*/
The Prime Minister has agreed to an inquiry into the government’s response to the COVID-19 pandemic. However, he has not committed to an inquiry under the Inquiries Act 2005 (which may be established where it appears to a minister that ‘particular events have caused, or are capable of causing, public concern’). He has rejected calls to establish an inquiry immediately. That needs to happen so that lessons are rapidly learned, public trust is re-established and lives are saved.
This article sets out potential themes that an inquiry may consider in relation to COVID-19 and care homes.
On 29 July 2020, the House of Commons Public Accounts Committee published its hard-hitting report Readying the NHS and social care for the COVID-19 peak which described the government's approach as ‘slow, inconsistent and, at times, negligent’ and increases pressure for the launch of an urgent statutory inquiry (read more here).
Although several Parliamentary committees have launched their own inquiries, they are all constrained by the mandate of their particular committee, they have few resources including staff to appropriately consider very considerable disclosure, they lack input from those most affected and are a political, rather than a judicial, process.
A statutory inquiry would examine the UK government’s response, but its mandate must extend beyond Westminster. It should include decisions made by the devolved governments, NHS bodies at the national and local levels, care inspectorates and public health bodies in all four nations, advisory bodies such as SAGE, local authorities and the private sector including care providers, supermarkets and equipment suppliers.
To gain public trust, a deliberative democratic process such as a citizens’ assembly or jury could make recommendations to the minister on the matters to which the inquiry relates in advance of the formal terms of reference being published. This would enable participatory decision-making that includes the most marginalised people and increase public trust in the inquiry process.
The extent to which the UK complied with its obligations under Articles 2 and 3 of the European Convention on Human Rights should be examined. These provisions establish duties to take proactive steps to protect life and prevent ill-treatment. Further obligations exist under the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the UK in 2009. Article 11 of the CRPD seeks to ensure disability-inclusive emergency planning including in preparedness for natural disasters such as epidemics. Also of relevance is the Sendai Framework for Disaster Risk Reduction 2015-2030 which was adopted by all UN member states. Under the Framework, disaster risk reduction policies and practices must be disability-inclusive and data must be disaggregated by, among other factors, disability.
Older and disabled people face a dual COVID-19 risk. First, those in congregate care are at increased of infection. Second, they are a risk of a worse outcome owing to age and comorbidities. Disabled people have a higher prevalence of diabetes, obesity and cardiovascular disease – all of which are COVID-19 risk factors.
These risks led Michelle Bachelet, the UN High Commissioner for Human Rights to warn in mid-March that the virus ‘risks rampaging through such institutions’ extremely vulnerable populations’. In several countries, a third to half of COVID-19 deaths have been in care homes.
Social care in the UK is fragmented and has faced years of under-investment. Care is often provided by agency staff working in multiple locations on minimum wage zero hours contracts. In England, there are around 15,500 residential and nursing homes providing support for older and disabled people, with an estimated 457,000 beds. It was reported in early July that over 30,000 excess deaths in care homes, two thirds of which are directly from COVID-19.
Clearly, things have gone badly wrong in the UK: the proportion of care home residents who have died in the UK is a third higher than in Ireland and 13 times greater than Germany despite Germany having a care home population twice as large. Deaths are still occurring, there is a prospect of a ‘second wave’ and no independent body has oversight of what has happened. These are reasons why an inquiry should be established rapidly. Lessons need to be learned and shared to save life.
Understanding why the UK has done so badly must involve those most affected. Any inquiry needs to have the resources to do justice to what will inevitably be a complex task. The inquiry will have to establish what was known, and should have been known, by the government and other stakeholders in preparedness for an epidemic such as COVID-19. It will have to understand the decisions made at various levels, week by week, as the pandemic progressed. It will have to comment on the quality of decision-making and communication to the sector and to the public and make recommendations.
Key questions for the care home strand of an inquiry are likely to include the following.
It is hoped that an inquiry will usefully contribute to the wider debate about social care reforms in this country and elsewhere, in particular a shift from institutional care to the provision of support in the community. Michelle Bachelet has observed that, ‘we simply cannot return to where we were just a few months ago, before COVID-19’.
Published on 30 July 2020.
