10. Submissions on Behalf of the Covid-19 Airborne Transmission Alliance by Mr Simblet KC

Mr Simblet: Thank you, my Lady.

As my Lady knows, we represent the Covid-19 Airborne Transmission Alliance, CATA, who you have met in the previous two preliminary hearings. As we said on those occasions, CATA is here to help your Inquiry to conduct an effective investigation, to obtain a proper evidential basis for meaningful and informed recommendations, and to encourage those to be expeditiously implemented before any future pandemic.

Today, I wish to build on what I hope are regarded as our constructive written submissions and to emphasise that understanding how Covid-19 is and was transmitted is essential to any assessment of the appropriateness of the UK Government response to the pandemic.

That’s particularly so in this module, where it’s important to look at health and safety within the healthcare system during the pandemic, and appropriate to raise this at this last preliminary hearing since such proper understanding of Covid transmission should inform fundamentally how you organise this module, including what it covers, managing disclosure and the obtaining and selection of witnesses.

So I shall address three points today.

First, the implications of airborne transmissibility of the Covid virus in the healthcare system.

Secondly, how that informs what should be considered to be healthcare in the context of this module.

And, thirdly, the IPC expertise the Inquiry should draw on.

So first, my Lady, this being potentially our last opportunity to do so before the substantive Module 3 hearings, is: why is the airborne transmissibility of Covid-19 important for an investigation of the healthcare system?

Well, CATA submits that there were profound cascading consequences flowing from the initial response to the pandemic within the droplet paradigm and the very slow march to appreciating the virus’s airborne nature.

The impact on the healthcare system was grave. The failure to recognise the airborne nature of the Covid-19 virus, alongside the departure from existing policies, practices and procedures for dealing with unknown viruses, was disastrous.

As CATA has explained previously in its written and oral submissions, there were procedures in place in the healthcare systems for dealing with airborne viruses, and it is a fundamental health and safety principle that airborne precautions should be followed until there is scientific evidence to the contrary. That’s referred to as the precautionary principle. And this basic tenet underpinning health and safety legislation and practice should have informed the approaches to disease prevention and control within the healthcare system.

In fact, what happened was exactly the opposite. As we’ve said in our written submissions at 2.6, alert messages were sent to healthcare workers stating that Covid-19 is not airborne in its transmission and is droplet carried. That was seriously misleading and wrong. As we have put it in our written submissions at paragraph 2.1, SARS-CoV-2 is unequivocally an airborne transmitted pathogen, that is to say it is carried in tiny droplets known as aerosols. These are sufficiently small that they remain suspended in air for long periods of time and, when inhaled, initiate disease.

So the UK Government’s pandemic response treating SARS-CoV-2 as transmitted primarily by droplets as opposed to being an airborne virus was seriously flawed and remained so.

Any uncertainty around the means of transmission should have led on the precautionary principle to the presumption that the virus transmission was airborne and triggered the appropriate protections against this disease, and this serious misstep needs to be considered at all stages of your process.

One direct impact upon CATA’s membership of this failure was in terms of healthcare workers’ safety and the nature of such personal protective equipment as was provided.

So why were healthcare workers wearing only surgical masks? The appropriate kit to guard against airborne transmission is respiratory protective equipment such as powered respirators and FFP3 respirators.

Or, as the BMA have highlighted in their written submission, why was a stop order placed on FFP3 procurement in June 2020? This concerning revelation must be investigated thoroughly by the Inquiry, given the profound impact it may have had on healthcare workers’ safety during the pandemic.

These issues are not just about healthcare worker safety, important though that obviously is, they affected the wider public with whom the healthcare workers were dealing, because the public were exposed to greater risks of infection and, of course, suffered an impact on the healthcare system through staff absences.

My Lady, the airborne nature of Covid also informs the second matter to be addressed: what should be investigated as healthcare systems in Module 3?

