Transcript of Module 2B Public Hearing on 04 March 2024.

(10.00 am)

Mr Poole: If I can call Sir Frank Atherton, please.

1. Sir Frank Atherton

SIR FRANK ATHERTON (sworn).

Questions From Lead Counsel to the Inquiry for Module 2B

Lady Hallett: Thank you for coming back to help again,

Sir Frank.

The Witness: Pleasure.

Mr Poole: Could you please start by giving us your full name.

Sir Frank Atherton: Yeah, I’m Dr Frank Atherton, Sir Frank Atherton, the Chief Medical Officer for Wales.

Lead 2B: Sir Frank, thank you for attending today and assisting the Inquiry. If I could ask you whilst you’re giving your evidence to keep your voice up so we can hear you, but also so it can be recorded. Sir Frank, you have provided a witness statement for Module 1 of this Inquiry. You gave evidence also at Module 1 and you’ve provided a witness statement for this module, which is dated 18 December 2023, and we see it on screen under INQ000391115. We don’t need to go to it, but at page 70 of that witness statement you have signed it, and are the contents of that statement true to the best of your knowledge and belief?

Sir Frank Atherton: They are.

Lead 2B: Sir Frank, I’m going to be referring you to some documents during the course of your evidence. I will give the references so that they can be brought up on the screen, but I understand you’ve also got hard copies, so what I will try to do is provide you with references to your hard copy bundle as well. But if at any stage you don’t know which document I’m referring to, just tell me and we will sort it out.

Sir Frank Atherton: Thank you.

Lead 2B: Now, Sir Frank, as you said, you are currently the Chief Medical Officer for Wales and you have been in post since 2016; is that right?

Sir Frank Atherton: That’s right, yes.

Lead 2B: As regards your professional background, you studied medicine at Leeds University, followed which you worked in a broad range of medical areas, in particular paediatrics. You then completed your training in general practice. You worked as director of public health in Lancashire and Cumbria between 1 August 2002 and 1 May 2012. And you served as president of the Association of Directors of Public Health between 1 August 2008 and 1 May 2012. I understand you were also Deputy Chief Medical Officer for Health in Nova Scotia between 1 May 2012 to 1 August 2016, so

I think it’s right to say you have a long and distinguished career in the field of public health and medicine.

Sir Frank Atherton: Thank you.

Lead 2B: Just some questions, if I may, to start with the role of the Chief Medical Officer for Wales. I’m right, aren’t I, that although the CMO is a member of Welsh Government staff, and as such bound by the Civil Service Code, in practice you are afforded a high degree of independence when you come to advise the Welsh Government and a high degree of separation from their day-to-day concerns; is that right?

Sir Frank Atherton: That’s right, yeah. By custom and practice I do have a degree of independence which some other civil servants perhaps don’t enjoy.

Lead 2B: If we can, please, have on screen INQ000668086. Sir Frank I think this is page 72 in your bundle if you would rather hard copy. This is an organisational chart of the Welsh Government as at November 2019, so just going into the pandemic. We can see the four director generals, and underneath Andrew Goodall, who at the time was director general of Health and Social Services Group, we can see the CMO post there. At the start of the pandemic, you therefore reported to Dr Andrew Goodall as director general of the HSSG; is that right?

Sir Frank Atherton: That’s correct, yeah.

Lead 2B: And I think those reporting lines changed in November 2021 when Dr Goodall was appointed as permanent secretary and the director general post was filled by Judith Paget?

Sir Frank Atherton: Correct, yeah.

Lead 2B: Now, as regards your role during the pandemic, would it be right to say that your main function was to provide advice to Welsh ministers and Welsh Government policy officials about the public health implications of Covid-19 and the measures implemented to deal with it?

Sir Frank Atherton: Yeah, that would be a fair – fair comment, I think, yeah.

Lead 2B: And of course you had access to a range of advisory systems which we’ll come to look at in a moment, but would I be right in saying the ultimate responsibility for that provision of public health advice sat with you as CMO?

Sir Frank Atherton: Yes, I provided that alongside the chief science adviser for health and others, but – and of course ministers were taking advice from various sources but, from a public health point of view, I would be the principal adviser.

Lead 2B: The CMO is supported by a Deputy CMO, and since 2010 that post has been held by Dr Chris Jones; is that right?

Sir Frank Atherton: That’s correct, yeah.

Lead 2B: As you’ve just referred to as well, the Chief Scientific Adviser for Health, we’re going to hear evidence from him later, that’s Dr Robert Orford, and he held that post throughout the pandemic; correct?

Sir Frank Atherton: Yes.

Lead 2B: Prior to the pandemic, the CMO business unit, so your unit, consisted of, I understand, a senior executive officer and a higher executive officer, both providing you with administrative support; is that right?

Sir Frank Atherton: Mm-hm.

Lead 2B: You describe in your statement that the pandemic put, in your words, an unprecedented level of pressure on the CMO private office and the wider Health Protection Team, and such were the demands of you in February 2020 that you raised this with Dr Goodall; is that right?

Sir Frank Atherton: I did. Yes, I did raise that, yes.

Lead 2B: We understand that additional administrative support was not provided until May 2020, when you were provided with some temporary support; is that right?

Sir Frank Atherton: There was a gradual evolution of support during the pandemic. I did feel at the beginning of the pandemic, certainly in the earlier months, January, say, through March/April, there was a lack of support around me to be able to enable me to manage the amount of information that I was receiving that was coming in through various routes. To put it in context, I felt I kind of lost control of emails towards the end of January. So it was the administrative support that was lacking. Yeah.

Lady Hallett: Could you keep your voice up a little more, Sir Frank.

Sir Frank Atherton: I shall try, my Lady, thank you, yes.

Lady Hallett: You’re very softly spoken.

Sir Frank Atherton: I shall try.

Mr Poole: I think I’m right in saying that you continued to express some concerns about that lack of, as you say, administrative support, because in August you wrote a letter to Dr Goodall.

We can see that letter, it’s INQ000066192, and it’s the second paragraph of that letter.

You say:

“[I’m] … writing to flag significant concerns about our ability to manage the next phase of the pandemic in Wales.”

Now, I’m going to come back to other concerns you express in that letter a little while later in your evidence, but for present purposes, and focusing on the concerns about lack of support and resource in the CMO unit, we can look, please, at the penultimate paragraph on page 2 of this letter.

You say:

“You are aware that our public health team is heavily reliant on a small number of key … [Document read] … challenges we now face …”

You say in your statement, Sir Frank, that Dr Goodall agreed with the overall concerns raised in this letter and that Public Health Wales re-deployed some staff to support the response in the coming months.

As regards your own office, you say you had more support from May 2020 through to February 2022, but it would have been helpful to have that resource sooner in that initial period January to April 2020; is that right?

Sir Frank Atherton: That is correct, yeah.

Lead 2B: And in terms of the impact, I think, as you’ve just described, it was more administrative support, so would I be right in saying, as you’ve alluded to, dealing with the number of emails, if you went to a meeting having someone attend that meeting with you in order to take notes, that type of support that was lacking in that early period?

Sir Frank Atherton: It was. And the context to this is that, you know, early in the pandemic, when things were starting to emerge in about February, February or late January/early February, I presented to the Executive Committee of Welsh Government that there was an issue arising, and at that point I was hopeful that there might have been more support, administrative support, diverted from other parts of Welsh Government.

Now, to be fair, there were other issues around in Wales at the time. There was significant floodings. But at the time it was not seen as possible to kind of move resources into the health sector and specifically into my office to be able to support the administrative needs.

I think I do say in the statement as well that the – from a professional point of view, we were able to bring in other professional advisers, which was extremely helpful.

Lead 2B: On this issue of lack of administrative support, does this perhaps explain the lack, then, of formal minutes and notes of a number of meetings that you attended in this initial period? So, for example, we know you had regular meetings with other UK CMOs, including Professor Whitty, sometimes up to three times a week, but there are no minutes or notes of those meetings. Is that a result of this lack of administrative support in this period?

Sir Frank Atherton: It is, and I remember discussing this with other – my colleagues, the other CPOs, you know, who did have that kind of support alongside them, people to take minutes, to take records, to really help them manage the volume of traffic, and I did feel a bit of an outlier in terms of how I sat alongside my colleagues.

Lead 2B: Sir Frank, I want to ask you next some questions about sources of information upon which you drew during the pandemic and start if I may with UK-wide sources.

So, as I mentioned a moment ago, CMO discussions, it is right to say you had regular meetings with the other CMOs in the UK, and the Inquiry has heard evidence already about the structures that existed at UK Government level and the key individuals involved, not least your counterpart in England Professor Whitty.

Now, Professor Whitty’s background is in public health and infectious disease. You have already helpfully told us that you came from a general practice background before taking up various public health roles. You also make a point in your witness statement of saying that your background is not in virology or epidemiology. Would it be fair to say that, given the particular requirements and the difficulties faced in the pandemic, that your background and experience meant that you perhaps required, more than Professor Whitty, to translate the advice of others more expert in the matters at hand? Would that be fair?

Sir Frank Atherton: Well, I would certainly not have the level of understanding of infectious disease epidemiology that Professor Sir Chris Whitty would have, but I suppose I would argue that I was the only CMO who had formal public health training who had been involved, perhaps, in managing some of the previous incidents, epidemics, outbreaks, et cetera.

