On 13th July, we hosted the next in our series of Live Client Newsletter Webinars to update our clients and the Covid-19 Bereaved Families for Justice group on the launch of the Inquiry, next steps, and answer some of their questions live.
This webinar addresses covers some of the key issues that are important to you, including hospital acquired Covid, pen portraits and more. The panellists, which include Elkan Abrahamson, Nicola Brook, and Pete Weatherby QC, also discuss what happens next and the Chair's upcoming opening statement.
Every question that was asked by the attendees of the webinar have now been answered. All of the questions and answers that are of general relevance to you can be found below.
Q: I was wondering whether the Inquiry will be able to address how individual hospital trusts coped with trying to prevent hospital-acquired infections; and importantly, how they could be held accountable?
A: This will be looked into during the Inquiry. Questions about Trusts raises a question about the general as opposed to the individual. The Inquiry will only look at individual cases where they relate to general issues. They will not hear about every single trust but if there is a general issue about a Trust e.g., DNRs I would hope the Chair would hear individual accounts about that general issue. Policy and general issues are better dealt with in the Inquiry, but individual cases would need to be dealt with in an inquest or civil litigation. The findings of the Inquiry can't determine criminal liability or civil claims but can't be inhibited from making findings either. It establishes the facts, finds accountability and makes recommendations as to future conduct.
Q: What happens now that the Inquiry has been set up?
A: The Chair will be making an announcement on 21/7 about the next steps
Q: Is there anything we (clients) need to do at this stage in preparation?
A: If you feel ready to do so you could set down your recollections in as much detail as you remember
Q: What impact will the PM transition have (if any) on the Inquiry?
A: Johnson loses responsibility as soon as he steps down. The new PM will almost certainly be the Minister responsible.
Q: When will we need to provide statements/Pen Portraits for the listening project? Is there a template we can use to help get started?
A: The Inquiry Legal Team hope to start the listening exercise before the end of the year - it will be a way for people across the UK to share their experiences of the pandemic with the Inquiry in a less formal setting than public hearings. The experiences will be turned into information which in turn can be used to support the Inquiry's work. I'm afraid we don't know exactly when you will need to provide something for this exercise. We are waiting for clarification of what the project (now called a 'listening exercise') will involve. Once we know more, we will prepare a template for those who want one.
Q: Will Boris Johnson remain the minister responsible for the Inquiry as he appointed himself to be? If not, will the new Prime Minister appoint a replacement?
A: Johnson loses responsibility as soon as he steps down. The new Prime Minister will almost certainly be the Minister responsible.
Q: I am not in the position to pay for a lawyer to represent me, can I still instruct you?
A: Yes, we are not charging anyone for representation. Our work will be funded by the government's costs scheme.
Q: Does agreeing to the Terms of Reference and having a confirmed start to the Inquiry mean that all legal fees will be paid by the Government?
A: Yes, we are not charging anyone for representation. Our work will be funded by the government’s costs scheme.
Q: Will the NHS be held accountable or investigated for cases where there was negligence against COVID patients?
A: The Inquiry will not examine individual cases except where it is felt they indicate a general/systemic issue.
Q: Will up to date figures be used when the Inquiry refers to how many died instead of ballpark terms like 'thousands'? Can the Covid Inquiry team at BJC use the actual number of deaths when speaking on our behalf?
A: We will insist on up to date figures being used and will refer to actual numbers but there are many possible numbers to use - we will discuss this as we approach the Inquiry.
Q: How much will the Inquiry look at failures of care by GPs and paramedics, especially regarding increased hospital admissions due to lack of outpatient appointments, which caused some patients to contract Covid in hospital.
A: The Inquiry will not examine individual cases except where it is felt they indicate a general/systemic issue.
Q: Would the Inquiry be able to look at structural racism in relation to Covid deaths? I understand that the ToR excluded ethnicity, but there is a disproportionate level of vulnerability and death among BME people.
A: Yes, we will be urging the Inquiry to look at structural racism. The Terms of Reference specifically refer to the Equality Act.
Q: Ideally, in the opinion of the legal team, what sort of people should form the panel?
A: People with life experience, ideally of Covid and its impact on communities.
Q: In your experience of previous public Inquiries, to what extent have recommendations that emerged from the Inquiry been applied?
A: It varies enormously. We are campaigning for an Inquiries oversight structure to implement recommendations where possible.
