COVID-19 EXPERT LEGAL INSIGHTS

The future public inquiry into COVID-19

7 May 2020

The devastation wrought by COVID-19 has led to profound questions about the UK government’s response to the pandemic.  Calls for a public inquiry are continuing to mount and are likely to prove difficult to resist.  This blog considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.
 

Background

The UK now has highest COVID-19 death rate in Europe and an economic crisis unmatched in recent history. Against this haunting backdrop, calls for a statutory public inquiry into the country’s response are continuing to mount, including by Sir Bob Kerslake, the TUC, Amnesty International and Liberty.

The legal power to order a public inquiry rests with a government minister, who may convene one where there is “public concern” about a particular event or set of events. The presence of the word “may” (section 1 of the Inquiries Act 2005) signals that the minister’s power is discretionary, and that in theory he or she can reject the mounting voices of concern.

That important element of discretion makes it unlikely that any public inquiry will formally take place until the pandemic is over, although the intention to have an inquiry in due course could be announced at any point.  A public inquiry is a major investigation with special powers to compel and gather evidence, which is then evaluated during often lengthy public hearings. It will involve a very significant amount of work, which – if it were to be done now - might significantly distract ministers and civil servants from the more urgent task of tackling the pandemic.

But when the crisis subsides the calls will be harder to resist.  For one thing, the political pressure is likely to mount.  Perhaps more importantly, the government is also likely to find itself compelled to hold an inquiry by the obligations imposed on it by Article 2 of the European Convention of Human Rights (“ECHR”).   

The requirements of Article 2 ECHR

Article 2 of the ECHR confirms that: “everyone’s right to life shall be protected by law”.  It is non-derogable, placing two substantive duties on the government: (i) an obligation to refrain from taking life, and, (ii) a positive obligation to take appropriate measures to safeguard life.  

The positive obligation is itself broken down into two separate but linked duties: (i) a duty to take all reasonable steps to protect an individual’s right to life (“the protective duty”), and (ii)  a duty to initiate an effective independent public investigation into an individual’s death (“the investigative duty”).

The investigate duty arises whether or not the state is in breach of its protective duty, and in England and Wales, case law (see for example R (Parkinson) v HM Senior Coroner for Kent [2018] EWH 1501 (Admin)) establishes that it is only engaged where “systemic” issues are suspected to have contributed to a person’s death. 

Substantive positive duties: when is the duty to investigate engaged?

It is useful to look at some examples of the types of situation where “appropriate systems” need to be in place. By way of example, domestic cases have found:

  • Medical authorities must make sure appropriate measures to protect patients’ lives are in situ, including having in a place suitable systems of work: Savage v South Essex Partnership NHS Trust [2009] 1 AC 681, §45;
  • Military authorities must put systems in place to ensure appropriate equipment is provided to soldiers to protect them from extreme temperatures during service: R (Smith) v Oxfordshire Deputy Coroner [2011] 1 AC 1;
  • The ambulance service is required to put in place resources and operational systems to ensure ambulances are dispatched to home emergencies without delay: R (Humberstone) v Legal Services Commission [2011] 1 WLR 1460, §69-70.

Further examples are linked to situations where the government knows or ought to know of a risk of danger to life, and ought to take practical steps to provide effective protection to those at risk. Some examples of where Strasbourg has found violations include:

  • A failure to put in place regulations geared towards dangerous activities: Oneryildiz v Turkey [2005] 41 EHRR 20;
  • A failure to make regulations compelling hospitals to adopt appropriate measures for the protection of patients’ lives: Calvelli and Ciglio v. Italy [2002] Application no. 32967/96;
  • Failure to provide masks to protect state employees from asbestos exposure: Brincat & Others v. Malta [2014] Application no. 60908/11.

Each of these cases was decided on particular facts, and importantly the decision makers in question did not have to contend with an unprecedented pandemic. Nonetheless, the principles relevant to the COVID-19 pandemic emerge with reasonable clarity: 

  1. The government/health authorities must identify risk of death and put in place measures to mitigate risk;
  2. The government/health authorities must adopt appropriate systems to protect lives;
  3. The government/health authorities must provide appropriate equipment to protect the lives of patients and employees.