So I think when you look at the skills of chief medical officers, they can come from a range of backgrounds, of course. But what’s really important is that you know the limits of your knowledge and can draw on knowledge that you don’t personally have.

Lead 2B: The Inquiry heard evidence in Module 1 from Mr Gething that, as far as Wales was concerned, he said the relationship with the other CMOs was complicated by the fact that the CMO in England is not just a UK CMO but he or she advises the UK Government. So particularly in relation to areas that have UK-wide ramifications.

Did you encounter any problems in that regard, namely by the virtue that Professor Whitty was effectively wearing two hats, English CMO and UK Government adviser?

Sir Frank Atherton: It was never – it never came to me as a problem at all, it never – no, no.

Lead 2B: Now, prior to the pandemic, the UK CMOs tended to meet quarterly with the chairman of that meeting being rotated, and I understand during the pandemic those meetings became much more frequent and you describe in your statement that during the initial phase of the pandemic the UK CMOs would sometimes meet daily before you settled into a rhythm of weekly Friday morning meetings from around August 2020; is that right?

Sir Frank Atherton: That’s correct, yeah.

Lead 2B: Now, those meetings, as I understand it, would be chaired by Professor Whitty. His office would act in effect as secretariat. As I understand it, any minutes or notes taken were not shared with other CMOs, so we don’t have a joint agreed record of those meetings. Is that right?

Sir Frank Atherton: We do not.

Lead 2B: Assuming that you would have relayed those CMO discussions back to Welsh ministers and officials, didn’t the absence of an agreed record of those meetings make that more difficult?

Sir Frank Atherton: I don’t think it was a direct relay of the content of those discussions to ministers. What those meetings were about, they were fairly informal, and we were sharing information, it was about sharing intelligence information across the four nations. It wasn’t – if there were issues which arose which needed to be fed into ministers or into decision-making processes, then we would take those. But I would agree with your point that it would have been useful to have a record of them.

Lead 2B: So as a sort of lessons learned going forward, perhaps formal agreed minutes or records of those meetings would be useful?

Sir Frank Atherton: Some note would be useful.

Lead 2B: Now, we’ll look at specific meetings that you attended in due course but is it right that the first meeting of the UK CMOs in relation to Covid that took place on 24 January 2020?

Sir Frank Atherton: That’s my recollection.

Lead 2B: And having first heard about a novel coronavirus, I think in your statement you say, some time between Christmas and New Year 2019. Did you have any liaison with your CMO counterparts in the period between then and 24 January 2020?

Sir Frank Atherton: Well, really I can’t remember, but I feel we must have done. I do remember, you know, Professor Sir Jonathan Van-Tam was leading on health protection issues in Chris Whitty’s office, and I – looking back, I feel sure he would have spoken to us or somehow communicated with us about the issue in China. So I’m sure there was some soft sharing of information before that time, but the first formal meeting, as you say, seems to be towards the end of January.

Lead 2B: Now, SAGE is another important body about which much was heard in Module 2. We understand that SAGE was first convened on 22 January 2020. You were not invited to attend SAGE until 11 February 2020. Do you think that you should have been invited to attend SAGE earlier than 11 February?

Sir Frank Atherton: I think it would have been helpful for Welsh Government to be represented. Whether it was me personally or not is a separate matter, but I do think it would have been useful to have Welsh representation.

Lead 2B: Were requests made prior to 11 February for there to be a Welsh representative at a SAGE meeting, do you know?

Sir Frank Atherton: Do you mean requests from Wales to –

Lead 2B: Absolutely.

Sir Frank Atherton: – SAGE? I’m not aware of that, no.

Lead 2B: What steps did you take – prior to 11 February, recognising that it would have been helpful for there to have been a Welsh representative at these earlier SAGE meetings, what steps did you take to ensure that there was such a Welsh representative?

Sir Frank Atherton: Well, as soon as SAGE started to meet formally and we started to get invitations, we made sure that we were represented through Professor Orford, of course, yeah.

It may well be, and I think in Module 1 Professor Vallance gave evidence on this, it may well be that an invitation may have come through the chief science officer, Welsh Government office. I don’t know if that happened or not, but if it did, it didn’t reach me.

Lead 2B: Perhaps we can explore that with Dr Orford, who we will be hearing from next.

The Joint Biosecurity Centre was established by the UK Government in June 2020, as I understand it, to provide evidence-based analysis and advice to inform local government and national decision-making in response to Covid.

You were a member of the JBC technical advisory board; is that right?

Sir Frank Atherton: That’s correct, yes.

Lead 2B: Jo Trott, who’s head of Covid-19 project team in the Welsh Government, says in her evidence to the Inquiry that data and intelligence received through the JBC was England-centric. Is that something you’re able to comment on? Do you agree with those comments?

Sir Frank Atherton: I feel it may well have been in the early stages. JBC was set up as a completely new organisation, it built on some of the work that the former Public Health England had done, so, you know, initially I would agree with that. But I felt that as time went on during the pandemic the team, who I think were excellent, in JBC, technically excellent people, did go the distance to try to incorporate data from the other – the other nations. So I feel it may have been an initial issue which was certainly resolved towards the latter stages of the pandemic.

Lead 2B: Moving away now from UK-wide sources of information and consider Welsh-specific sources. Start with Public Health Wales. You say in your statement you had a series of ad hoc meetings with Public Health Wales colleagues in February 2020. I assume, therefore, you didn’t have any of those kind of meetings in January 2020; is that right?

Sir Frank Atherton: I really can’t remember.

Lead 2B: Was there any record kept of those ad hoc meetings that started in February 2020 and continued into March?

Sir Frank Atherton: No.

Lead 2B: Do you think a record should have been kept or would it have been useful to keep a record of those meetings?

Sir Frank Atherton: It was always my practice to meet fairly frequently with the senior – senior leaders in Public Health Wales. We’re a small nation, we have very – I would say very close working relationships, so I’m not sure that having a record of the informal catch-up information-sharing type meetings would be necessarily – no, I’m not sure that would – would be necessary. I think every time I meet Public Health Wales senior management, to have a record of that would be probably overly burdensome.

Lead 2B: Presumably these meetings in February and moving into March with Public Health Wales, they were discussing the evolving picture of the pandemic?

Sir Frank Atherton: Yes, it was really situational awareness, thinking about what was coming our way, thinking about how we might need to respond to it, yes.

Lead 2B: And, as you say, they were sort of information-sharing meetings. Would it not, in those circumstances, these fairly extraordinary circumstances, have been beneficial to have kept a record of those meetings?

Sir Frank Atherton: With the benefit of hindsight it may well have been useful.

Lead 2B: Did it become apparent when the pandemic struck that because the SAGE arrangement was a UK arrangement there was a need within the Welsh Government for a Welsh-specific scientific advice to be given to Welsh ministers?

Sir Frank Atherton: That was essentially the conclusion we reached and that was – led to the set-up of the Technical Advisory Cell and Technical Advisory Group that Professor Orford and –

Lead 2B: As I understand it, TAC was set up in late February and sort of TAG followed on soon thereafter.

I just want to take you to an annual report, it’s a 2018/2019 report entitled “Valuing our health”.

I’m grateful. We can see that it’s INQ000066189. And it’s page 3, please, in the penultimate paragraph of that page we can zoom in there.

You say, and it’s about five lines down on the right-hand side:

“We live in inter-connected world and recent events, such as the rise … [Document read] … need to strengthen this aspect of our public health system.”

Was consideration ever given to establishing a structure such as TAG or TAC prior to the pandemic?

Sir Frank Atherton: The TAG or TAC, no. The arrangements that we looked to strengthen included putting additional investment into Public Health Wales to boost their capacity. So that was the main outcome, I think, of this annual report, which looking back was quite prescient really.

As regards TAG and TAC, I’ve always seen those as more akin to part of the emergency response, a technical group which you step up when you’re managing an incident such as Covid.

Whether you need a standing arrangement for TAG or TAC I think is a different point.

Lead 2B: In your view would it be beneficial to have a standing basis for TAG and TAC?

Sir Frank Atherton: I think I’m fairly neutral on that point at the moment. I think having an arrangement which you can step up when it’s needed is probably a better use of resources.

Lead 2B: Now, the Inquiry understands that TAG and TAC provided advice to you as CMO and that you would then advise Welsh ministers. Just help us, then, was your advice independent of TAG and TAC or were you a conduit of TAG and TAC advice?

Sir Frank Atherton: I think it evolved over time. I think in the initial phases, when TAG and TAC were set up, it tended to route to me and I would tend to pass that through to ministers. Later in the pandemic, not much later, probably by August or September in the first year, 2020, it became much more the process that TAG and TAC advice would go directly to ministers and I would, of course taking account of that advice, provide my separate account. But my advice tended, certainly to the Cabinet in the formal meetings, to be much more concise than the detail which TAG and TAC was providing to ministers.

Lead 2B: Sir Frank, I want to ask you some questions next about your initial understanding in this early period January to March 2020.

Now, as we’ve already touched on, you say in your statement that you first heard about the novel coronavirus some time between Christmas and New Year 2019, you had some high level discussions with the UK CMOs about what was happening in China and I think at that stage, you say in your witness statement, you saw the virus as very much contained in China, at that period; is that right?

