Let's get it done: a full COVID-19 inquiry

Making the case for an urgent formal public inquiry, Theo Huckle QC, Nick Brown and Frederick Powell discuss its potential form, function and how best to manage the formidable process

I am sure there will come a moment when lessons need to be learned – indeed we are learning them the whole time – but I do not consider at the moment that a full-scale national inquiry is a good use of official time.’

The words of the Prime Minster on 23 June 2020 refusing calls by the Liberal Democrat Leader Ed Davey for a formal inquiry under the Inquiries Act 2005.*

The muted enthusiasm of this government for a formal inquiry is understandable. It is difficult to foresee any time when any government would welcome a forensic examination in public of its possible shortcomings in reacting and responding to this devastating and life-changing pandemic. But the case for having a full public inquiry is overwhelming in both legal and practical terms.

The investigative obligation under Article 2 of the European Convention on Human Rights is fundamental to good government. Tens of thousands of people have died from COVID-19. Many thousands more are likely to die as a consequence of this pandemic. If people may have died because mistakes were made by any public authorities or others, the government needs to know as soon as possible, so that more people do not die unnecessarily. We must not repeat the same mistakes. But it is only if you can identify precisely what went wrong in the first place that you have a fighting chance of putting any mistakes right in the future. That is why you need a full inquiry. The government has limited resources. It needs to know swiftly and accurately where its focus should be for the best response to a likely ‘second wave’ or further ones in future.

Potential scope of the inquiry

There is a whole battery of issues which a public inquiry should address. The following are just examples.

  • International comparisons: Different countries responded to the emerging pandemic in different ways and at different speeds, some with more success than others. There must be lessons to be learned from this international experience, from the timing of lockdowns to the use of test and trace systems, the need for national lockdowns as opposed to local lockdowns, the efficacy of masks and the use of quarantines for people arriving from abroad.
  • Care home deaths: High death rates sustained during the COVID-19 pandemic demonstrate the stark impact of the virus on care home residents and social care workers. The number of patients dying from COVID-19 has varied significantly from care home to care home. There will inevitably be reasons for this. We need to know what those reasons are to prevent any repeat. In particular, we need to know how early decisions to discharge COVID-19 patients from hospital back to care settings were made, and what advice was made available to private operators of those homes.
  • PPE equipment: Personal protective equipment was not always available in hospitals and care homes when it was needed. We need to know why this happened, what can be done about it and whether lives were lost as a result.
  • Ethnic/racial health inequalities: Members of the BAME** communities have fallen seriously ill and died in disproportionate numbers. The medical, social and structural reasons for this must be identified and addressed.
  • Treatment of non-COVID-19 patients: There is mounting evidence that patients suffering from other health conditions have not accessed normal healthcare services during the pandemic. There are the 'new' patients who have not presented, either out of community spirit so as not to burden the NHS in its time of crisis or because of fear of contracting COVID-19 and being more at risk than from the presenting condition (often still undiagnosed of course). However, there are also patients who had already presented for whom diagnostic and treatment services were withdrawn in the early 'panic-mode' reallocation of resources to combatting the pandemic. The death rate from cancer is now expected to rise very significantly. The government built and equipped the Nightingale Hospital in London and similar hospitals in the regions in a matter of days. This was a fantastic achievement, which clearly demonstrates how quickly government can potentially attend to difficult logistics. Yet those hospital facilities appear to have been little used, like many of the private hospitals which the government also requisitioned. There must be a better strategy to allocate and utilise all of our available healthcare resources, in case of a second and following COVID-19 'waves', and to be ready for a similar pandemic in future.
  • Pandemic planning: notwithstanding the scandal, well aired in the media throughout this health crisis, of the failure to respond properly to the warnings in the 2016-17 Cygnus Report and fully implement its recommendations, for years there has in fact been some long-term planning for a pandemic both nationally and locally. This has been the responsibility of the public sector. Inevitably these plans for responding to a pandemic were relatively untested. Some aspects have worked better or been utilised more than others. In many instances, the government has turned to the private sector, awarding significant contracts without competitive tenders, rather than relying on the existing public sector framework for managing a pandemic. We will inevitably have to revisit Cygnus in the light of lessons learned during the current crisis and plan for future pandemics. We need to identify what they key constituent elements of any such future plans should be.
  • Mental health implications: The consequences of the pandemic for the nation’s mental health are unknown. But the early indications are that they will be significant and it far from clear our mental health services are prepared.

In short, the need for and duty to hold a wide-ranging and independent public inquiry is not in doubt. We take the view that it needs to start urgently. The real challenge is how to manage the process, when the pandemic has had such a far-reaching effect on different aspects of so many people’s lives.