CATA’s always advocated for an expansive view of healthcare. Our written submissions express the concern that an overly restrictive definition of healthcare in Module 3 will result in a failure to investigate properly or at all healthcare administered within community settings.

At the last preliminary hearing in September 2023 we were joined by other core participants, who submitted that Modules 3 and 6 should run in tandem, since what is considered healthcare and social care cannot easily and sufficiently be demarcated.

When looking at healthcare systems, the definition, we say, cannot depend on whether care is received in a hospital or not. We support on this point particularly the written submissions from John’s Campaign and we say further, first, an airborne virus does not stop at the door of the hospital; those working in healthcare systems very often do not only work in hospitals, and we’ve given many examples in our written submissions; and, thirdly, there was conflicting advice, instructions, variations in equipment and practice provided either to the same categories of people in their different places or particularly the same people working in different places who receive conflicting instruction according to where they actually are.

So that, we say, cannot properly be examined unless you change what appears to be the approach. We say that the Inquiry can only discharge its proper investigative duties if it interrogates also the impact of Covid-19 on community healthcare during the course of Module 3, and we seek confirmation that this matter will be considered appropriately within this module.

So it’s important for us to say this is not just simply a lament about hospitals or topics omitted from this module. Rather, our point is: if you don’t investigate the conflicting advice, instructions and policies and practices properly, you may end up with incorrect conclusions. You could proceed on a false premise, namely failing to understand how the interdependent nature of healthcare systems – and that word is important, “systems” – and the people in them were affected by Covid. You would proceed on a false assumption that the impact in hospitals can be examined as if a hospital is isolated from the rest of the healthcare system. That is simply wrong and would almost inevitably lead to wrong answers.

Thirdly, my Lady, the Inquiry’s engagement with the appropriate infection prevention and control, IPC, guidance and appropriate expertise.

We had provided various materials about that, we are pleased to be told today of the progress that there has been on that. Our submission is that health and safety law such as the COSHH regulations and RPE standards appear to have been ditched in favour of IPC guidance without legitimate or transparent justification, and we submit that the experts must address that issue.

It’s also, we say, important for the Inquiry to obtain – well, to utilise such expert evidence on the correct approach to IPC guidance, not just looking back during Covid but to provide clarity ahead of the next pandemic.

Again, there were existing procedures in place which were not followed in relation to similar respiratory viruses. There was already substantial learning which could and should have been drawn upon at the outset of the pandemic in the formulation of the appropriate IPC guidance, and we support the Royal College of Nursing’s call for a clear chronology of when, by whom and how the IPC guidance was varied and then disseminated.

The failure of IPC measures and the failure to recognise the fact of airborne transmission is thus key to understanding the significance of other issues that have been raised previously by CATA and other CPs in this Inquiry. For instance, inadequate and unsuitable respiratory protective equipment and why the failures in relation to those were so catastrophic may well inform, for instance, the differential impact on those from a minority ethnic background, as highlighted by FEMHO and the Frontline Migrant Workers, among others.

More broadly, and as we and other CPs have submitted briefly, the failure to look after healthcare workers not only caused and still causes the loss of their lives, health and financial security, it still has enduring consequences on healthcare provision now. On this we agree with the submissions of the BMA at paragraphs 10 to 15 and welcome their support in paragraphs 20 to 22 of their submissions for the issues relating to the departure from usual health and safety reporting procedures and the RIDDOR requirements about which we’ve made submissions previously.

The expert evidence that you hear, my Lady, is important not only for the understanding of past choices but also to frame any recommendations for the future. Lack of access to such expertise was a significant factor that led to the vulnerability of healthcare to this airborne risk, and its lack of appreciation of the significance of an airborne transmission was a significant failure.

To conclude, my Lady, after today there are only 151 days until the hearings begin. That sounds a lot of time. It’s less than six months, and there is an immense amount to organise if this module is to investigate properly.

CATA remains, of course, available to provide all possible assistance.

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

Ms Davies.