Sir Frank Atherton: Yes, early days, yeah.

Lead 2B: And early January you say that there were three potential outcomes, so: first, the virus could just fizzle out; second, it could lead to limited regional spread in other Asian countries; or, thirdly, it could become a more widespread global issue. And your view at that stage, and one you say was shared with the other CMOs, was, based on experience of SARS, the virus most likely would fizzle out or be limited to Asia; is that right?

Sir Frank Atherton: It is. One caveat would be that that construct was really developed by Professor Sir Chris Whitty and shared with us and we all agreed that.

Lead 2B: On 24 January Dr Orford sent you an email.

If we could, please, have it on screen. It’s INQ000252498. I’m grateful.

This email attached the minutes of the precautionary SAGE meeting that was held two days previously on 22 January.

Now, we know there were no Welsh representatives at that meeting but the minutes were then shared with Dr Orford two days later. We see from the bottom email – please, it’s the third paragraph:

“… it was decided that the [DAs] devolved administrations would go through their respective … CMOs …”

Prior to receiving that email from Dr Orford, were you aware of the decision that effectively intergovernmental liaison would be via the CMOs?

Sir Frank Atherton: I – I wasn’t really. I mean, I don’t recognise the statement, “devolved CMOs … will be liaising directly with the UK CMO”, going through … I don’t really recognise what that’s saying, as I look at it now. Yeah.

Sorry, can you repeat the question.

Lead 2B: So this is an email Dr Orford has passed on to you on 24 January, and this is the email reporting back from the precautionary SAGE on 22 January, and in that email it is saying:

“Today a COBR [has taken place] and it was decided that the devolved administrations would go through their respective devolved CMOs as they will be liaising directly with the UK CMO, Chris Whitty.”

My question was, simply, prior to being sent this email by Dr Orford, did you know that what was being envisaged was effectively liaison happening intergovernmentally via the CMOs of the four nations?

Sir Frank Atherton: My simple answer would be no.

Lead 2B: No.

If we can have a look, please, at those minutes from that precautionary SAGE meeting.

So it’s INQ000383581.

Sir Frank Atherton: Is there a –

Lead 2B: It’s tab 7, I hope, in that hard copy in front of you.

Sir Frank Atherton: Thank you. Yeah.

Lead 2B: I’m going to look at page 2 of those minutes, and it’s paragraph 23.

Sir Frank Atherton: Yeah.

Lead 2B: Under the heading “UK head readiness and planning”, the actions that were being taken at this time were testing, and the minutes read:

“The UK currently has … [Document read] … tract sampling.”

Then the next paragraph, paragraph 24:

“DHSC is developing advice for UK healthcare workers on testing potentially infected individuals.”

Then skip a paragraph, paragraph 26:

“DHSC and PHE [Public Health England] were also preparing plans for isolating potentially infected individuals and the follow up of contacts.”

Now, the actions referred there are all at UK level and also refer specifically to Public Health England.

What, if any, equivalent actions were being taken in Wales at this time? So this is 22 January 2020.

Sir Frank Atherton: So the initial – this is about the development of testing and testing capacity and testing capability, and initially that really was a UK-based process, as is recorded there, quite rightly. The colleagues in Public Health England at Porton Down were developing tests. So that was certainly the case in January.

Into February, and as testing started to come onstream, because it was, initially it’s true, available at UK-level only, in early – in February and into March, we in Wales did look to develop our own testing processes. I had some reservations about that, because I wanted assurance from Public Health Wales that the testing that we were developing in Wales was robust, that it was as robust as the testing that was currently being done at Colindale. Sorry, I said Porton Down, I meant Colindale, in England. So the action in Wales was to develop our own testing processes so that we were not reliant on the Colindale testing.

Lead 2B: The Inquiry heard evidence at the end of last week from Dr Chris Williams. He said, talking about this stage, so late January 2020, most of the big decisions were being led by Public Health England and that the overarching plan was a UK one. Do you agree with that?

Sir Frank Atherton: Do you mean the overarching plan for testing or for managing the coronavirus pandemic?

Lead 2B: Managing – so the bullet points from this, these SAGE minutes, it was, you’re right, testing, but also isolation, so general management in this early stage of the coronavirus was a UK plan, is what Dr Williams said, and I just want to know whether you would agree with that?

Sir Frank Atherton: Yeah, I would agree with that in broad terms, yes.

Lead 2B: The same day, so this is 24 January 2020, Chris Whitty convened a UK CMOs call and it was at that point, 24 January, you say in your statement that Covid-19 was discussed as a real potential threat to the UK.

Now, do you think at this stage, late January, that the potential threat posed by Covid-19 was recognised sufficiently quickly within Wales and the Welsh Government?

Sir Frank Atherton: I think by this stage it was increasingly apparent that that optimistic scenario of it fizzling out in China was not going to happen. So from a technical point of view it looked more likely that there was going to be spread beyond the boundaries of China and that was already starting to happen.

I think as I said earlier, my – I – my response to that was to discuss this with, obviously with my director general, Andrew Goodall, and he then suggested we take the issue to the Executive Committee of Welsh Government. So we did have a discussion with the Executive Committee of the Welsh Government about coronavirus. It was determined that it would be – as I recall at that meeting, it was determined that we would continue to manage this as a health issue and keep an eye on what was happening. Of course by that time there were no cases yet. Certainly in Wales. I don’t think there were any cases in the UK either.

Lead 2B: Now, the First Minister, Mr Drakeford, has said in his evidence to the Inquiry that on this day, so on 24 January, you advised him that there was a significant risk the virus would arrive in Wales. Do you recall giving that advice to the First Minister?

Sir Frank Atherton: I don’t recall it, but I’m sure that’s correct.

Lead 2B: Now, despite that advice about a significant risk of the virus arriving in Wales, Covid-19 is not discussed by the Welsh Cabinet until 25 February. Does that surprise you?

Sir Frank Atherton: I don’t set the agendas for the Cabinet. I think the – from what you’re saying it’s obviously the case that there were informal discussions between me – I was keeping Andrew Goodall involve – informed, the health minister informed and the First Minister informed informally. So it doesn’t particularly surprise me, given everything else that was happening in Wales, including the management of the flooding. But of course I wasn’t a member of Cabinet, I didn’t go to Cabinet.

Lead 2B: Given the significant risk, as you saw it and advised the First Minister about it, that the virus would arrive in Wales, what infection control measures were put in place at this stage, so we’re still end of January 2020 to minimise the public health risk in Wales?

Sir Frank Atherton: I can’t point to specific protections that were put in place, but really this was a time when, in Wales, and I’m sure in the other nations as well, we were starting to think about what the possible consequences might be. We were thinking about how we might manage individual outbreaks, how we might scale up any response that we needed to have. So it was at the start of that – we were at the start of that journey of thinking of how we actually scale up responses.

Of course saying that it’s going to arrive in Wales doesn’t mean that it’s going to be a pandemic. We didn’t know by that point that it was going to be a pandemic. We had to prepare for something. I think the language we often used at that time was we needed to hope for the best but prepare for the worst.

Lead 2B: Now, at this stage and wearing your lead director of HEPU, which the Inquiry heard quite a lot about in module 2, so that’s the HSSG Health Emergency Preparedness Unit, so wearing your HEPU hat, did you have any concerns regarding the capacity of the NHS to respond to a high-consequence infectious disease?

Sir Frank Atherton: I’m not lead of the Health Emergency Preparedness Unit. I think that’s – you’re referring to a colleague of mine that – this sits within the … the – I’m not the technical lead of the HEPU.

Lead 2B: So –

Sir Frank Atherton: Sorry, there is an officer within the Office of the Chief Medical Officer who does report to me on that.

Lead 2B: So in your position as CMO, did you have any concerns regarding the capacity of the NHS to respond to a high infectious disease at this stage, late January 2020?

Sir Frank Atherton: I suppose I had two – two concerns. I think late January was before we were seeing the issues arising in Italy, where – when Covid first broke out of China, of course, it appeared in Italy, and later in the pandemic, but it was into late February really, we were starting to see issues of capacity there, and at that point I think it’s fair to say we all got very worried about the NHS capacity. Yes.

Lead 2B: Dr Sandifer, who as you know between January and November 2020 he was the lead strategic director in Public Health Wales for Covid-19, he’s told the Inquiry that, with the exception of yourself, the CMO and your staff, he did not see the same awareness of and urgency about Covid across the rest of the Welsh Government, and he says what he thinks was missing in those first few weeks between 8 January and 20 February was, in his words, national strategic leadership and co-ordination from the Welsh Government, do you share those views?

Sir Frank Atherton: I think, looking back, I do share the view that the issue was managed too long as a health issue rather than as a cross-government issue, and that – that I think, looking back, was a mistake.

I think as I’ve already said, in fairness, there were other major issues going on in Wales. There were significant floodings, there was the consequences of Brexit, et cetera. So there were other issues, but it was, I believe, managed too long as a purely health issue.

Now, interestingly, I think that was the case also in other nations, I think that was probably the case at UK level as well to a degree.

Lead 2B: Now, I think the First Minister in his written evidence has – would tend to agree with what you’ve just said. He has rather candidly said in January to February 2020, Covid-19 was not a priority, and he talks about the flooding that you’ve also spoken about.

