5. Submissions on Behalf of Covid-19 Bereaved Families for Justice Cymru by Ms Gowman

Ms Gowman: Thank you, my Lady.

Good afternoon. As you know, I represent Covid Bereaved Families for Justice Cymru, and I will refer to them as the Cymru group.

We firstly wish to thank you, my Lady, for granting the Cymru group core participant status in this module. As you know, having met the group, a large proportion of them lost loved ones after they contracted Covid-19 in social care settings, and as a result the Cymru group feels that they have real standing on the issue of the impact of Covid-19 on the social care sector in Wales.

The Inquiry has received written submissions from the Cymru group, and I don’t propose to repeat the same.

Turning firstly to my first topic, the structure of Module 6, as you’ve heard, my Lady, the group invites the Inquiry to consider adopting the approach taken in Module 2 by introducing sub-modules 6A, 6B and 6C to specifically address the impact of the pandemic on the devolved administrations.

We have listened to what has been said by Counsel to the Inquiry and of course we understand the need for proportionality, but we wish to make the following final points for your consideration before you make your determination.

As my Lady is acutely aware, health and social care are devolved competencies, with responsibilities sitting firmly with the devolved administrations. And as has been clear in earlier modules, devolution is not an artificial construct, rather it has resulted in tangible variations across the four nations in respect of significant pillars of legislation, political decision-making, structures and implementation.

The Cymru group feels strongly that subdivision of the modules would not only reflect the constitutional position but, on a practical basis, it would enable equal allocation of the Inquiry resources to ensure a robust investigation of the issues in respect of each of the four nations making up the UK.

If the Inquiry is not minded to subdivide the modules, we submit that the provisional outline of scope ought to be slightly revised and, as stressed by Ms Morris King’s Counsel, sufficient time allocated to allow for the position in Wales, and indeed each of the devolved administrations, on each of the identified issues within scope to be thoroughly scrutinised.

Turning to the provisional outline of scope, the key areas of concern for the Cymru group are set out at paragraph 9 of the submission. Overall, the group considers that the scope is sufficiently broad to encompass its key areas of concern, subject to the following observations.

Firstly, the scope identifies that the Inquiry will not consider the state of adult social care systems in the UK prior to the pandemic, save where necessary to understand how the pandemic impacted on adult social care. We agree with the submission of the Trades Union Congress that it will inevitably be necessary to consider to some extent the broader context of the state of the care sector in each of the four nations at the outset of the pandemic, because it’s only within this context that the root cause analysis of any negative impacts of the pandemic can be fully understood to inform the lessons to be learnt.

Secondly, my Lady, the provisional outline of scope suggests that the ambit will cover “adult care in residential homes, care provided in the home, but not care provided within day centres or in supported housing”.

The Cymru group agrees with the submissions made other core participants that clarity surrounding definitions is required. For example, the Cymru group considers that the present outline of scope is in fact unclear as to whether nursing homes as distinct settings from residential homes would be included.

Similarly, accommodation settings such as sheltered accommodation, extra care, hospices and shared lives are not mentioned, and clarity surrounding definitions is important.

The Cymru group agrees with the written submissions of CBFFJ and Northern Ireland group that the Inquiry’s experts on the structure of adult social care may assist in further refining the provisional outline of scope and the list of issues to come.

Further, the Cymru group supports the call of other core participants for the Inquiry to expand its exploration to a broader range of adult social care settings, not necessarily all settings but certainly a broader range. We understand what has been said by Counsel to the Inquiry on the need for proportionality, but we agree in particular with the submission of National Care Forum, Homecare Association and Care England, that the Inquiry’s intended narrower focus risks neglecting a large cohort of individuals whose needs and circumstances during the pandemic were distinct from those residing in care homes, and at homes that are equally meritorious of consideration.

Third, on the issue of the decision-making by the UK Government and devolved administrations, this is issue 3 of the scope, the group welcomes the Inquiry’s intention to further explore the decision to discharge people from hospitals into the care sector. As you will recall, this was a significant concern for the Cymru group in Module 2B, the Welsh Government having recklessly endorsed and exposed those in care homes by discharging hospital patients without testing, against the context of inadequate and insufficient PPE and inadequate testing of staff more broadly.

In addition to hospital discharge, the Cymru group seeks confirmation that the Inquiry will explore under this heading: firstly, the impact of any inadequacies in the Welsh Government’s engagement with the sector; secondly, the impact of deficiencies in a co-produced approach to response planning; thirdly, whether sufficient regard was paid to early warning signs and vulnerabilities emanating from within the social care sector; fourthly, the impact of delayed introduction of testing for all staff and residents; and fifthly, the impact of inadequacies in PPE.

Finally, the Cymru group invites the Inquiry to consider under this heading the impact of social care legislation easements under the Coronavirus Act, which in essence had the effect of absolving the local authorities from the requirement to carry out needs assessments of adults with social care needs but also adult carers, and also of its duty to meet eligible care and support needs arising.

Fourth, on the issue of the provisional scope, is the management of the pandemic on the ground, and the Cymru group invites confirmation to be provided that this will include, firstly, how infection control was managed prior to individuals entering the broad range of social care settings, secondly, how it was managed in a broader range of care settings once arrived, including testing, segregation and PPE, and, finally, how infection control was managed between settings and, in particular, the movement of staff.

This topic should also include whether sufficient regard was had on the ground to the risk of asymptomatic transmission and airborne transmission. And if regard was not had, why not.

