‘Everyone’s right to life shall be protected by law.’ (Human Rights Act 1998, Schedule 1 Art 2)

Immunological science and the history of plagues tells us that new viruses constantly emerge, and that pandemics arise when most people do not have immunity. Clearly the niceties of jurisprudence do not impact on viral mutations, nor on individuals’ physiological and immunological responses to invading pathogens. Biology happens. That being the case, the COVID-19 pandemic raises profound questions around the ‘reach’ of the law into areas of evolving scientific understanding. What does it mean that life shall be ‘protected by law’ when ‘nature, red in tooth and claw’ is immune from abstract ideas of law and rights?

Any application of notions of justice to the consequences of the pandemic involve detailed consideration of complex areas of science, including ‘unfashionable’ low-status scientific understanding. Nonetheless, certain themes are axiomatic: mechanisms of COVID contagion, testing for COVID, protection against infection and the consequences of (lack of) ventilation.

To state the blindingly obvious, a huge challenge with COVID transmission is that it is invisible. Further, unlike, say, chemical threats, contagious hazard has the capacity to increase exponentially. Linked to this, the factor of asymptomatic (or pre-symptomatic) transmission came from learning from Wuhan early on in the pandemic but was slow to be incorporated into pandemic mitigation. Other challenges in understanding the mechanisms of transmission of COVID and which need to be incorporated in meaningful risk assessment have been: to understand the airborne-element of transmission by ‘aerosols’ or ‘particles’ versus ‘droplets’ where the virus transmits more successfully, comparted to by ‘formites’ on inanimate surface and objects; issues of minimum viral load sufficient to trigger infection in a given individual; and thus how consideration of potential viral load informs mitigation responses.

Healthcare professionals were blindsided in the deadly spring 2020 when tests for COVID were in short supply. Chinese scientists had indicated early on that elderly people were especially vulnerable, and it was well known that viruses could easily get a foothold in vulnerable populations. Yet many older people were discharged from hospital without tests to care homes to make room for expected hospitalisations of COVID patients. Nonetheless, before mid-April 2020, testing was limited to elderly patients already showing symptoms, with catastrophic consequences; and pre-symptomatic and asymptomatic transmission were factors known by SAGE as early as 28 January 2020.

Further, in spring and early summer 2020, testing for COVID was significantly limited. Accurate PCR tests were available, but to be useful testing needed to be carried out quickly, in volume and there were limited laboratory facilities. Even now lateral flow testing (LFT) only works as one part of the hierarchy control identified by the HSE, yet the sensitivity/reliability of LFT in predicting COVID is unknown (between only 58% and 78%). A plank of protection in care homes despite the questionable sensitivity, LFT generates a lot of time and work, a huge disincentive to staff. Therefore, the ability of staff to protect residents is markedly diminished if 90% of the staff are not reaching 75% adherence rates!

‘Barrier’ protection against viral infection by means of personal protective equipment (PPE) also went catastrophically wrong in mid-April 2020. In particular, care homes and domiciliary care was outside the procurement arm of the NHS, but when NHS procurement went into overdrive, the market became devastatingly distorted so care homes/domiciliary care-providers could not get PPE. Care home managers had to rapidly adapt and reconfigure services. Additionally, infection control advice to care home managers was piecemeal and difficult to find, eg in relation to relatively cheap, zoning methods of infection control advocated by pioneering sanitation engineers such as NGO Bushproof whose expertise had come from learning gleaned in pandemic control in developing countries.

In relation to face masks, for the first few months of the pandemic, healthcare professionals and care providers in the community who were not performing ‘aerosol-generating procedures’ were only given surgical masks and plastic aprons rather than the enhanced protection of FFP2, or even higher specification, FF3 respirators. In a virus-rich environment such as a clinic or hospital, surgical masks were probably inadequate; noting that since 2008, HSE deemed surgical masks not to be PPE for airborne pathogens. Due to the multiple uncertainties in susceptibility of individuals and the complexities of viral spread, arguably, the precautionary principle demands use of the best grade mask available.

GP Dr Eilir Hughes and colleagues at #FreshAirNHS have highlighted the need to mitigate airborne transmission of SARS-Cov-2 in healthcare settings by improved ventilation noting learning from Tuberculosis control where it is well-known that ventilation is a highly successful in mitigating airborne transmission. Yet WHO only recently clarified the dangers of airborne particles of COVID and the need to avoid poorly ventilated and crowded indoor settings. Against this background, public health messaging in the UK still does not emphasise the importance of ventilation – despite the BBC picking up on this axiomatic issue of infection mitigation. The emphasis is still on ‘hands’ and ‘face’ with the risk of indoor transmission in unventilated settings still getting comparatively scant consideration in the hierarchy of infection reduction and despite CO₂ monitors potentially acting as a proxy for potential concentration levels of airborne COVID.

Finally, invisibility of certain branches of science and types of scientists may have influenced the handling of the pandemic. It has been argued that orthodoxy and the domination of the discourse of infection control clinicians has systematically excluded the potentially significant contributions particularly of aerosol scientists (chemists and engineers) to renegotiate what Bourdieu has called the ‘rules of the scientific game’ – what counts as evidence, quality and rigour.

Returning to the imperative of achieving justice, on 28 March 2020 The Lancet pointed out that thinking that COVID was ‘unprecedented’ belies the damage wrought by earlier pandemics. Legal protection is derived from what was already known: as Lady Justice Hale said in Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101 §52: ‘The fact that other and graver risks emerged later does not detract from the power of what was already known.’