What form might the inquiry take? 

To be a success, a full public inquiry must gain public confidence generally and also give a voice to the individual victims of this pandemic, the bereaved and those who will suffer long-term ill-health as a result of contracting COVID-19. But any inquiry must also be fair to those who have been charged with making critical decisions as well as any individual or organisation which may be affected by the findings or recommendations which the inquiry makes. At the same, the inquiry must be able to work swiftly and produce clear findings and relevant recommendations. We do not need another Bloody Sunday Inquiry producing its report in 10 years’ time.

In these circumstances, the government could do worse than turn to the model which the Independent Inquiry into Child Sexual Abuse (IICSA) offers.

While IICSA will have its critics, IICSA has had to find a way to produce meaningful results within a reasonable period of time when the potential scope of the inquiry which it was charged to undertake was limitless. The approach which IICSA has adopted is to identify key themes, invite expressions of interest from potentially interested parties, identify the relevant interested parties and then run a series of parallel investigations culminating in relatively short hearings. Different counsel to the inquiry are responsible for different strands of IICSA’s overall investigation. The Interested Persons in each strand change. As the hearings take place in one strand, other strands are being prepared. Some strands have been very fact specific, such as the Nottinghamshire Council’s Investigation where IICSA is investigating the extent to which there were any institutional failures to protect children in the care of Nottingham City and Nottinghamshire Councils from sexual abuse and exploitation. Other strands are much more generic. They include Accountability and Reparations, Child Sexual Exploitation by Organised Networks and Effective Leadership of Child Protection.

The choice of the Chair of the Inquiry into the COVID-19 pandemic and the other Inquiry panel members will clearly be crucial. While the Inquiry would doubtless benefit from the forensic skills of a senior judicial figure, it is also likely to need the insights of, among others, a former senior civil servant and a suitably independent expert in global public health, if it is to maintain public confidence in its findings and recommendations.

Where do we go from here?

The Inquiry Panel needs to be appointed now and given an appropriately wide remit. Its task is formidable. If its findings and recommendations are going to have any meaningful impact over the next few years, there is no excuse for delay. Once appointed, the Inquiry Panel will want to establish its secretariat and identify and prioritise the various strands of the Inquiry. The first priority must be to consider what has happened to date and to identify immediate lessons that need to be learned and measures implemented to put us in the best possible state to meet future COVID-19 'waves' and minimise the fallout from this pandemic. A more detailed appraisal of everything that went wrong and what we must do to guard against future pandemics can wait and will, indeed, be better informed by the full experience of dealing with the present crisis.

The Inquiry will also want to give careful thought to procedures and consider what has worked well and less well in other recent inquiries.

Proper representation of individual interests

This is, in our view, very important and must not be overlooked. In the current Grenfell Inquiry, only counsel to the inquiry has been permitted to ask any questions of any witnesses. The contrast with the recent Hillsborough Inquests, where every interested person had the right to ask relevant questions, because the proceedings were inquests, is marked. It is difficult to argue with the victims of the Grenfell fire who have become disillusioned with the whole Inquiry process, because their representatives are not permitted to ask the precise questions which they want asked of key witnesses. However good counsel to the inquiry may be, they can never satisfactorily be the voice of an interested party. They wear too many hats and they do not have sufficient understanding of any particular interested party’s perspective. As the recent Hillsborough Inquests demonstrated, there is a simple answer to the problem, which keeps the proceedings manageable: the time allotted for each individual witness may be limited, but it can and needs to be divided up appropriately between counsel to the inquiry and each of the relevant interested persons.

Conclusions

No inquiry will be perfect. But the first crucial step is to get started. The government needs to announce and set up a full public injury now to minimise the chances of more lives being needlessly lost. With a high quality Inquiry team in place, led by the Inquiry Chair, the optimal timetabling and staging of facets of the inquiry can safely be left to them, driven always by the public interest.

* At Prime Minister’s Questions on 15 July 2020, the Prime Minister promised an 'independent inquiry', but it is not clear what form or timescale this would follow.

** Black, Asian and Minority Ethnic; this remains the standard descriptor applied to non-white communities including for statistical purposes, though we appreciate that there is current debate about how well it reflects difference between the separate ethnic groupings included.

This article was first published on 7 August 2020.

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Theo Huckle QC

Theo Huckle QC is a member of the Clinical Negligence and Personal Injury Team at Doughty Street Chambers.

Nick Brown

Nick Brown is a member of the Clinical Negligence and Personal Injury Team at Doughty Street Chambers.

Frederick Powell

Frederick Powell is a member of the Clinical Negligence and Personal Injury Team at Doughty Street Chambers.