Going back to your comment that it was managed too long as a purely health issue, when do you think it should have been recognised that this was a cross-government issue that needed to be handled differently?

Sir Frank Atherton: I think once we started to see cases appearing – once we started to see pictures in Italy of hospitals really running into stress and – you know, so probably towards the middle, you know, middle of February probably, if you were to ask me to pin down a time.

Lead 2B: On 5 February you received an email from [redacted] that followed on from a UK CMO’s call.

If we can, please, have INQ000383585.

Sir Frank, if you want it in hard copy it’s tab 10 of your bundle.

Sir Frank Atherton: Thank you.

Lead 2B: This email provides a write-up of a call that Chris, presumably Chris Whitty, had with the directors of public health, and I’m just looking at the first bullet point, it says:

“CMO outlined current epidemiology of outbreak … [Document read] … reasonable worst case scenario planning.”

Do you think that the use of pandemic flu for reasonable worst-case scenario planning was reasonable at this stage, so again this is early February, 5 February 2020?

Sir Frank Atherton: Yes, I do.

Lead 2B: The email goes on to state that the CMO agrees that planning for mitigation now is wise. Am I right that mitigation in this context refers to a set of actions and measures aimed at reducing the spread of the virus and minimising its impact obviously on public health?

Sir Frank Atherton: Yes.

Lead 2B: Was mitigation planning being undertaken by the Welsh Government at this stage, early February 2020?

Sir Frank Atherton: So in the same way that Chris Whitty was having discussions with the directors of public health in England, we were alerting the system in Wales. I don’t have a record of them, but I used to meet with the – and I still do meet with the directors of public health on a regular basis. So we had been having discussions there.

There was a parallel strand, of course, around keeping chief executives of the health boards aware of the situation. That was led by Andrew Goodall and he would invite me to meet with the chief executives, often by telephone, as well. I’m sure there’s records of those discussions.

So mitigation planning for the – what might be coming would have been – was starting about the same time in Wales, yes.

Lead 2B: If I could ask you, please, to have a look at another email, it’s an email of 20 February 2020.

It’s INQ000383626.

It’s an email from Dr Orford providing you with an update on SAGE. It’s tab 109, I hope, in your hard copy bundle, but we can probably enlarge it on the screen for you.

It’s the sixth bullet point that I am interested in. So this is Dr Orford updating you from SAGE, he says:

“Likely that UK testing has missed 40% of positives, due to delay in testing versus detectability of virus.”

Then the next bullet point, please:

“75-80% likelihood that virus is already in circulation.”

Now, pausing there, this is 20 February, would you agree this meant containment had failed by 20 February?

Sir Frank Atherton: I’m not sure I would agree that containment had failed. The plan, of course, that was developed, you know, had containment as the initial step and then mitigation later, but, you know, we hadn’t had a lot of cases in the UK at this point, and early in a pandemic, early in any infection, when you have sporadic cases, you have an aspiration and a hope that you can contain them by contact tracing around the patients, and that was the initial approach we took in Wales. As you get more and more cases, then that becomes untenable and then you move to the delay phase and what became the coronavirus control plan.

Lead 2B: Just a couple of bullet points up, I think it’s the fifth bullet point, it says:

“From cruise ship – 30-50% asymptomatic mild.”

This is a reference to the Diamond Princess. Do you consider that there was sufficient evidence as of 20 February to consider asymptomatic transmission was at least likely?

Sir Frank Atherton: I think our understanding of asymptomatic transmission – are you talking about asymptomatic infection or asymptomatic transmission?

Lead 2B: Transmission.

Sir Frank Atherton: Our understanding grew gradually throughout the pandemic. At the early stages of the pandemic, initially we thought that asymptomatic infection was unlikely but that proved not to be the case, that people could be infected but not know it, not have symptoms. Asymptomatic transmission I think became apparent later on.

I think that this line actually says that 30 to 50% of the – I think this is about asymptomatic infection as opposed to transmission, but I could be wrong.

Lead 2B: The First Minister in his written evidence has said the Welsh Government considered asymptomatic transmission but concluded that there was insufficient evidence upon which to base operational decisions, but as the risk became more well understood operational decisions were adapted accordingly.

Would you agree that, on a precautionary basis, asymptomatic transmission should have been considered as a likelihood as early as 20 February and operational decisions adapted accordingly?

Sir Frank Atherton: I can only really repeat what I say, which is that our understanding grew gradually. I’m not quite sure I know what operational decisions might have been differently managed, when you talk about the precautionary principle.

Lead 2B: We could, please, look at the Welsh Cabinet meeting that I mentioned earlier. It’s 25 February.

The minutes of that are at INQ000129852.

Sir Frank, it’s hard copy bundle, if you want it, it’s tab 17.

Looks as though from these minutes there were five items on the agenda, and if we can please go to the penultimate page, page 6, under “Any other business”, there is here the first mention of Covid-19. It’s addressed as the last item on the agenda. Paragraph 5.1:

“The Minister for Health and Social Services provided … an update on the Coronavirus …”

Then paragraph 5.3, Mr Gething informed Cabinet that:

“The worldwide response was still in the containment stage and there had been no imported cases into the UK.”

Now, that’s not correct, is it? At the COBR meeting you attended with the First Minister on 18 February, that confirmed that there were nine positive cases in the UK.

Sir Frank Atherton: That may well be the case. I really don’t recall. I don’t think I was at this particular Cabinet meeting.

Lead 2B: No, Sir Frank, you weren’t at the Cabinet meeting, you were at a COBR meeting on 18 February where it was confirmed that there were nine positive cases in the UK, and I just wanted your views here, where it’s being said by Mr Gething that there were no imported cases into the UK; that’s just not right, is it?

Sir Frank Atherton: From what you say, it can’t be.

Lead 2B: So it looks as though the Welsh Government appear to be proceeding on the mistaken basis on this 25 February meeting, first Cabinet meeting to discuss Covid, that the virus had not yet hit these shores when it plainly had. Would you agree?

Sir Frank Atherton: From what you say, that seems to be the case.

Lead 2B: Looking at these minutes there’s no consideration by Cabinet of what steps should be taken to stop the virus from spreading, what infection control measures needed to be thought about and put in place. Does it surprise that those type of discussions are not minuted, being this, the first discussion about Covid by the Welsh Cabinet?

Sir Frank Atherton: No, as I say, I’m not a – at that stage I didn’t routinely attend Cabinet, I wasn’t at this particular Cabinet. My reading of Cabinet minutes is that they tend to be fairly anodyne notes, they don’t contain the depth of discussion, often, which – which goes into them, they tend to be rather terse summaries, which is what I would interpret this as being.

Lead 2B: You attended a COBR meeting on 2 March. That was the first COBR meeting that was chaired by Mr Johnson. We’ve got the minutes of this meeting.

It’s INQ000056217. I’m grateful.

Sir Frank, if you wanted a hard copy, it’s tab 22, but again I think we’ll try to zoom in.

It’s page 5, paragraph 2 I’d like to take you to, please. Paragraph 2 on that page, starting:

“The CHAIR invited the Government Chief Medical Officer … and the … GCSA to provide a situation … [Document read] … there was now sustained community transmission.”So this is now 2 March. It’s nearly a week since the first Covid was first discussed by the Welsh Cabinet, in the minutes we’ve just seen. It’s ten days after the lockdowns imposed in northern Italy that you’ve mentioned. There have been cases in the UK since late February, and in fact the first case in Wales on 28 February. And COBR is being told here that contact tracing for the source of infection for the last two cases had not been successful and there was sustained community infection both in France and Germany.

Did you understand, attending this meeting, that containment had been lost, the virus was now in the UK and was spreading?

Sir Frank Atherton: I don’t think it had been quite lost at this point, but we were certainly moving in that direction.

Lead 2B: On 3 March, so this is the day after these minutes and this meeting of COBR, saw the publication of the coronavirus action plan.

I’m grateful, INQ000066061.

If we could have a look at page 10, paragraph 3.9, please. The plan sets out the four nations approach with which we’re all very familiar: contain, delay, research, mitigate.

Did you consider the degree to which containment had already been lost and therefore a strategy in this document being published on 3 March referring to containment was a failed strategy?

Sir Frank Atherton: I don’t know that containment had been lost by that stage. I think there was still an ambition that we may be able to contain it by the normal methods of public health management, that that was still an aspiration.

The other point I would make is, of course, these documents – this was a UK-wide document, of course, which was developed at a UK level, and they sometimes take, you know, time to appear, time to go from the thinking to the actual publication. And of course at this time, as you doubtless know, things are moving at a very fast pace.

Lead 2B: I want to – still trying to move through this period chronologically, but just take us – a step to the side to deal with mass gatherings if I may.

On 11 March, the Inquiry has seen evidence that Gareth Davies, the then chairman of the Welsh Rugby Union contacted the First Minister’s office to express his concerns about the Six Nations rugby match between Wales and Scotland that was scheduled for that Saturday 14 March here in Cardiff at the Principality Stadium. He was concerned about that match going ahead. I understand that you were invited to speak to the Welsh Rugby Union. And before we sort of look at the advice that you gave them if we can just put this in context.

On 12 March you had dialled into a COBR meeting at which this issue of mass gatherings was discussed. If we can please have those minutes, it’s a hard copy tab 30, Sir Frank.

