guidance into reality, as many in the care home sector and wider care felt that when the rest of society was opening up, care homes were still being closed down.

Counsel Inquiry: We know that visitor restrictions were eased in autumn 2020 but the guidance on outbreaks meant that many residents still faced severe restrictions for many weeks. Do you consider that the Scottish Government’s approach on this issue in late 2020, going into 2021 and 2022, did it move towards considering properly the human rights of the residents and their families?

Dr Donald MacAskill: No, it did not.

Counsel Inquiry: Why would you say that the Scottish Government didn’t move to a human rights-based approach later on in the pandemic?

Dr Donald MacAskill: I think the fear of repeating the trauma of the spring and of there being a resultant increase in death as a result of not tightly managing a care environment, was an overriding concern. And ultimately, as people kept saying to me, can we live our lives rather than exist in an imprisoned environment? Which was a sentiment expressed by staff as much as it was by family, residents and carers.

Counsel Inquiry: I now want to move to a separate topic, and something that you’ve touched upon several times already, and that’s around inspections, oversight and investigations.

On 21 April Ms Freeman – 21 April 2020 – announced that NHS directors of public health were required to taken enhanced leadership for care homes. Multidisciplinary care and professional oversight teams were convened, and Scottish Care says in its witness statement that in addition to inspections from the Care Inspectorate, care homes were being inspected and visited by oversight teams and by health improvement Scotland.

What was the impact on care homes of this increased regulatory oversight and inspection during the pandemic?

Dr Donald MacAskill: Profoundly negative, and we developed a report to indicate that. It is very rare in an emergency for significant change and improvement to occur when those carrying out those inspections and scrutiny are not respected, have no professional regard, and don’t understand the context in which they were inspecting. And that was the experience of having NHS practitioners assessing the validity or otherwise of IPC measures in a social care environment.

Counsel Inquiry: What impact did this increased regulatory requirements and inspections have on care home residents?

Dr Donald MacAskill: In a sense, it perpetuated and continued a practice of what I called the clinicalisation of care settings. Inevitably, in order to comply with a scrutiny approach which was much more clinical, much more medical in nature, care homes had to change their practice, otherwise they would lose their registration. And a number of us at the time spoke about the fact that new standards and frameworks were introduced virtually overnight with minimal consultation, absolutely no training, learning and development resource in – on the part of staff knowledge and awareness, and suddenly care homes were expected to be able to adhere to standards which (a) they disagreed with and still significantly today disagree with and (b) over which they had no control, and that resulted in a real sense of de-professionalising individuals working in care homes.

Counsel Inquiry: We also know that in May 2020 the Crown Office initiated a process of reporting an investigation of deaths that were occurring in care homes, and it is said within Scottish Care’s statement that this caused considerable trauma within the care home sector. What was the impact on – the Crown Office investigations on care homes, what was the impact on care homes and care home staff?

Dr Donald MacAskill: So the impact on care homes of an investigation that was solely directed at the care sector was increased risk aversion because of the fear of being prosecuted for criminal action if they were seen to be in breach of any of the regulations, whether it be on visiting, whether it be on IPC or on any other area. The impact on staff was profoundly damaging. And I would have to say, of the whole pandemic experience, this has been a lasting damage because it’s still ongoing. I know of a number, of hundreds of individuals who have communicated with me about the mental distress and upset that they have experienced. I know of dozens who have left the sector solely as a result of the investigations of the Crown Office, because a whole sector has been held up as being culpable for actions – only in Scotland, in no other administration that I am aware of national – in the UK or internationally.

Yes, it’s appropriate that the public are assured of best practice and that everything is done, but in order to achieve that, the holding up of every single worker in every single care home as potentially culpable has been emotionally and psychologically hugely damaging.

Mr Tariq: My Lady, that concludes my questions. There is a question on behalf of Scottish Covid Bereaved.

