Coronavirus was listed as a notifiable disease in the UK on 5 March 2020 and restrictions were imposed on individuals’ movements and work on 17 March 2020. By this point in time Italy, Switzerland and Luxembourg were amongst the countries which had shut their doors and gone to lockdown. We are proud of our medical and scientific community but why was their advice out of step and should the government have followed that advice?
In the five weeks that have passed since the introduction of the UK’s public health restrictions, government competence and institutional responses have come into question multiple times every day. We still had national sports fixtures on going whilst other countries were not allowing people to move outside of their homes. In the UK the Government were speaking about herd immunity which means little more than allowing a controlled level of infection to occur within the community in order to achieve a resilience within the population to the Coronavirus. This advice mean that the Government accepted that some people who need not have died would have to die in order to achieve an acceptable level of immunity within the population. Should that advice have been given at that time when facing a new threat with a disease that was not understood.
Now we know that more people from the BAME community succumb and die from this virus, when did the Government and its advisors know about this disproportionate effect on a section of the community? But does this not emphasise that far too little was known at this earliest stage to make decisions that would infect people whilst other countries were locking down?
A public Inquiry now seems an inevitability despite the government holding a sound majority in the House of Commons; voices calling for a full inquiry include prominent former ministers and members of the House of Lords.
The questions for those (limited numbers of people) interested in public inquiries are what will be the focus of any inquiry? Will any inquiry be of sufficient scale and breadth to properly ascertain whether the UK’s response to coronavirus was adequate?
At Milner’s solicitors, we have considerable experience of working on public Inquiries with Sam Stein QC and together we know that getting an Inquiry to focus on the right questions at the beginning is vital.
For those most likely to find themselves participants to such an Inquiry, the real questions could well be why didn’t the government do enough to protect me? Why did I not have the equipment I needed to prevent me from being infected? Or perhaps, why was my business closed when I provided a key service? Why wouldn’t the government engage with me to supply medical equipment or tests when I was able to manufacture it/them?
The issues to be examined by a public inquiry look, at the moment, numerous but it is uncertain which will ultimately prove so catastrophic that they will fall for close scrutiny. That said, the failure to provide front line NHS workers with sufficient personal protective equipment (“PPE”) seems so unforgivably inadequate that it must form a cornerstone of any future investigation.
This is particularly so when one considers that early evidence from China suggested that the level of viral load a person is exposed to can be determinative of their chances of surviving infection. In short, PPE (which has the effect of minimising exposure and therefore reducing the viral load which a person is subject to) can mean the difference between life and death to those who are dealing with infected people day in, day out.
Many questions arise from the government’s response to date, far too numerous to list here, but some seem so illogical that they are worthy of mention: –
• The apparently dilatory approach to recognising the need for and engaging in the procurement of, sufficient numbers of tests and PPE;
• The decision to recruit retired medics back into the NHS in spite of all data indicating that the older that a person is, the more likely they are to experience a more severe illness from coronavirus;
• The decision to re-allocate medics of a particular discipline to front line care – are they adequately trained, equipped and competent?
• The decision to de-prioritise certain areas of healthcare deemed non-urgent; once statisticians are given a full range of data to analyse, one cannot help but wonder whether the majority of deaths will come from coronavirus itself or from people such as cancer patients who didn’t receive timely care.
• Care homes – were care homes regarded as too difficult a problem to tackle? Were the elderly left to die?
• When did the Government realise that some parts of the community were more vulnerable to infection than others?
Most pertinent for us is the recent announcement that plasma will be taken from people who have recovered from coronavirus and will be administered to unexposed people in a trial to test whether the recovered person’s antibodies might afford immunity.
We proudly represent a number of haemophiliacs and their families in the UK wide Infected Blood Inquiry which is examining the circumstances under which they came to be infected with and exposed to (amongst other things) HIV, Hepatitis C and vCJD through use of blood products administered by the NHS.
One fact to arise from the infected blood scandal is that, to the extent that the plasma required to make blood products is still required to be sourced from donors, it was (until September 2019 at least) sourced from overseas because of the enhanced risk of vCJD from the UK donor panel.
We have not seen the premises of the clinical trials currently being entered into but has the risk of vCJD from UK sourced plasma formed part of the consideration then extremely serious questions must not only be asked but answered.
Whilst a public inquiry may still be some time away, it is inevitable and has the potential to be the widest-ranging inquiry in the UK’s legal history. The great paradox of a public inquiry is that its greatest attraction for politicians tends to be the greatest drawback for those whose experiences it is instituted to investigate – time. Whilst a government will occasionally welcome an inquiry that will kick the can down the road for three, four, five or (in the case of Chilcot) seven years, those most severely affected will want answers much sooner.
Time will show what elements of the government response have been well considered and effective and will also show us which aspects of the response came down to panic and bad planning.
The scope of any public inquiry will be determined by its terms of reference and the Inquiries Act 2005 puts very little restriction on what those terms could include – in fact, the only notable restriction for present purposes is that an Inquiry is unable to determine civil or criminal liability albeit, an Inquiry can make findings of fact which can clearly show such liability.
i. This is intended to be the first in a series of articles on the prospect of a public inquiry into the government’s response to Coronavirus in the UK;
ii. This article was written by Ben Harrison and Sam Stein QC. Ben is Head of Public Law at Milners Solicitors and leads their participation in the Infected Blood Inquiry on behalf of more than 20 clients who are either infected haemophiliacs or their family members; Ben has previously taken a senior role on behalf of institutional clients involved in the Independent Inquiry into Child Sexual Abuse. Sam Stein QC is widely known for his work before the Sexual Abuse Inquiry, the Grenfell Inquiry and the Infected Blood Inquiry.