But it’s INQ000056221, and particularly I’d like page 5, paragraph 5 and the third bullet point towards the bottom of the page pulled up, please, thank you very much.

Now, this notes that:

“The hardest intervention to call was whether to cancel mass gatherings as the evidence was not there, especially for outdoor events.”

Then if we can go over the page, page 6, and I think it’s the ninth bullet point, it starts:

“… Scottish [Gov] … minded to advise … [Document read] … more than 500 people.”

Yes, I’m grateful.

“… minded to advise against gatherings of more than 500 people.”

So as to ensure frontline emergency workers were able to prioritise the response to the pandemic.

Then if we can go to page 8 of these minutes, please, at paragraph 15.

The UK Government took the decision not to prohibit mass gatherings but it is noted here, it’s about four lines in, that the Prime Minister “respected the Scottish Government’s decision to cancel mass gathering[s] to manage pressure on emergency responders”.

Now, my question is simply this: would you agree that banning mass gatherings so that public emergency services are not displaced would seem to be a pragmatic approach?

Sir Frank Atherton: I think with the benefit of hindsight I would agree with that, and I would also think that there may well have been an advantage in terms of public communication, because it would have given a signal to the public.

But the context of this, of course, was twofold. First of all, in the pandemic flu planning, which we were to some degree still following, the issue of cancelling mass gatherings had been considered, but in – the flu plan, that was discounted as not likely to be affected.

And I believe that SAGE had also looked at mass gatherings and the – both the benefits of cancelling them and the potential downsides, the potential risks of cancelling them, and that people might gather in small numbers in pubs, restaurants, clubs, on trains, whatever.

So I think, you know, that’s a long way of saying yes. I do think that there may – preserving the pressures on the emergency services should have been a factor, it should have been a consideration. Communications with the public should have been a consideration, but we were following the SAGE advice.

Lead 2B: What about the impact on public behaviour? If you allow a mass gathering to go ahead, doesn’t it rather send a message to the public that everything’s fine?

Sir Frank Atherton: That’s the point I was making.

Lead 2B: I mean, you’re right, the advice from SAGE, and it’s recognised in these minutes, that the science – science wasn’t there. But even if the events themselves were not major vectors for transmission, isn’t the foreseeable issue people attending pubs and bars, which might not have occurred had the events been cancelled? So you wouldn’t get, for example, the 20,000 Scottish rugby fans that arrived in Cardiff ahead of the match that was scheduled for that Saturday. So do you agree it would have been prudent to have advised against ass gatherings going ahead?

Sir Frank Atherton: With the benefit of hindsight I think that would have been a useful thing to do, I think that’s a lesson that we should learn into future pandemics, yeah.

Lead 2B: Now, the decision to lock down, as we all know, was made on 23 March, it was announced that evening by Mr Johnson and then the First Minister of Wales. You say in your witness statement:

“I was not consulted on the UK national lockdown … I do not recall a CMO discussion or formal change in our advice which led to this decision.”

And you say:

“This was a decision by ministers at COBR – led, I understand, – by the UK Government. The reality was that people were dying, we were looking at what was happening in Europe and in particularly in Italy at that time and had no choice but to act on the modelling that was being presented.”

Do you think you should have been consulted about the decision to lock down?

Sir Frank Atherton: I do think Welsh Government should have been consulted. This was a time when things were moving exceptionally fast and up till quite a late point in the run-up to 23 March the assumption that we were all working to was that we needed to reduce the amount of infection but not to reduce it to a level where there would be a bounce-back. There was a kind of famous graphic that was used I think by Professor Sir Chris Whitty and Sir Patrick Vallance, which showed that – the possible negative effects of flattening the curve too much and suppressing viral transmission too much, and there was a visceral fear that if we did that the virus would bounce back and bounce back in the winter months, when we were even less able to deal with it.

So that was the thinking, up till quite a late period leading up to 23 March. It was really in those few days, probably between 16 and 23 March, I think, that the pictures from Italy, the – looking at what was happening in Italy, looking at the rate of trans – of increase of infection in the UK led to the realisation at a UK level that that way of managing the pandemic was untenable, and so it felt like an emergency handbrake being pulled. But it was pulled by the Welsh – by the UK Government and we were – we certainly felt that it was appropriate to do that by that stage, so we would agree – we agreed with the advice, ministers agreed with the decision, but … yeah, that’s how it played out, I believe.

Lead 2B: Had different actions been taken in the months leading up to 23 March could a national lockdown have been avoided in your view?

Sir Frank Atherton: I don’t believe so, no.

Lead 2B: Sir Frank, I want to just change topic slightly and ask you some short questions just about the 21-day review process, because, as we know, once the Health Protection (Coronavirus Restrictions) (Wales) Regulations were made, they were required to be reviewed every 21 days, and you describe in your witness statement you contributed to that 21-day review process by providing advice to the Welsh Government based on an assessment of how any amendments to the restrictions would impact on the four harms that had been identified by Professor Whitty, those four harms being: first, direct harm to individuals; second, indirect harm; third, harms from non-Covid illness; and fourth, socioeconomic and other societal harms.

Now, it’s right, isn’t it, that in Wales a fifth harm was added to that last, namely the way Covid has exacerbated existing or introduced new inequalities into Welsh society, that’s right –

Sir Frank Atherton: That’s right, yes.

Lead 2B: Now, that fifth harm, as I understand it, was added in July 2021 on the advice of TAC, is that right?

Sir Frank Atherton: Correct.

Lead 2B: Now, the Inquiry heard evidence last week about concerns being raised in early April 2020 about the disproportionate impact that the pandemic was having on vulnerable and at-risk groups and those with protected characteristics. Why did it take until July 2021 to add that fifth harm which dealt with those concerns about disproportionate impact?

Sir Frank Atherton: I think it was probably because TAC was extremely busy on a range of fronts, and it was something which itself – was June really that late? It doesn’t seem to me that late, given the – given the pressures that were on TAC and TAG to do other work, particularly around the modelling and the thinking of where the pandemic was going. I think it was to Wales’ credit that we did add that fifth element, and it speaks to the fact that we take inequality very seriously in Wales, but I don’t think that that was an undue delay.

Lady Hallett: Was the fifth harm added in July ‘21?

Mr Poole: 2021, my Lady.

Sir Frank Atherton: Oh, I’m sorry, I thought it was 2020.

Lady Hallett: I didn’t think –

Sir Frank Atherton: It was later than that, sorry, I beg your pardon.

Lady Hallett: – Sir Frank had understood.

Sir Frank Atherton: I missed that. Thank you.

Mr Poole: No, Sir Frank, my understanding is it was July 2021.

Sir Frank Atherton: Yeah.

Lead 2B: In light of now realising it was now 2021, would you want to change your answer?

Sir Frank Atherton: So it would have been, it would have been better to recognise that formally earlier, but we – it’s not that we didn’t recognise it or we weren’t working on those fronts, there was a lot of activity going on, of course, around specific aspects of inequality, not least around trying to make sure that we protected the interests of people from black, Asian and minority ethnic groups but also other socio and economically deprived groups. So there was a lot of work going on, but I agree with you it would have been better to recognise it formally at an earlier stage.

Lead 2B: Now, Sir Frank, before we take a break in 15 minutes’ time I just want to deal with, if I can, a topic, face coverings, which is an area where there was a difference of opinion between the four nations on this issue and just want to explore that with you.

On 11 May, the UK Government advised the public to consider wearing face coverings in enclosed public spaces such as shops, trains, buses, to obviously help reduce the spread of coronavirus.

Now, you issued a statement the following day in which you confirmed that you did not recommend the compulsory wearing of face coverings by everyone when they leave home and indicated that that should be a matter of personal choice. In your witness statement to the Inquiry you give three reasons for that. You say, first, you were concerned about the stock of PPE, and the priority was to ensure that there was sufficient face masks for hospital and care staff. Second, you say that you thought the use of face coverings would promote risky behaviours. And third, you say you were concerned that the face coverings being used in the UK did not generally meet WHO standards.

Now, as to your first point about a concern about a stock of PPE, had there been sufficient PPE would your advice have been different, Sir Frank?

Sir Frank Atherton: There were a number of issues around face coverings. The risk around PPE was not so much about face coverings, it was about face masks. I was very concerned – and it was actually earlier than 20 – than July, I think you mentioned. But my concern is early in the pandemic, when we were at risk of running out of PPE – and I stress at risk, we never actually ran out of PPE in hospitals in Wales, but my concern was that there could be a leaching of a scarce resource towards face coverings in the community, use in the community which would have been inappropriate because it wouldn’t have provided very much protection and could potentially denude the health and social care system from the vital resources that they needed.

Lead 2B: Had there not been a shortage, though, of PPE, would you have been advising that it was advisable to wear a face mask?

Sir Frank Atherton: No, they’re two completely different things. The PPE that was being used in hospitals is medical grade face masks. The cloth coverings that we used in the community settings were a completely different thing. What I’m saying is that I was worried that insisting on face coverings in the community could in the early stage of the pandemic, when we were potentially short – might face running out of PPE in hospitals, could have led to face masks being diverted into face coverings.

Lead 2B: As to your second point, namely the promotion of risky behaviours, what was the basis of that assumption? Did you seek advice from any behavioural scientists about concluding that mask wearing could promote such risky behaviours?

