Covid-19: Scottish Government confirms chair and areas of investigation for independent inquiry

On 24 August 2021 the Scottish Government invited views and feedback on the draft aims and principles of an independent public inquiry into the handling of the Covid pandemic. At the time it was announced that the proposed inquiry would be established by the end of 2021 to consider the decisions taken during the course of the pandemic, and also to learn lessons for any future pandemics.

Particular consideration was to be given to the "four harms" of the pandemic:

1. Direct health impacts of Covid-19, including cases and deaths in care homes
2. Other non Covid health impacts
3. Societal impacts, including education
4. Economic impacts

The publication of the document met the Scottish Government commitment to establish a public inquiry within its first 100 days in office following the Scottish election in May 2021. At that stage discussions were underway in order to appoint a judge to chair the inquiry.

On 14 December the Deputy First Minister, John Swinney, confirmed to the Scottish Parliament that the Hon. Lady Poole QC, Senator of the College of Justice of Scotland, is going to chair the inquiry.

Mr Swinney also set out the 12 areas of investigation for the inquiry. Each of these covers a strategic element of the handling of the pandemic to identify lessons to be learned and to make recommendations as soon as practicable.

The 12 areas for consideration involve investigation into the strategic elements of the handling of the pandemic relating to;

1. Pandemic planning and exercises carried out by the Scottish Government
2. The decision to lockdown and to apply other restrictions
3. The delivery of a system of testing, outbreak management and self-isolation
4. The design and delivery of a vaccination strategy
5. The supply, distribution and use of personal protective equipment
6. The requirement for shielding and associated assistance programmes, provided or supported by public agencies
7. 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
8. The provision of healthcare services, including the management and support of staff
9. The delivery of end of life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions)
10. Welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported or public agencies
11. The delivery of education and certification
12. Financial support and guidance given to businesses and the self-employed, including in relation to identification of key workers, by public agencies.

The period covered by the inquiry will be from 1 January 2020 to 31 December 2022. Clearly the recommendations are going to be some time away given the period to be considered by the inquiry.

Interestingly, John Swinney also stated "we are committed to working with the UK Government to develop the approach to the UK wide inquiry and expect the chair of the Scottish public inquiry to coordinate with the chair of the UK-wide inquiry".

The Prime Minister, Boris Johnson, advised on 15 December that the chairperson for the UK wide inquiry is to be the Rt. Hon Baroness Heather Hallett DBE. Additional panel members are to be appointed in the new year to provide the full range of expertise required. The Prime Minister will consult with Baroness Hallett and the devolved Parliaments on the terms of reference for the UK inquiry. It is anticipated that the inquiry will begin in spring 2022.

To date, there have not been any Scottish claims litigated in respect of Covid, although a number of claims have been intimated. It is understood that on a pro rata basis there are more intimated claims in Scotland than England.

One other difference between the two countries is that in Scotland a dedicated team, the Covid-19 Deaths Investigation Team (CDIT), is investigating all Covid deaths with a particular focus on deaths in care homes, hospitals and those potentially arising through the individual's employment.