4. Submissions on Behalf of Scottish Covid Bereaved by Mr Henry

Mr Henry: My Lady, I appear this morning on behalf of the Scottish Covid Bereaved as one of the counsel, including Claire Mitchell King’s Counsel, Kevin McCaffery, advocate, and David Welsh, advocate, instructed by the Inquiries team at Aamer Anwar & Company.

My Lady, Scottish Covid Bereaved have provided written submissions to the Inquiry and would adopt those. My submissions this morning, while brief, are in five parts.

Firstly, I will make some general submissions in relation to this module. I will then address liaison with the Scottish Inquiry, disclosure, expert reports, and Every Story Matters.

Turning to the first part of my submissions, my Lady, the Scottish Covid Bereaved are grateful to the Inquiry for being included as a core participant in this module. Module 6 is of particular significance to a number of the bereaved whose loved ones died in care homes. While they can share with the Inquiry their own experiences of the care sector, they wish to know why their loved ones died, they wish to know why certain decisions were taken by the UK and Scottish Governments, and whether those decisions led to deaths.

They wish to know whether there were failings relating to decisions to discharge patients from hospitals into the care sector, whether there was early discharge when further hospital treatment was required, whether GPs were attending care homes, and how staff at care homes were expected to administer medicines, and what consideration had been given to those who required care at home. And, my Lady, perhaps most pertinently, why Covid-positive patients were discharged from hospitals.

My Lady, Scottish Covid Bereaved are aware from research published by the Scottish Inquiry that by mid-2020 care home residents accounted for 50% of all Covid-19-related deaths in Scotland, a higher percentage than in both England and in Wales.

By early June 2020 more people had died of Covid-19 in Scottish care homes than in hospitals, with 1,818 deaths occurring in care, compared with 1,815 deaths in hospitals.

As Counsel to the Inquiry set out this morning, my Lady, between March 2020 and June 2022 there were 3,592 notifications of deaths related to Covid-19 in care homes in Scotland.

As I hope this illustrates, my Lady, this module is of significance to the Scottish bereaved. In relation to the matters in the outline scope of the module, my Lady, members of Scottish Covid Bereaved have serious concerns about the use of DNACPRs during the course of the pandemic. These concerns particularly focus on issues of communication and ensuring that relatives clearly understood what DNACPR meant, and that ultimately this could be a medical decision.

There are also concerns around capacity, my Lady, and what steps were taken to ensure that loved ones were able to understand and consent to DNACPRs.

It’s the experience of Scottish Covid Bereaved, my Lady, that there were differences in how DNACPRs were recorded in medical notes and communicated to the wider healthcare team.

My Lady, the Scottish Covid Bereaved note and welcome that the module will focus on infection prevention and control (IPC) measures. The Covid bereaved consider that IPC guidance includes not only PPE but also fundamental aspects of IPC such as hand hygiene and cleaning regimes in wards, units and clinical areas, with a particular emphasis on high-traffic and communal areas such as toilets. It is understood that ventilation, and in particular HEPA air filtration and its use in the removal of airborne contaminants, is an essential element of IPC practice.

Given the unique challenges posed by residents within care homes, such as those suffering from dementia, the Scottish Covid Bereaved wonder what consideration was given to the movement of residents within care homes when the IPC guidance was being prepared. It’s hoped, my Lady, that this module can give the bereaved the answers that they seek.

As your Ladyship will be aware, out of all the hardships suffered by the bereaved throughout the pandemic, one of the most difficult to deal with has been being unable to be with loved ones in their final moments. Scottish Covid Bereaved note that rules around visiting were not uniformly applied across different care homes, and even for those who were fortunate enough to be able to visit their loved ones in their last hours, their experiences varied.

Scottish Covid Bereaved consider that there was often a lack of communication with relatives about their loved ones’ health, particularly where there was a deterioration towards the end of life. The bereaved consider that a lack of testing and PPE meant that they were unable to visit their loved ones face-to-face. Though there was the possibility of electronic communication, this proved difficult for those who were deaf or hard of hearing or suffering from dementia, and the Scottish Covid Bereaved welcome this being covered in Module 6, my Lady.

Moving on to liaison with the Scottish Inquiry, my Lady, I’m sure your Ladyship will be aware that the impact hearings for the Scottish Inquiry are under way in Edinburgh, that those impact hearings have raised a number of issues which the Scottish Covid Bereaved consider are relevant to this module of your Ladyship’s Inquiry.