Sir Frank Atherton: It’s an issue I believe that the TAC did look at as part of their assessment. What we did with face coverings was we repeatedly asked TAC, and scanned the international literature of course, for the evidence about the effectiveness of face coverings, and the answer continually came back that there was weak evidence of a small benefit.

So our approach in Wales, my approach in Wales was much more focused on working to maximise the benefit of the things which we absolutely knew would break viral transmission. So, yeah.

Lead 2B: In June 2020 the Minister for Health and Social Services and the First Minister requested specific advice on face coverings. That advice was sought in light of requirements being introduced in England mandating the use of face coverings in hospital settings and public transport.

Can I just look, please, at an entry from your notebooks, it appears to be dated 7 June.

It’s INQ000327541. Yes, I’m grateful. It’s page 61 of the notebook, and it’s – excellent.

There we can see it in front of you, it looks like it’s dated – top right – “7/6/20”, so June 2020. It appears to query whether there was sufficient evidence to suggest mandatory use. Is that what you’re referring to in this entry?

Sir Frank Atherton: It probably is. I’m asking myself is there enough evidence to support mandatory use, yes.

Lead 2B: Sir Frank, as this is the first time that we’ve looked at a passage from your notebooks perhaps you can just help the Inquiry in this regard. Were these contemporaneous notes that you took personally? So, for example, would this have been something that you had written on 7 June 2020?

Sir Frank Atherton: It would have been something that I wrote then, but it’s important to recognise these are not – it wasn’t a diary, it wasn’t a – it was really, I keep notebooks, if I’m going to meet with the First Minister or the health minister, just to kind of shape my thoughts and to create my thoughts as to what I need to brief them on, what I need to say to them, so it’s very informal notes, yeah.

Lead 2B: If we could just have a look whilst we’re here at the next page, page 62, at the top of the page, please.

There’s a reference to I think it reads “political chazi” and “alignment”. Can you help us, what are you referring to there? Were you concerned about Wales adopting a different approach to face coverings than the other nations?

Sir Frank Atherton: It’s “political choice”.

Lead 2B: “Choice”, I’m sorry.

Sir Frank Atherton: It’s really pointing out that, although I had reservations – the political choice issue is about me saying – I think, this is thinking back four years you understand – that although I couldn’t see a good argument for mandating public health – mandating on a public health basis the use of face coverings, mandating as opposed to recommending – I couldn’t see it but I was recognising, and I was very clear with ministers, that there was a political choice to be made. And it was extremely difficult. I felt I was putting ministers in actually quite a difficult position because I was taking perhaps a slightly different position to my other CMO colleagues on this one. And the alignment issue is exactly that, the fact that it became confusing for the public that we were not aligned and that we were doing something slightly different on face coverings. So it was me, really, trying to make sure that ministers understood that this was their decision but my advice was that the evidence was not robust.

Lead 2B: Do you think that taking this stance, as you rightly observe different stance to your CMO colleagues in the other three nations, weakened public messaging?

Sir Frank Atherton: I think it probably did. And when I look back at all the time and energy that was spent in Wales thinking about face coverings, I do wonder whether it would have been a better decision just to simply align.

I did have one personal issue, which is around the use of the 1984 Public Health Act, because I believe, having used the 1984 Act in my career, that you need very good evidence in order to place restrictions under that Act. But I’m not a lawyer, something for which I occasionally give thanks.

Lead 2B: Now, Wales was obviously later than the other three nations when it came to advising or mandating face coverings, in large part, as I think you would acknowledge, based on your advice being given to Welsh ministers and the First Minister.

Just some dates: 28 April 2020, Nicola Sturgeon advised the use of cloth face masks in enclosed spaces on public transport; 7 May, Northern Ireland Executive recommended face coverings in enclosed spaces where social distancing not possible; similar advice in England on 11 May; and yet it was not until 9 June 2020 that the Welsh Government recommended face coverings.

Now, a number of your colleagues took a different view to you on face coverings. I mean, the Inquiry heard last week from Dr Chris Williams. He said he verbally argued in TAG in favour of mandatory face coverings and the First Minister has also said in his written evidence that he thought that they were useful in reinforcing the continued seriousness of the Covid-19 position. And we’ve heard in written evidence from Rebecca Evans, a Welsh minister at the time, taking a similar position.

Now, in a WhatsApp of 15 July 2020 – we don’t need it on screen, I’ll just read it to you – she said:

“One benefit of masks is that they are … [Document read] … can’t see it.”

I mean, to what extent did you consider and test those arguments and perhaps test them with the CMOs of the other three nations, or indeed the RCBI behavioural scientists that we heard about, for example Professor Ann John that we heard evidence from last week?

Sir Frank Atherton: Extensively, I would say. You know, I joined – I didn’t normally join TAC, but I did join for the discussion on face coverings about that time, and it was quite clear, and I think it’s clear in the TAC advice, that opinion within TAC was divided, there were various opinions, so there was no very clear recommendation coming out of TAC?

As regards the WhatsApp from Rebecca Evans, I wasn’t a party to any of that. But I would agree, and I think I’ve already made the point, that from a communications point of view it became very problematic and it became difficult I think for ministers to hold the line – and eventually we moved along that axis from advisory to mandatory.

Lead 2B: Did you hear the phrase “mask militancy” being used at any stage?

Sir Frank Atherton: I don’t recall it, no.

Lead 2B: Can we, please, have INQ000222863 on screen, which is a note.

It’s hard copy tab 96, Sir Frank.

But this is a note from Jane Runeckles, Jane Runeckles being the First Minister’s senior special adviser. It’s dated 10 August 2020. Now, the second bullet point is recording a briefing given by yourself and Dr Orford to the First Minister on face coverings. As we see there:

“Face coverings – … [Document read] … really is your choice FM.”

First Minister.

So this was obviously recognising that Wales is out of step with the rest of the UK but, as you say there, this was – although you were providing the advice, as far as you’re concerned this was a political choice for the First Minister and the Welsh Cabinet to make; is that right?

Sir Frank Atherton: That’s correct, yeah.

Lead 2B: The fifth bullet point, please, on this note, the First Minister remarks that the public were “completely mystified” that face masks were not mandated in supermarkets. I mean, was that taken into account in the advice that you were giving the First Minister on this issue?

Sir Frank Atherton: I think that’s the point I was making about I recognise that the position that we were taking in Wales was confusing to the public, and … yes.

Lead 2B: If you had your time again, Sir Frank, would you have effectively mandated the wearing of face masks at the same time as, for example, the UK Government did in England?

Sir Frank Atherton: I think I probably would, with the caveat that I suspect it would have been subject to legal challenge because there wasn’t very good evidence to support it. But yes, I think from all the time and energy that was spent on face coverings, it would have been better to align.

Lead 2B: On 11 September 2020 the First Minister issued a statement which confirmed that from the following Monday, 14 September, all residents in Wales over the age of 11 would be required to wear face coverings in public spaces such as shops.

Now, the Inquiry understands you did not provide advice on that decision, that was advice from the Deputy CMO, Chris Jones, Dr Jones. In summary, Dr Jones advised that as incidence has increased it was appropriate to move away from an advisory to a mandatory requirement to wear face coverings in indoor environments where social distancing is not possible or difficult to observe. At that stage, this is 11 September 2020, did you agree with Dr Jones’ advice?

Sir Frank Atherton: I don’t think I was around at the time. I think my personal view hadn’t changed but I felt that Dr Jones was giving the ministers a way of resolving the problem that you just described about public communications, yeah.

Mr Poole: My Lady, if that’s an appropriate point.

Lady Hallett: Yes, certainly. I shall return at 11.30.

(11.13 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Poole.

Mr Poole: Sir Frank, on 3 June 2020 Kirsty Williams announced that schools would re-open in Wales on 29 June. The day after that announcement you gave a press conference in which you stated that your preferred option would have been to re-open schools in August to allow more time but that the unions did not agree to this, and so you said the second best option for re-opening schools in June was the one that was being adopted.

Why did you consider it necessary to make a public statement to the effect that the second best option of opening schools was re-opening on 29 June?

Sir Frank Atherton: I think I was asked to do that by our communications team. I can’t remember the exact circumstances. The detailed discussions with politicians on this, and with the unions indeed, was held by my deputy, Chris Jones, but I was asked to front the media, the media aspect of that, yeah.

Lead 2B: Changing topic again, just briefly on the circuit-breaker, now, we know a circuit-breaker was first recommended by SAGE on 21 September 2020. That advice was reiterated by TAC in later September and then early October.

Given the advice that had been received as early as mid-September that a circuit-breaker was needed and would be most effective if implemented early and deeply, do you think that the Welsh Government should have implemented a firebreak lockdown sooner than they did?

Sir Frank Atherton: I think at that time it was obvious that infection rates were rising and rising fairly rapidly, so the advice from Public Health Wales and from TAC was quite clear that we needed to make an intervention. With all the interventions we made when the virus was on the rise, the approach that I was recommending was “go early and go hard”. We learnt that really through the first wave and into the second wave.

So the simple answer is that the sooner it was implemented the better, and the length of it was quite important, because I think Public Health Wales at that time was advising that three weeks would have been preferable, but two weeks was the absolute minimum, and that’s the advice I passed on to ministers. It certainly did have an impact in terms of reducing transmission, but the impact was relatively short lived.