Lady Hallett: Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I am obliged, and indeed I am obliged to my learned friend Mr Tariq, who has posed many of the questions that the Scottish Covid Bereaved wished to be placed to this witness.

You have already touched upon one of the questions I really wanted to ask, so it’s really just to explore it with you a little bit further.

You have spoken about the imposition of visiting restrictions in care homes and it’s the experience of the Scottish Covid Bereaved that there was differences, broad differences in fact, in approaches taken by different care homes to the implementation of visiting restrictions.

Were you, first of all, aware of the fact that they weren’t being implemented uniformly?

Dr Donald MacAskill: Absolutely, yes. We are very aware that there were some of our members who simply refused to implement the restrictions full stop, because they didn’t feel them acceptable, and there were others who followed them to the letter because they were frightened to do otherwise.

Ms Mitchell KC: You have indicated quite clearly in the evidence to this Inquiry that in relation to Scottish Government and Public Health Scotland that their provision of guidance in relation to various matters wasn’t, as you put it, informed by the views of those with a proper understanding of the matter. Would it have been useful or helpful for your body to have provided any supervision or specific guidance during the pandemic to care home providers in relation to the implementation of visiting restrictions?

Dr Donald MacAskill: Apart from the reality that we didn’t have resource or capacity so to do, what we did do during the pandemic was, through surgeries and through webinars, to encourage or members to be as flexible as possible, recognising that there were issues to do with Operation Koper, which was a huge negative cloud over them, there were issues to do with insurance, which we’ve not talked about because of the withdrawal of multiple insurance coverage for care homes, which made many more risk averse of appearing to break guidance.

But we did everything we could, we worked in the early stages with groups like Care Home Relatives Scotland to try to increase the willingness of our members to open up when it was appropriate to do so. I’m sure we could have done more, but we were very clear that the best interests of individuals was that we opened care homes as quickly as possible, but it was extremely difficult to challenge particularly small providers.

And I think we forget the vast majority of provision of care homes in Scotland is by small, single operators or small, double, three operators. It’s very difficult in that environment to give them the assurance that by appearing to act against guidance, whose status was never confirmed, they weren’t at risk of deaths occurring and Operation Koper investigations resulting.

Ms Mitchell: I’m obliged for the detail given in your response.

My Lady, a new issue was touched upon, and that is one insurance. I am loathe to start and I don’t have authority to start on a new track, but if my Lady would think it would be of any assistance to the Inquiry to hear about that issue, I would be happy to ask a follow-up question in that regard.

Lady Hallett: My only concern is we have another witness that we’re trying to get in, so how long do you think it would take?

Ms Mitchell: Just to ask him to expand upon the issue of the removal of insurance and what effect that had.

Lady Hallett: If you can do it in summary, Dr Macaskill.

Ms Mitchell: I’m obliged.

Dr Donald MacAskill: Very quickly, at the start of the pandemic there were multiple providers for insurance for the care sector; within weeks that reduced to around about half a dozen. And at the same time there was an exorbitant increase in the cost of premiums, upwards of 200-300% increases. It was one of our major headaches. And one of the main reasons was that insurers would not cover Covid and insurers set additional conditions including the latest care inspection report on IPC, and one of the risks to that was increased visiting access. So we engaged with insurers both in Scotland and nationally and with the support of government, Scottish Government, to try to ease the system, but the lack of – or the issue around insurance definitely impacted on the willingness of care providers to open up to visiting.

Ms Mitchell: I’m obliged.

Lady Hallett: Thank you very much, Ms Mitchell.

Forgive the cough.

Thank you very much, Dr Macaskill, I’m very grateful to you, and having heard your advocacy I’m surprised that anyone didn’t pay immediate attention to you, so thank you very much indeed.

The Witness: Thank you, my Lady.

(The witness withdrew)

Lady Hallett: Mr Tariq.

Mr Tariq: My Lady, may I please call Ms Nicola Dickie.