The Prime Minister has agreed to an inquiry into the government’s response to the COVID-19 pandemic. However, he has not committed to an inquiry under the Inquiries Act 2005 (which may be established where it appears to a minister that ‘particular events have caused, or are capable of causing, public concern’). He has rejected calls to establish an inquiry immediately. That needs to happen so that lessons are rapidly learned, public trust is re-established and lives are saved.
This article sets out potential themes that an inquiry may consider in relation to COVID-19 and care homes.
On 29 July 2020, the House of Commons Public Accounts Committee published its hard-hitting report Readying the NHS and social care for the COVID-19 peak which described the government's approach as ‘slow, inconsistent and, at times, negligent’ and increases pressure for the launch of an urgent statutory inquiry (read more here).
Although several Parliamentary committees have launched their own inquiries, they are all constrained by the mandate of their particular committee, they have few resources including staff to appropriately consider very considerable disclosure, they lack input from those most affected and are a political, rather than a judicial, process.
A statutory inquiry would examine the UK government’s response, but its mandate must extend beyond Westminster. It should include decisions made by the devolved governments, NHS bodies at the national and local levels, care inspectorates and public health bodies in all four nations, advisory bodies such as SAGE, local authorities and the private sector including care providers, supermarkets and equipment suppliers.
To gain public trust, a deliberative democratic process such as a citizens’ assembly or jury could make recommendations to the minister on the matters to which the inquiry relates in advance of the formal terms of reference being published. This would enable participatory decision-making that includes the most marginalised people and increase public trust in the inquiry process.
The extent to which the UK complied with its obligations under Articles 2 and 3 of the European Convention on Human Rights should be examined. These provisions establish duties to take proactive steps to protect life and prevent ill-treatment. Further obligations exist under the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the UK in 2009. Article 11 of the CRPD seeks to ensure disability-inclusive emergency planning including in preparedness for natural disasters such as epidemics. Also of relevance is the Sendai Framework for Disaster Risk Reduction 2015-2030 which was adopted by all UN member states. Under the Framework, disaster risk reduction policies and practices must be disability-inclusive and data must be disaggregated by, among other factors, disability.
Older and disabled people face a dual COVID-19 risk. First, those in congregate care are at increased of infection. Second, they are a risk of a worse outcome owing to age and comorbidities. Disabled people have a higher prevalence of diabetes, obesity and cardiovascular disease – all of which are COVID-19 risk factors.
These risks led Michelle Bachelet, the UN High Commissioner for Human Rights to warn in mid-March that the virus ‘risks rampaging through such institutions’ extremely vulnerable populations’. In several countries, a third to half of COVID-19 deaths have been in care homes.
Social care in the UK is fragmented and has faced years of under-investment. Care is often provided by agency staff working in multiple locations on minimum wage zero hours contracts. In England, there are around 15,500 residential and nursing homes providing support for older and disabled people, with an estimated 457,000 beds. It was reported in early July that over 30,000 excess deaths in care homes, two thirds of which are directly from COVID-19.
Clearly, things have gone badly wrong in the UK: the proportion of care home residents who have died in the UK is a third higher than in Ireland and 13 times greater than Germany despite Germany having a care home population twice as large. Deaths are still occurring, there is a prospect of a ‘second wave’ and no independent body has oversight of what has happened. These are reasons why an inquiry should be established rapidly. Lessons need to be learned and shared to save life.
Understanding why the UK has done so badly must involve those most affected. Any inquiry needs to have the resources to do justice to what will inevitably be a complex task. The inquiry will have to establish what was known, and should have been known, by the government and other stakeholders in preparedness for an epidemic such as COVID-19. It will have to understand the decisions made at various levels, week by week, as the pandemic progressed. It will have to comment on the quality of decision-making and communication to the sector and to the public and make recommendations.
Key questions for the care home strand of an inquiry are likely to include the following.
It is hoped that an inquiry will usefully contribute to the wider debate about social care reforms in this country and elsewhere, in particular a shift from institutional care to the provision of support in the community. Michelle Bachelet has observed that, ‘we simply cannot return to where we were just a few months ago, before COVID-19’.
Published on 30 July 2020.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
On the 50th anniversary of the pub bombings, even now it is still unresolved. Chris Mullin, the journalist and former MP who led the campaign leading to the release of the Birmingham Six, looks back at events
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
One year on and the Court of Appeal fails to quash convictions after receiving evidence of racism in the jury room, and there are still no revisions to the Equal Treatment Bench Book , says Keir Monteith KC
A cultural life and times