Lead 2B: Sir Frank, moving forward quite considerably in the chronology to 27 November 2021, which is when Omicron was identified as a variant of concern.

If I could, please, ask you to look at, again, your notebook, there was an entry from 10 December 2021 that appears to relate to measures in response to Omicron. Now, your notebook entry, it’s INQ000327548, please, in hard copy it’s 77. On page 79, it’s about nine lines down. The note reads:

“Likely move to [level] 4 prior to Christmas.”

We see that, it’s about four lines up from the bottom of the page, so it’s been highlighted very helpfully for us, thank you.

Do you think that you had an unduly pessimistic view of the likely severity of the Omicron outbreak and the restrictions that were required?

Sir Frank Atherton: No, I don’t. I think at that point we were looking at Omicron, we didn’t know an awful lot about the Omicron, we understood it to have a high transmissibility advantage over previous strains of the virus, so we could see it starting to spread very rapidly. What we didn’t know, what we couldn’t know at that point was how path – you know, the severity of the illness that it would cause. So I think that at that point I was – obviously this note seems to suggest to me that I was thinking that we would have to go in towards a – more of a lockdown sort of situation. As it transpired – to your point about, you know, whether I was unduly pessimistic – I was pessimistic but my pessimism was unjustified, and so we were lucky. But sometimes it’s better to be wise than lucky.

Lead 2B: If we can, sticking with your notebook, have a look at page 101, please.

At the very bottom of the page there is an entry from 21 December 2021, it’s the word, in capitals, “PROBLEM”.

Sir Frank Atherton: Yeah.

Lead 2B: “I have given clear [advice] that L4 [so level 4] restrictions are needed. Ministers stuck on financial implications – can afford L2 but not L4.”

First of all, have I read that correctly?

Sir Frank Atherton: You have read it correctly, if I can read it correctly, but yes, that’s what it says.

Lead 2B: Can you just explain to us that entry, was your view in effect that level 4 restrictions were needed but –

Sir Frank Atherton: Yeah.

Lead 2B: – because of the economic or financial implications, the political decision was that they couldn’t afford, effectively, to move to level 4?

Sir Frank Atherton: I have to confess I don’t remember it well but that’s what it reads like to me.

Lead 2B: Sir Frank, I would like to ask you next some questions now about shielding.

Now, on 16 March 2020, the Welsh Government, in conjunction with the UK Government, announced a package of measures advising those who were at increased risk of severely illness from Covid to be particularly stringent in following social distancing measures, and that group was then not contacted but were advised to take steps to reduce social interactions.

Do you think that group, that vulnerable group, should have been contacted at that stage, in – so this is mid-March 2020?

Sir Frank Atherton: Sorry, I missed your question, they should have been – you said they were contacted or –

Lead 2B: No, they were advised to take steps but they weren’t at that point in time contacted, mid-March.

Sir Frank Atherton: Well, the shielding process was managed in the early phase certainly as a four nations construct, really, so we were all trying to stay aligned on shielding, but I think you’re right, it moved from advisory to – it was never instruction, it was never a directorate, but the writing out process. Is that what you’re asking about, about the formal writing out?

Lead 2B: So on the – perhaps if I can help you. So I was asking you about 16 March, and then on 24 March that is when you wrote to almost 100,000 people who had been identified as most vulnerable, and advised them to stay at home for 12 weeks. How were those people identified, those 100,000?

Sir Frank Atherton: Yeah, it was quite a difficult, quite a complex process. The people in that group were identified initially at a UK level – in England actually, an England level, through their information – their informatics systems. Our informatics systems were slightly different, and not aligned, and so it was actually quite a mammoth task for our IT folks and to clinicians to work – to develop a similar list in Wales. So we identified them in that way, that’s how we created our shielded group.

Lead 2B: I think I’m right in saying you also asked GPs to make clinical judgements in relation to their patients in order to identify the most vulnerable patients. Can I ask you this: do you think that ran a risk of inconsistent practices being adopted in relation to identifying who were the most vulnerable in society?

Sir Frank Atherton: Yes, but we were keen that, given the risk of missing people off the list, and given the fact that GPs know their patients far better than a computer system run at national level does, that GPs had the power to add people to the list if they – in their judgement, that person was at significant risk.

Lead 2B: Now, just by way of chronology, there were changes to the shielding policy introduced on 4 June 2020. On 22 June England announced that those shielding could meet in groups of six outdoors and could form a bubble with an extended household from 6 July. And then on 29 June it was announced that those shielding in Wales would be able to form part of an extended household from 6 July. Shielding was then paused in England on 1 August. I think in Wales shielding continued until at least 16 August. Can I just ask you to, please, look at a notebook entry.

It’s INQ000327541.

It’s page 56, and we see in the middle of that page – it’s a sort of spike diagram, you see the words “Shielded group” in the centre, and one of the options or one of the references is to continue until 16 August.

What is being considered here? Is this whether shielding should continue in Wales beyond that in England?

Sir Frank Atherton: Again, it’s difficult to recall from that note, but my recall of the issue was that we tried, as a four nations, to make common decisions on this, on when to pause shielding, and so, as you rightly say, England went on 1 August. I think ministers had had some discussion with patient interest groups – it was either that or it was with the social forum, and had made a commitment to continue to the 16th. So I think that was the – I think, if I recall correctly, that was the reason why we went – we paused it a little bit later in Wales than in England.

Lead 2B: If we can just finally turn over the page, I think it’s page 57 – I’m grateful – we see there there’s another spider diagram, and in the middle the word “Omnishambles”?

Sir Frank Atherton: Yes.

Lead 2B: What’s that referring to?

Sir Frank Atherton: Well, reading at the side, the pieces off to the side, I mean, this represents a degree of frustration I think I had, which is that sometimes information came from UK level into Wales very late and left us on the back foot on some issues. So if I read down that list – I mean, it seemed odd to me that at some point we were – you know, the virus was relatively contained at this point, but – we were lifting restrictions but other restrictions were being put in place, including face coverings, for example. Why were we doing that? Why was Scotland moving more on face coverings than – at a time when we were relaxing other things? So it was a sense of frustration, I think, that were there things happening, that information was not being properly shared between policy leads in the different countries.

Mr Poole: Sir Frank, I’m grateful, they’re all the questions I’ve got for you but there are some questions from the core participants.

Lady Hallett: Ms Heaven.

Questions From Ms Heaven

Ms Heaven: My Lady, let me just pull this forward.

Good morning, Sir Frank, I represent the Covid-19 Bereaved Families for Justice Cymru. Just a few short topics, please.

Can we start with the topic of face coverings, which CTI asked you about a moment ago, and I want to go back again to that press release of May 2020 that CTI just asked you about.

So just to be clear, this was at a time when Wales was the only nation in the United Kingdom not to recommend the use of face coverings and, as we’ve just heard, on 11 May Chris Whitty and the UK Government advised the public not to wear face coverings – sorry, to wear face coverings in enclosed public spaces, and Sir Chris publicly stated that his advice was on the advice of SAGE.

Now, I’m just going to quote from your press statement from the Welsh Government website in part. What you state is this:

“I am not recommending the compulsory wearing of face coverings by everyone wherever they leave home – this should be a matter of personal choice.”

Then you said a second time:

“… I support the public’s right to choose whether to wear them.”

You also talk about your concerns around discrimination against those people who might not be able to wear a mask.

Now, you did obviously say a lot of other things in that press statement, but will you take it from me that you made those comments in that press statement?

Sir Frank Atherton: Yes.

Ms Heaven: Thank you.

Now, we know that the science that you were looking at at this time was no different from the science being looked at by all the other CMOs, and nevertheless you advised the Welsh Government to diverge.

You have just accepted to CTI that your stance weakened public messaging in Wales and was probably confusing, and of course you made that note in your diary on 7 June regarding political choice and aligned, and CTI took you to the Jane Runeckles note from 10 August which referenced the Welsh Government being an outlier and the public being completely mystified that you won’t mandate face coverings in supermarkets.

So, Sir Frank, you made reference a number of times in your evidence to CTI to hindsight, but, reflecting on the evidence that I’ve just put to you, will you not accept to me that it was clearly obvious to you, as CMO at the time, that your divergent approach to face coverings was in fact confusing and indeed mystifying the Welsh public, and that this must have undermined the four nations response to this rapidly evolving threat? So will you accept that from me?

Sir Frank Atherton: No, I won’t. I come back to the point that the evidence was very weak, the evidence for face coverings was very weak, and that was the evidence that we were all looking at.

Ms Heaven: But, Sir Frank, just to understand my question, what I’m putting to you is that you knew at the time that your advice, which was that Wales should diverge, was in fact confusing the Welsh public, because here we have in a note from August that the public were mystified; so you had appreciated that at the time, hadn’t you?

Sir Frank Atherton: I had not. I think what you have to remember is that for every person, every group, that was advocating more mandation of masks, there was an equal and opposite group advocating that masks should not be used. The public was not aligned on that issue, there was no single public voice.

So, you know, if I look back to where I was at that time, I believe that my advice was appropriate.

Ms Heaven: Your role was to provide leadership to the public, wasn’t it, and to be that single voice?

Sir Frank Atherton: My role was to provide advice to the ministers on the best approach to –

Ms Heaven: All right. Let’s move on then.