Fifth, on the issue of the provisional scope, Do Not Attempt Cardiopulmonary Resuscitation notices. You will know, my Lady, that most members of the Cymru group’s loved ones were placed on DNACPRs as soon as they tested positive for Covid, without due process. Often neither the deceased nor family were consulted over the decision, and many members, some of whom held a power of attorney or a deputyship over health and welfare, only discovered that a DNACPR was in place after records were requested. And even where patients had been informed, many simply did not understand the implications of being under such an order.

The final point I make on the provisional scope, my Lady, is in respect of bereavement support.

The impact films and evidence given by the bereaved in modules to date has served as tangible heartbreaking reminders of the tremendous loss of life but also the trauma experienced by the bereaved. Against this context, it’s understood that none of the Cymru group bereaved members were made aware of any bereavement support offered by the social care sector during the pandemic, and we say that this should be explored to some extent in this module.

Now, within the context, my Lady, of the provisional scope, I turn to evidence gathering and disclosure. The Cymru group submits that in order to properly examine the Module 6 issues in Wales, Rule 9 statements should be requested and received from relevant individuals and organisations in Wales.

The group notes that requests have been sent to various recipients and we seek confirmation for the avoidance of doubt that this includes organisations and institutions whose members work within the social care sector in Wales: the Welsh divisions of the Welsh colleges, and charities, groups and non-governmental organisations operating in Wales, for example the WLGA, local authorities, health boards, Care Inspectorate Wales, the Older People’s Commissioner for Wales, the Equality and Human Rights Commissioner for Wales, Care Forum Wales, Social Care Wales, Public Health Wales, and finally, the Welsh Institute for Health and Social Care.

We also consider that it would be of assistance to obtain evidence from frontline staff in Wales in order to understand how policies, procedures and guidance were implemented on the ground, and the Cymru group is happy to write to the ILT with further specific suggestions if this would assist.

The same point, my Lady, applies to disclosure insofar as the Cymru group maintains that disclosure needs to be requested from and received from key Welsh bodies who are relevant to decision-making on this topic in Wales.

Moving on to the instruction of expert witnesses, in a similar vein to submissions made in respect of Rule 9, the Cymru group submits that in order to properly examine the Module 6 issues in Wales, experts must be instructed who have sufficient expertise to be able to provide evidence dealing with Wales specifically, and in that regard we adopt the submission made by Ms Campbell King’s Counsel in the context of Northern Ireland.

In addition to the experts having sufficient expertise, they must also search for, document and analyse the Welsh data in order to scrutinise the position in Wales. The Cymru group invites the Inquiry to consider providing the core participants with confirmation of the identity of experts in advance so that any potential pitfalls can be identified at an early stage and any representations can be made as appropriate.

Insofar as Rule 9s, disclosure and expert evidence is concerned, the Cymru group reiterates its request for such documents to be disclosed to the core participants as soon as reasonably practicable in order to allow for sufficient preparation time ahead of a substantive hearing.

Turning to my final topic, my Lady, Every Story Matters and the participation of the bereaved in Module 6.

The Cymru group has considered the key lines of enquiry for Every Story Matters as outlined at paragraph 41 of CTI’s note, and considers that they broadly mirrored the issues of particular concern for the group. The key lines of enquiry, however, should, we say, be expanded to cover provision other than care homes and domiciliary care in order to ensure that a whole raft of evidence is captured in that means.

The Cymru group again will work with the CTI to identify specific lines of enquiry as required.

What’s clear, my Lady, from previous modules is that the bereaved families have and will continue to provide powerful and valuable information regarding their experiences, as they ultimately witnessed first-hand the devastating consequences of the pandemic on the care sent in Wales, and to this end we echo the requests made on behalf of other core participants that the bereaved be given a further opportunity to give oral evidence in this module. Some of the issues that the Cymru group members can provide helpful evidence on involve PPE, testing, segregation, DNACPR and, perhaps more harrowing, end-of-life care.

Turning to my concluding remarks, my Lady, the Cymru group’s members experienced and continue to experience suffering and trauma due to the devastation caused by Covid-19, and to provide one account for one of our members, she says that her father died from Covid whilst living in a care home. She states that within four days of being informed of a staff-induced outbreak at the home, her father contracted the virus and passed away. And she says this:

“Although we knew it was inevitable that my dad would pass at some point due to the cruel disease of dementia, at no point did we ever imagine that we wouldn’t see him for 11 months, that not one of the family members could be there when he died, and that he wouldn’t get the dignified funeral that he so much deserved. We have been left devastated. Mum’s life isn’t the same; she seems lost, demotivated and no longer has a sense of purpose. She visits the grave one to two times weekly and this has now become her main focus, to make sure Dad’s grave is clean. We find it hard to even think about what happened without reliving the horror and trauma all over again. I know that in my lifetime I’ll never be able to truly get over this and wouldn’t wish this to happen to anybody else.”

And it’s on that basis that the Cymru group continues to seek truth, justice and accountability for all those bereaved in Wales, and for those additional reasons the Cymru group will continue to work proactively with the Inquiry to robustly explore the evidence, to understand what went wrong and why, so that lessons can be truly learned to minimise the potential for future suffering.

Diolch yn fawr, thank you for listening, my Lady.

Lady Hallett: Thank you very much, Ms Gowman.

Mr Friedman.

Mr Friedman: My Lady, before I begin, I hope you don’t mind if in front of you I congratulate Joanne Cecil King’s Counsel, who we know was elevated yesterday.

For those watching, it’s a tradition, at least at the Bar, to do that, but it’s also important, when we thank Ms Carey King’s Counsel and all of her team for preparing this module, that she has the benefit of having Ms Cecil King’s Counsel working with her and for this process.

Lady Hallett: Very nice thought, Mr Friedman, thank you. And I think it must be the first time Ms Cecil has been referred to as Ms Cecil KC in a hearing, so thank you very much.