It’s noted that, from the outline scope of Module 6, it appears that there will be some overlap with the Scottish Inquiry’s third portfolio, which is examining the provision of health and social care services. The Scottish Covid Bereaved are aware that the Scottish Inquiry intends to examine, amongst other matters, the provision of social care in care and nursing homes, issues relating to the transfer of patients from hospitals, and the testing of patients and the use of the DNACPR notices.

My Lady, the Scottish Covid Bereaved understand that it’s this Inquiry’s intention in relation to Scottish matters to seek to minimise the duplication of investigation, evidence gathering and reporting with the Scottish Inquiry. Given that the responsibility for much of what is to be covered in this module, at least from a Scottish perspective, was within the Scottish Government’s devolved competency, Scottish Covid Bereaved look forward to hearing how the two Inquiries intend to co-operate in relation to the subject matter of this module and any practical implications of this co-operation.

The Scottish Covid Bereaved hope that this Inquiry will fully consider the matters in the module’s outline of scope as they apply to Scotland. In that regard, my Lady, Scottish Covid Bereaved note the suggestion of the Welsh bereaved that the Inquiry adopt a similar approach in Module 6 as it did in Module 2 and have Modules 6A, 6B and 6C, looking at Scottish, Welsh and Northern Irish responses. Scottish Covid Bereaved would welcome such an approach, my Lady, although we note all that was said by Counsel to the Inquiry this morning.

Moving on to the issue of disclosure, my Lady, we note all that is said in Counsel to the Inquiry’s note and has been said this morning. The Scottish Covid Bereaved look forward to the commencement of the disclosure procedure in the summer of 2024. We are somewhat limited in the submissions that can be made this morning until such time as the results of that disclosure process has been made known and distributed to the core participants.

Scottish Covid Bereaved are mindful, however, my Lady, of the difficulties faced by the Inquiry in obtaining certain evidence from the Scottish Government in Module 2A. This was perhaps the most stark example of the difficulties the Inquiry can face when attempting to recover evidence, and a reminder that the process is often far from straightforward.

Scottish Covid Bereaved are sure that the Inquiry will make every possible effort to ensure that it has obtained all relevant evidence and it’s hoped that there will be timeous compliance with the Inquiry’s Rule 9 procedure from all the core decision-makers across all four nations.

One concern which the Scottish Covid Bereaved have, my Lady, relates to the timing of disclosure and its likely availability to core participants.

For those core participants who have also been core participants in other modules, they are now accustomed to the vast amount of material which is disclosed and which requires to be considered in each module. Given the anticipated scope of Module 6, my Lady, it seems likely once again that there will be a substantial amount of disclosure. There is, my Lady, some apprehension that the timing of the disclosure will leave core participants and their representatives insufficient time to properly consider all materials. The preparation for this module will of course overlap with the preparation and the hearings for other modules, and it’s hoped that all steps are taken to make sure that disclosure is made available as quickly as possible for adequate preparations to be made.

In relation to expert reports, my Lady, Scottish Covid Bereaved understand that, as has been the case in other modules, the Inquiry intends to instruct a number of expert reports again, to assist it by providing written reports and giving oral evidence at the hearings.

Scottish Covid Bereaved will make further submissions in this regard once the identity of the experts and the questions and issues they will be asked to address are disclosed to core participants.

At this stage, my Lady, Scottish Covid Bereaved submit that it’s hoped that the experts will be instructed who will have sufficient and requisite experience in relation to those matters concerning Scotland and the Scottish Government, and Scotland’s own set-up of care home and care provision.

The Scottish Covid Bereaved note the submissions of the UK bereaved, my Lady, who have submitted that the Inquiry should consider the impact of structural and institutional racism and discrimination, and that the expert report should consider racism, ageism, ableism and sexism. The Scottish Covid Bereaved would welcome such an approach, my Lady.

Finally, my Lady, turning to Every Story Matters, Scottish Covid Bereaved are aware that the Inquiry’s research specialists are exploring the opportunities to conduct targeted research in relation to particular topics based on the key lines of enquiry. We note that those key lines of enquiry are set out by Counsel to the Inquiry in her note, and your Ladyship has Scottish Covid Bereaved’s submissions in relation to those key lines.

Scottish Covid Bereaved look forward to positively engaging with the Inquiry and the research specialists. It welcomes the proposed research and has suggested to your Ladyship a number of groups and organisations who may be able to assist the Inquiry in that regard.

My Lady, unless there are any other matters to be addressed, those are the Scottish Covid Bereaved’s submissions.

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

Mr Henry: Thank you, my Lady.

Lady Hallett: Right, we’ll take a break now and come back at 12.05.

(11.48 am)

(A short break)

(12.05 pm)

Lady Hallett: I have caught people by surprise, but not you, Ms Gowman.