With these principles in mind, the following key policy decisions and operational factors can properly be described as systemic issues which are likely to have, or are suspected to have, contributed to deaths from COVID-19, thus triggering the government’s duty to investigate:

  1. Early decision making/pandemic planning;
  2. The policy and guidance on discharging hospital patients to care homes;
  3. PPE guidance;
  4. PPE supply and resourcing.

These areas are also likely to form part of the terms of reference of any future COVID-19 Inquiry, and will be carefully considered by any prospective core participants bearing in mind they stand as the specific instructions which set out the questions the Inquiry should ask, investigate, and report on.

Early decision making/pandemic planning

The extent of pandemic planning and the government’s early response is already a key focus of unease. As part of its contingency planning under the Civil Contingencies Act 2004, as far back as 2006, the then government recognised that, “one of the highest current risks to the UK is the possible emergence of an influenza pandemic - that is, the rapid worldwide spread of influenza caused by a novel virus to which people would have no immunity, resulting in more serious illness than that caused by seasonal influenza.”

Moving forward to 30 January 2020, an emergency committee of the World Health Organization (WHO) declared that COVID-19 was a public health emergency of international concern. WHO said it required an immediate response, and in the absence of a vaccine, insisted that the virus should be addressed with extensive testing, tracing and isolating. At that time, the number of deaths within vulnerable groups in Wuhan was rising and an ever-present cause for concern.

Importantly in the domestic context, on 2 March, the Scientific Pandemic Influenza Group on Modelling (“SPI-M”) reported that it was, “highly likely that there is sustained transmission of COVID-19 in the UK at present.” SPI-M considered that without “stringent measures” 80% of the population would become infected, with an estimated death rate of 0.5% to 1%: between 250,000 and 500,000 people.

Yet a number of key policy decisions were made, which were out of step with WHO guidance, and which participants in a future inquiry may argue were inconsistent with the government’s obligation to take practical steps to reduce the risk of death: 

  • The decision, on 12 March, to end testing and contact tracing when moving from the “contain” phase to “delay phase” of the government response;
  • The apparent decision to adopt a “herd immunity” strategy, whilst seeking to delay the peak of the infection, and relatedly, the adequacy of measure put in place during this delay phase;
  • The timing of lockdown, and whether it should have been introduced earlier than on 23 March.

The policy and guidance on discharging hospital patients to care homes

Another high profile concern was the return of significant number of elderly and vulnerable hospital patients to care homes in the absence of testing.

On 2 April the government published policy and guidance on the discharge of patients from hospitals to care homes, some of whom may have COVID-19. The guidance, Admission and Care of Patients during COVID-19 Incident in a Care Home, straight forwardly advises that COVID-19 patients, whether symptomatic or asymptomatic can be safely cared for in a care home if the guidance is followed.

Controversially, the guidance expressly permitted the return of hospital patients to care homes without the need for a test: put simply, the guidance allows for discharge of asymptomatic patients to care homes, with only social distancing measures in place, whilst symptomatic patients are isolated, with staff tasked to immediately instigate full infection control measures. The guidance to care home staff was that those coming into contact with a COVID-19 patient while not wearing PPE could remain at work.

The guidance immediately alarmed those working in the care sector, including the National Care Forum, who highlighted their concerns about the practicality of social distancing in care homes, the risks posed to unprotected staff (whose exposure to symptomatic patients was not likely to be short lived as the guidance assumes), and whether full consideration had been given to the availability of PPE in the care sector.

Distressingly, on 28 April 2020, data published by the Care Quality Commission, showed that from 10-24 April, there were 4,343 deaths caused by COVID-19, based on notifications by care homes. Analysis carried out by the Health Foundation, based on data from the Office from National Statistics, indicates that the care home death rate sharply accelerated during this period.

The worrying correlation between discharges from hospitals under the guidance, the incubation period of COVID-19, and the accelerated care home death rate, will almost certainly bring the guidance into the scope of any future public inquiry.

PPE Guidance

The distress to healthcare workers caused by guidance and adequacy of PPE has rarely been out of the headlines.

In December 2019, a report published by the Health and Safety Executive, evaluating existing PPE for NHS staff working with patients with Highly Infectious Contagious Disease (HCIDs), made two key findings.

