21 December 2021

Further details of the long-awaited public inquiry into Scotland's handling of the COVID-19 pandemic were finally announced last Tuesday (14 December).

Not only have Scottish Ministers published the terms of reference for the Inquiry (the exact aims and remit), they have also announced that senior judge, the Hon. Lady Poole, has been appointed to chair the Inquiry. Although there is still no start date, the Scottish Inquiry is expected to begin sometime in the new year. The Inquiry will cover events from 1 January 2020 through to the end of 2022 meaning it will focus on decisions currently being made in response to new variants, as well as past decisions.

It is well publicised that a UK-wide public inquiry is expected to be set up alongside the Scottish Inquiry with the Prime Minister having recently announced the appointment of the Rt Hon Baroness Heather Hallett DBE as Chair of the UK Inquiry. The Chairs of each Inquiry will require to liaise with one another to some extent as some organisations will have cross-border interests.

What is a public inquiry?

In simple terms, a public inquiry is a fact-finding exercise convened by Scottish Ministers – it is not set up to apportion blame. The overarching purpose of a public inquiry is to find out what happened, why it happened and to try and prevent recurrence of the same events.

In this particular instance, the Inquiry will scrutinise the decisions and handling of COVID-19 in Scotland and identify lessons to be learned, with a view to being as prepared as possible for any future pandemics.

Independence and procedure

Once a public inquiry has been established by the Scottish Ministers, the inquiry is independent of them. A chair will be appointed to lead the inquiry (in this case Lady Poole) and the Scottish Ministers will have no further say in how the inquiry progresses.

Inquiries will often take several years (running on for far longer than originally anticipated) given the amount of evidence to be ingathered and number of parties involved.

What will the inquiry consider?

The terms of reference announced last week are specific points the Inquiry is expected to address. The terms of reference are drafted by the Scottish Ministers but passed to the Chair of the inquiry who has the power to suggest adjustments.

The terms of reference for the COVID-19 Inquiry have been informed by input from stakeholders such as those bereaved during the course of the pandemic, who we understand had the opportunity to write to the Scottish Government up to the end of September 2021.

The terms of reference cover 12 areas of investigation, namely, to investigate the strategic elements of the handling of the pandemic relating to:

• pandemic planning and exercises carried out by the Scottish Government
• the decision to lockdown and to apply other restrictions
• the delivery of a system of testing, outbreak management and self-isolation
• the design and delivery of a vaccination strategy
• the supply, distribution and use of Personal Protective Equipment
• the requirement for shielding and associated assistance programmes, provided or supported by public agencies
• in care and nursing homes: the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections
• the provision of healthcare services, including the management and support of staff
• the delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions)
• welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies
• the delivery of education and certification
• financial support and guidance given to businesses and the self-employed, including in relation to identification of keyworkers, by public agencies

It is clear from the terms of reference announced that the scope of this inquiry is vast and will likely lead to a significant volume of evidence being required.

Who will be involved in the inquiry?

How an inquiry undertakes its investigation, for example choosing which witnesses should give evidence or which persons should be given ‘core participant’ status, is up to the Chair.

A core participant is an individual or organisation deemed by the Chair to have a significant interest in the public inquiry. The Chair may invite a party to become a core participant or a party may apply to the chair for core participant status.

A core participant, unlike a witness, is able to fully participate in the inquiry i.e. by suggesting lines of questioning to be pursued and delivering opening and closing submissions. With regards to the COVID-19 Inquiry, core participants could include victims of COVID-19, bereaved families, campaigners, MSPs, hospitals or care home providers.

The Chair has the power to order that specific documentary evidence (such as statistical data or correspondence between parties) be produced, as well as witness evidence (whether this be by way of written statement or oral evidence).

It may well be the case that even if a party is not considered to be a core participant, they will still be called upon to assist the Inquiry by giving evidence or producing documentation they hold on the terms of reference.

Impact of inquiry

Though the primary purpose of the COVID-19 inquiry is not to apportion blame, it is important that core participants (and even witnesses) obtain legal advice and/or representation at the earliest opportunity.

Whilst public inquiries are precluded from determining any party’s civil or criminal liability, criminal prosecutions by the Crown in relation to matters previously considered by an inquiry are not uncommon. There will likely be several witnesses called to give evidence in the COVID-19 Inquiry, such as care home staff and those who supplied PPE, and although a feature of a public inquiry is that a witness can refuse to answer a question or provide evidence if this may self-incriminate them, a solicitor is far better placed to anticipate the sorts of issues a witness should seek to avoid.

Of course, it could be that criminal prosecutions following on from this inquiry are unlikely given the emergency responses required for COVID-19. There is however still the potential for reputational damage both personally and professionally given the high level of publicity surrounding the Inquiry.

Advice

We are conscious that there will be individuals and organisations who are concerned about their potential involvement in the COVID-19 inquiry. BTO Solicitors has been involved in every medical Public Inquiry that has taken place in Scotland under the Public Inquiries Act 2005. Such is our reputation in this field that we were even instructed to appear in a complex and lengthy Public Inquiry in a different jurisdiction. We have the knowledge and expertise to answer any questions you might have. Please do not hesitate to contact a member of BTO’s Professional Discipline and Clinical Defence Team.

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939