You have been asked by CTI about what behavioural science and other expert advice you received and from whom to justify your advice on face coverings. Just to be clear and so that you understand, Ann John, who headed up the TAG behavioural subgroup RCBI, who gave evidence to my Lady last week, suggested that the divergent approach that Wales took was confusing and she thought it was damaging to public trust, and she gave the example of when you could wear a mask on the train in Wales but as you left Newport you could take it off. We can’t see any evidence in the disclosure that you commissioned anybody to give you behavioural advice and to think about the theories that you had come up with to justify this divergent approach. So just to be absolutely clear, did you task Ann John to provide you with behavioural science advice on your theories and in particular risk behaviour and this risk of mask discrimination?

Sir Frank Atherton: That was the role I gave to TAC. TAC was commissioning the advice. Ann John I think was a member of TAG, the TAG, the broader Technical Advisory Group, and there was a behavioural science group that – a subgroup of TAG. So I believe that they did adequately look at that issue.

Ms Heaven: Well, we haven’t found it in the disclosure, so can you give us a bit more assistance: do you know when you got that advice from TAG, behavioural science advice?

Sir Frank Atherton: The advice I got from TAG was generally on face coverings as a whole and I would expect that that covered the behavioural science aspects which would have been dealt with by their subgroup.

Ms Heaven: Okay.

You have been asked about face mask militancy and the reason you have been asked about it is because we can see in the WhatsApps that this issue comes up from Welsh Government officials, this concern about not wanting to promote what’s called face mask militancy.

Was this concept something that came from you?

Sir Frank Atherton: It’s not a concept I’ve ever come across, really, I don’t really know what it means.

Ms Heaven: Well, the idea that policy should be informed by a concern around people without masks being discriminated against by other people in public?

Sir Frank Atherton: No.

Ms Heaven: Okay.

Let’s move on to my next topic, please, and it’s care homes, and I’m going to show you a document in a moment, but before I do, let me just give you an introduction.

So we’re going back now to the beginning of April, and this is the 8 April 2020 guidance for care homes called “Admission and Care of Residents during COVID-19, Incident in a Residential Care Setting in Wales”. And this guidance, it was eventually signed off by yourself and Albert Heaney. Let me just read to you what it said:

“Negative tests are not required prior to transfers/admissions into the residential setting.”

“Some of these patients may have COVID-19, whether symptomatic or asymptomatic … these patients can be safely cared for in a care home if this guidance is followed.”

So in other words, the Welsh Government introduced guidance that you signed off, envisaging and indeed requiring care homes from 9 April to admit people from hospitals where they had symptoms of Covid-19 without a test being required.

Now, the day before this policy was signed off by yourself, deputy chief inspector of Care Inspectorate Wales, Margaret Rooney, wrote an email raising concerns about this policy and you were copied in to this.

So if we could look at this document, please, INQ000336393, and it’s the second page.

If you just indicate when you can see that, thank you.

So this is an email from Margaret Rooney, which is on the other page, but that’s fine, we’ll just stick with the cc. We can see there, can’t we, that you’re cc’d into that, Frank Atherton.

I won’t read it all out. She’s talking about the policy:

“Hi all,

“I can see this will go out from the [CMO] and Deputy Director General of Social Services and Integration. I have provided some comments …”

If we go down to the last paragraph, that’s what I want to ask you about:

“I think it is quite tricky to align the … [Document read] … say if the virus was to spread in such a care home?”

Okay, so before I ask you about this, context: we know at this stage Covid-19 was rapidly spreading through care homes, no doubt my Lady will be looking at it shortly, but it had come up in the Covid-19 core group meeting. The Welsh Government Local Association was so concerned that they demanded a meeting with Vaughan Gething, which happened on 3 April. And as we know, community transition at this stage is sustained in Wales.

So the first question is this: Margaret Rooney was right, wasn’t she? Requiring hospitals – sorry, care homes to accept patients with Covid from hospitals was completely inconsistent with the shielding advice that was being given in the community, and it obviously created a significant risk to life for this vulnerable cohort in care homes. Do you agree?

Sir Frank Atherton: So the advice note that you refer to that was sent out to the system was an advice note developed by Public Health Wales on how to effectively manage this situation.

We have to remember where we were at this point in the pandemic, that we were watching Italy – hospitals filling up and falling over, and we were very anxious to avoid that in Wales and in the UK. The advice that Public Health Wales put together, which included the advice about how care homes could receive patients who had either been in contact with patients in hospital with Covid-19 or who had – who were symptomatic, that advice took account of advice which was issued, I think it’s – you know, I think it was advice, from the British Geriatrics Society. So the common view was that care homes ought to be able to manage cases of infectious disease by isolating people within there.

Now, that’s not an easy – that was not an easy decision, I think, for ministers or for anybody to make. But it was in the context of the hospitals absolutely risking being overloaded and it was in the context of patients – elderly people who were not affected by Covid, who were asymptomatic in hospital but potentially staying in hospital and becoming infected.

So it was an absolute imperative to get people back to the safest place where they could be. Now, these were difficult choices, but they were not easy choices, and the alternative of keeping everybody from a care home in a hospital setting would have led to negative consequences in a different direction.

So was the advice from – Margaret absolutely wrote to us and rightly flagged the issue, but that had been taken into account by Public Health Wales as they drafted the guidance and by the British Geriatrics Society as they provided advice to us as well.

Ms Heaven: Okay. But just finally, then, this was at a time when Covid-19 was rapidly spreading in care homes, there was no PPE, there was no testing, and this was going to be symptomatic individuals being put into care homes, potentially in large numbers. So how did you, as CMO, signing off this policy, satisfy yourself that the rights of vulnerable people in care homes were protected and their lives were not being put at risk? How did you satisfy yourself?

Sir Frank Atherton: The first thing is the numbers were not large, they were not large. There was PPE, government had worked with the care home sector to make sure that they had access to PPE, although their prime responsibility, hopefully, the providers, was to provide PPE. So that was happening.

Public Health Wales had been very deeply involved with the care home sector in providing infection control advice. So those were the measures which were in place to enable people with any infectious disease, let alone whether it’s coronavirus or any other infectious disease, to be managed safely in a care home.

Now, the other thing to remember, which is quite important, is that of course infection was coming into care homes from many directions, it was coming in largely from the community, and so it was really important that we provided that general advice on infection control to the care homes so they could manage people – safely manage people coming in from the community and from hospitals. Now, that was not an easy task for the care homes, I absolutely accept that, that was not an easy task, but there was no safer alternative that we could see.

Ms Heaven: Finally, it wasn’t long, was it, before this policy was reversed? I think it was about a week and a half. It’s in the statement of Albert Heaney. That’s correct, isn’t it?

Sir Frank Atherton: I haven’t read that statement.

Ms Heaven: Thank you, my Lady.

Lady Hallett: Thank you, Ms Heaven.

Ms Foubister.

Questions From Ms Foubister

Ms Foubister: Thank you, my Lady.

Good morning, Sir Frank, I represent John’s Campaign and Care Rights UK. In May 2020 you expressed a concern about indirect harm caused to young people and socially disadvantaged groups in particular, and you suggested more information was needed. Did you take any steps to investigate indirect harms relating to other groups such as those suffering from dementia or those suffering from non-Covid medical conditions?

Sir Frank Atherton: I’m sorry, when you say I expressed a concern, where did I express that concern? And can you –

Ms Foubister: So my reference is to paragraph 160 of your witness statement. Perhaps we can pull it up or I can read out what you say. About halfway down paragraph 160 you said:

“I informed Ministers [this is around 7 May 2020, at one of the 21-day reviews] that I was concerned about indirect harms, especially for the young and for socially disadvantaged groups and I suggested that we needed more information on the nature of the indirect harm to these groups for future reviews.”

So my question is around what other groups you were considering, in particular those suffering from dementia or other non-Covid medical conditions, and what steps you took to think about and investigate indirect harms for those groups?

Sir Frank Atherton: So there was a very real concern throughout the pandemic about the harms to – you know, the non-Covid harms, which is what you’re referring to, which could fall on, you know, many parts of the – of society. We were worried about people’s access to routine healthcare in particular. So there was quite a lot of work thinking about how we could boost general practice, how we could get back into – you know, as the infections waves started to recede, how we could restart services for those vulnerable people that you’re talking about.

Ms Foubister: And so, in around May, what steps were taken in relation to those groups?

Sir Frank Atherton: I can’t tell you any specific steps, but there were – there was a socioeconomic subgroup of – which was set up under the TAC, I believe, which was led by our chief economist, and that was looking at the needs of particular groups such as that and trying to find ways to ameliorate the impacts, the negative impacts that lack of services might have on them.

Ms Foubister: Thank you.

Thank you, my Lady.

Lady Hallett: Thank you.

Does that complete the questions for Sir Frank?

Mr Poole: My Lady, it does.

Lady Hallett: Thank you for your help, Sir Frank.

I’m afraid I can’t, again, give you a guarantee I won’t ask for your help again –

The Witness: Thank you, my Lady.

Lady Hallett: – because of course we have the health module to come, but thank you for your help so far.

The Witness: Thank you.

(The witness withdrew)

Mr Poole: My Lady, if I can call Dr Robert Orford, please.