First, that basic PPE worn by healthcare workers for protection against Norovirus and Flu was not protective if worn to assess a patient with an HCID. Second, that infected bodily fluids from a patient could be transferred to the healthcare worker when wearing or removing the PPE currently in use for HCID patients. As such, the HSE recommended that when dealing with HCID patients all health care workers should wear a gown, an FFP3 respirator masks and visor.

Whilst the HSE notes that its evaluation was about HCIDs in general, and not specifically COVID-19, its application to the pandemic is likely to be considered by a future Inquiry.

In contrast, on 13 March 2020, Public Health England downgraded its guidance on PPE and told NHS staff it was safe to wear less protective aprons and basic surgical masks in all but the most high risk circumstances.

Against this background, and the mounting evidence from Wuhan and Italy about the unusually high death rate amongst healthcare workers,  many doctors immediately voiced their concerns about the of lowering of PPE standards.

Some of their specific concerns were that: (i) the rate of transmission of COVID-19 infection coupled  with a lack of testing, meant that all hospital doctors should at least have access to basic face masks, whereas the guidance suggested it was only those doctors who come into close contact with diagnosed cases who should have basic masks, and, (ii) that doctors who are in close contact with diagnosed cases, should all have access to FFP3 masks, whereas the guidance suggested that those masks should only be used in the more extreme circumstances envisaged by the guidance. 

Whilst on 2 April 2020, PHE revised its guidance, specifying precise PPE requirements for healthcare workers, and the need for risk assessment at local level by individuals and organisations, possible linkages between the adequacy of this guidance, procurement (discussed below), and the tragic deaths of healthcare workers, are very likely to be considered systemic issues which require investigation by an Inquiry pursuant to the obligation imposed by Article 2.  This is perhaps more so now that the Chief Coroner, Mark Lucraft QC, recently issued guidance stating that inquests are not a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers who died of COVID-19.

PPE supply and resourcing

The severe shortage of PPE during the pandemic has, like the PPE guidelines, rarely been out of the news. By way of example, on 10 April 2020, the British Medical Association warned that PPE supplies in London and Yorkshire were at dangerously low levels, and that some pieces of equipment were no longer available.

This situation is widely thought to have put many healthcare workers at risk, as well as placing many Trusts and healthcare providers in breach of the Personal Protective Equipment at Work Regulations 1992.

But, PPE has been in short supply across the globe, and research by the Institute of Government (“the IoG2) indicates that there are several problems with preparation, supply and distribution:

  • The UK’s national pandemic stockpile was designed for a flu pandemic and was not prepared for coronavirus;
  • The UK relies on procuring PPE from abroad, without the back up of large-scale domestic supply – for which any new supplier must be vetted and validated;
  • Global PPE demand has been unprecedented, with export bans in place and shipments to the UK cancelled or delayed;
  • The UK did not take part in the EU bulk procurement programme for PPE.

Yet taking all of those factors into account, according to the IoG, the main problems identified with NHS procurement in England in recent government reviews have been inefficiencies and poor procurement capability, with recent research finding that the procurement capability in the NHS is still seen by civil servants as a weakness.

Whilst there obviously have been, clear difficulties with procurement and supply, the knowledge of the weak procurement capability leads to questions about whether this should have been identified sooner. Bearing in mind the known risks to healthcare workers – learnt through the experience of Wuhan and Italy – our ability to prevent a recurrence of PPE shortages during future viral “spikes” is very likely to bring procurement within the scope of a COVID-19 Inquiry.

Conclusion

It is never easy to examine your own mistakes, especially when they are the cause of grave and widespread distress and harm. The decision to order a COVID-19 Inquiry will require significant political bravery. Some of the most difficult decisions a government has ever had to make will fall under the spotlight, and, as the crisis continues to unfold, future decisions may also come into focus.

Further information

A condensed version of this article was included in the New Law Journal on Thursday 21 May 2020. You can view the article on the New Law Journal's websiteSophie was also quoted in various publications on this subject and she appeared on LBC news.

Should you have any questions about any of the issues covered in this blog, please contact Sophie Kemp or contact any member of our public law team.

About the author

Sophie Kemp is an experienced public lawyer, advising on major public inquiries, judicial review, and modern slavery and human rights.  Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation. 

She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees. 

 

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