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

Mr Dayle: My Lady, I act for the Federation of Ethnic Minority Healthcare Organisations, FEMHO, and I am part of a counsel team led by Mr Leslie Thomas KC and instructed by the firm Saunders Law.

As you already know, my Lady, FEMHO’s membership straddles the intersection of two disproportionately affected groups in your Inquiry, ethnic minorities and health and social care workers.

As minority ethnic health and social care workers, which FEMHO, is, FEMHO’s members were more likely to find themselves in hazardous work investigations without adequate PPE compared to their white colleagues. And to make matters worse, as we’ve been saying through other modules, they were the least empowered to speak up about it in a work situation.

FEMHO’s central contention in this module, therefore, is that structural inequalities impacted upon procurement decisions and the availability of healthcare-related equipment and supplies during the pandemic. This resulted in substantial problems concerning the availability of suitable PPE and equipment, including ventilators and oxygen.

FEMHO also contends that issues of structural inequalities shaped the availability of, and access to, lateral flow tests and PCR tests.

I note the encouraging words from Mr Wald KC this morning, which confirms that issues of structural inequalities in procurement will be given careful consideration as the Inquiry continues its investigation.

Needless to say, FEMHO welcomes these comments, but it bears restating how important it is that the Inquiry’s investigation considers how the processes, procedures and decision-making might have been inimical to the interests of health and social care workers and their communities. This, of course, includes the extent to which there may or may not have been reference to the Public Sector Equality Duty in the heady days of the pandemic, when usual business practices were suspended.

My Lady, you will note in our written submissions, FEMHO sought confirmation that the Inquiry’s investigation of procurement will not be limited to material assets such as PPE and healthcare equipment, but will extend to how contracts for communications and community engagement related to them were procured.

And I note comments made by Mr Wald KC earlier this morning that such procurement lies beyond the scope of Module 5.

Our observations at this time would be that communication and community engagement that is directly related to procurement of PPE and healthcare equipment should logically be considered within the scope of this module. If this is not to be the case, we would respectfully seek the Inquiry’s confirmation of when these matters will be looked into and when the wider issues of procurement of services contracts for communication and community engagement will be examined.

My Lady, the through line that runs through FEMHO’s approach in this module, and perhaps others, is that issues of equality in the context – in this instance, Module 5 – in the context of procurement, are cross-cutting, and may not be ghettoised into discrete segments. As such, FEMHO members want the Inquiry to consider the following overarching themes across the entire module: diversity and inclusion in decision-making, cultural competence in procurement decision-making processes, equitable distribution of resources, community engagement in procurement, language access and communication strategies, support for minority-owned businesses, regular diversity audits, transparency in decision-making, and collaboration for inclusive protocols.

Many of these themes will be borne out in discussions around fit testing and the provision of suitable and effective PPE for individual healthcare workers, for example, which is a matter of particular concern to FEMHO in this module.

The Inquiry will learn that much of the PPE procured in the UK was designed and manufactured based on the average facial measurements of a white male. There was thus a lack of adequate consideration for variation of facial features among different ethnicities. In addition, what was described as “standard” PPE was often incompatible with facial hair and religious and/or cultural dress such as hijabs or turbans. And alternatives, such as powered air-purifying respirators or PAPR, also referred to as hoods, were not always procured or made available.

FEMHO will be keen, my Lady, for you to examine whether healthcare equipment was fit for purpose and demonstrated cultural competency in procurement decisions. Concerns have been raised that a range of healthcare devices may be designed and are operating with a racial bias. This includes underlying predictive assessment protocols and algorithms, which have in recent years grown significantly in use when supporting clinical decision-making.

Nowhere were these issues more evident than in the now notorious issues related to the accuracy of the pulse oximeter, and the work of the NHS Race and Health Observatory unearthed the fact that readings from black and minority ethnic people could be seriously misleading and needed further assessment. Oximeters have been developed based on studies measuring oxygen levels in Caucasian and light-skinned individuals, and research has revealed inaccurate and ambiguous readings for those with darker pigmentation and skin tones.

My Lady, in matters of procedure, we wish to support the position of the UK Covid Bereaved Families for Justice regarding parallel criminal investigations and possible undertakings from the Attorney General, and this is set out in paragraphs 19-23 of the written submissions, and has been ably canvassed by Mr Nicholls on their behalf, with all its nuances, earlier this morning.

On the matter of experts, my Lady, FEMHO invites you to engage experts to consider how disengagement with the issue of race and inequality across the public sector, and lack of diversity and inclusion in senior leadership have negatively affected procurement decision-making. And in this connection, a follow-up report by the experts instructed for Module 2 on these issues, and I’m referring to Professors James Nazroo and Laia Bécares, is suggested.

FEMHO also commends the work conducted by the NHS Race and Health Observatory in the context of potential racial bias and cultural competency in healthcare equipment. The Inquiry is invited to draw on the expert studies and expertise that has been generated from this organisation.

It bears reiterating, my Lady, that on the issue of position statements, we say that it is an opportune time for your Inquiry to revisit whether state actor CPs should provide position statements to this Inquiry. You have kept this position under review since October 2022, and we say that given the disparate approaches to procurement across a range of state bodies, it would be helpful to your Inquiry for these bodies to set out their respective positions by way of position statements. And this would no doubt save time expended to research to ascertain this, and ensure more efficiency and focus on matters that are more central to the Inquiry’s investigations.

My Lady, we commend these matters to you for your careful consideration, and unless there are questions arising, my Lady, that will be all our submissions at this time.

Lady Hallett: Thank you very much for your help, Mr Dayle.

Mr Munro, I think you come last.