Q: We have one of the highest death rates for COVID and yet the Government are patting themselves on the back for the vaccine rollout. People (often younger) died because they waited longer than the 3-week period recommended by manufacturers between doses, some waiting at least 8 weeks! Will the Inquiry be looking into this?
A: The vaccine roll out is covered but whether the Inquiry will look into this specific issue depends on what evidence emerges.
Q: I am encouraging people to contribute to my father’s pen portrait to show his different facets. Father, husband, friend, uncle and great uncle. Is this okay?
A: Absolutely, we will contact you when we have further information regarding the listening exercise to help assist you with your pen portrait.
Q: Is there a separate process to Pen Portraits for providing evidence e.g., circumstances of death?
A: There should be, and we have made submissions to the Chair about this, but we await a response and details about the process.
Q: Are there any other avenues for establishing criminal liability, since the Inquiry won't establish this?
A: Yes, there are and following the Inquiry these will be explored.
Q: Will the Inquiry look specifically at discharging patients from hospital, without testing for Covid, into their own homes not just into care homes?
A: Yes; the Terms of Reference say the Inquiry will look into the discharge of patients under paragraph (1)(b)(iv).
Q: If there will be examples from individual Trusts, will the examples be from Trusts that are particularly bad?
A: I would imagine so, but the Inquiry should also look at good practice in order to learn for the future
Q: If themes of medical negligence emerge from a large volume of us can that still be investigated as part of the Inquiry?
A: The Inquiry will not make specific findings of negligence but may reach conclusions that lead to the same result
Q: Will the downgrading of COVID as a notifiable disease in March 2020 be included?
A: This is something we will raise with the Inquiry.
Q: Will it look at ongoing issues e.g., access to boosters?
A: Terms of Reference (ToR) has an end date which is the setting up date but depends on how significant events are – we could ask for ToR to be amended. Terms of Reference are not set in stone and can be amended. We could ask the Chair to ask the Minister to amend them if we think something significant needs to be included.
Q: Will the Inquiry look at the previous exercises?
A: Yes, this falls into preparedness. We are not fully happy with the wording but the failure to heed the lessons are a significant part of the preparedness and the Terms of Reference are wide enough to make them within scope.
Q: Is there any other way of getting criminal sanctions?
A: Inquiry does play a role in that very often the evidence that is adduced allows the police to open a criminal investigation.
Q: What's your response to the breaking news about the government withholding "sensitive" information from the inquiry?
A: This has appeared in one news article only so we can't be sure of its accuracy. It is normal for the government to seek legal advice on their disclosure duties but if the government is considering making its own decisions on what to disclose (rather than leaving it to the Chair) this is worrying. We will be monitoring this carefully and may well be making legal arguments about decisions, but it is at present too early to know what the government plan is.
Q: Will the Inquiry be addressing workplace acquired Covid, where employers have not followed government health & safety guidelines?
A: We believe so. The Terms of Reference state that the Inquiry will consider 'the impact of the pandemic on key workers' (paragraph 1(a)(xiii) - your focus on workplace acquired covid may also be covered under 'legislative and regulatory control and enforcement' (paragraph 1(a)(vi).
Q: Will any parts of the Inquiry be televised?
A: We will be asking for all the Inquiry hearings to be televised.
Q: How long should the pen portrait be?
A: Once we have the plan from the Chair about how she proposes to deal with this we will let everyone know and take instructions from all clients on whether the plan is sufficient and discuss with you how to proceed.
Q: Do we yet know if the government will be interrogated for ignoring the pandemic planning exercises carried out in the recent years before Covid? Specifically, there was one that modelled a SARS-Cov type viral pandemic.
A: This will be covered in the preparedness section of the Terms of Reference, which will also look into what policies/exercises were in place for a pandemic.
Q: How are you collecting evidence for hospital deaths from Covid? is this via witness statements? Will the Terms of Reference cover the mental health of those people who have suffered as a result of the way in which their relatives died and surrounding circumstances and any subsequential financial loss e.g., losing jobs, work. Also, will the Terms of Reference cover financial loss from the government's policies of protecting trespassers as against landlords over the pandemic period which also caused substantial losses to many including losing pensions.
A: It is the Inquiry's job to collect evidence but yes, we are inviting witness statements which we will start to compile once the costs position has been confirmed. We are waiting for the list of issues to tell us exactly what will be covered by the Inquiry's Terms of Reference.
Find more information on how to instruct free legal representation, how to join the Covid-19 Bereaved Families for Justice Group, and more.