Covid Inquiry FAQs – Client Webinar – July 2021
In July 2021, we hosted a 'Live Newsletter Webinar' for our clients as an opportunity to provide them with important updates, and to give them a chance to ask us questions, live. You can see a comprehensive list of the questions asked and our answers below.
Q. Will the Statutory Inquiry hear our evidence on how we have found the complaints process of NHS Foundation Trust?
A. The Inquiry will be looking at general issues and will only examine specific cases insofar as they are necessary to shed light on general issues. It is unlikely that the Inquiry will spend much, if any, time examining the complaints processes of individual hospitals, but if there is evidence of a systemic failure of the complaints system that might be examined.
Q. Will the decision on blanket DNR orders and not qualifying for treatment be scrutinised?
A. The Inquiry will be asked to look into the use of DNR, invoking the end-of-life process and withdrawal of treatment. There seem to have been systemic issues and concerns in this area.
Q. Can the devolved nations have their own Statutory Inquiry?
A. We regrettably have bereaved families instructing us from all 4 nations of the United Kingdom. We have encouraged the formation of subgroups in Wales, Scotland and Northern Ireland for the purpose of looking at devolved matters. The Scottish group has already decided (and we have advised and support) that there should be a UK-wide Inquiry, but also a complementary Scottish Inquiry, which will deal with devolved matters. The UK-wide matters that affect Scotland will be dealt with in the main UK-wide Inquest, and then the devolved matters will be dealt with in the Scottish Inquiry. The Welsh group has also decided to push for a Welsh Inquiry. We're also inviting other human rights Solicitors to assist us in those areas, and 3 firms, one in Scotland, one in Wales and one in Northern Ireland are being instructed as well as Broudie Jackson Canter to assist with the devolved matters. What we're advising and what the families are instructing us is to support a UK-wide Inquiry but also complementary Inquiries in Scotland, Wales and Northern Ireland.
Q. When will the Inquiry report findings? Will there be interim reports?
A. Absolutely. Historically there have been inquiries that have had interim reports. Volume 1 of the Manchester Inquiry reports has just been released and a further 2 reports are set to be released as the Inquiry develops.
Q. If the Chair is appointed by the Secretary of State are they neutral?
A. This cannot be guaranteed but a High Court judge is as near as you can get to neutral.
Q. If criminal acts are discovered by the Inquiry, can separate proceedings take place as a consequence?
A. Yes.The Inquiry brings out all of the evidence and conclusions are reached, and that then informs the other processes.The police and the prosecuting authorities will be watching the Inquiry very closely. The outcome of the Inquiry often has as a matter of law to be considered by the prosecuting authorities. In the Hillsborough Inquiry, the jury concluded that the deceased had been unlawfully killed and following from that there were criminal prosecutions. There were also follow-on civil proceedings where people managed to gain compensation, but they are separate processes.
Q. If all of the preparatory work for the Inquiry was to start now, or in September, at a normal pace would the Inquiry be ready to start hearing evidence by May or is it already too late for that?
A. It is probably too late. However, it depends how the Inquiry decides to deal with things. They might for instance isolate an individual issue as taking priority and put all of their resources into the preparatory work for that issue and then hear evidence on that issue. The problem is the issues tend to overlap.
Q. Why is no law firm willing to take on a Covid-19 case at the moment?
A. If the reference is to Medical Negligence cases, law firms cannot get legal aid for these and of course will take on private payers but if a client can't afford to pay the only option is to apply for legal expenses insurance and the insurers are not taking on such cases. Although, I have heard that some of them are running one or two test cases.
Q. What can be done about those records which have been withheld or missing?
A. Nothing can be done if entries have simply not been made. If a complaint is made about treatment the investigation should take this into account.
Q. Do I need to get hold of my deceased loved one's medical records?
A. You only need to access medical records if you are concerned that the hospital may have done something wrong. However, they may help you learn what happened to your loved one.
Q. Will bereaved families be called to give evidence in the Inquiry?
A. In theory, the Chair has the power to force someone to give evidence. However, as far as the bereaved are concerned, it is unlikely that anyone will have to give evidence. The Chair will likely decide how they will look at particular issues and the evidence of the bereaved families will first of all be considered in the light of whether it can contribute to those issues.
Q. How long do we have to bring a complaint to the hospital and if not happy then take it to the Ombudsman?
A. Normally a complaint needs to be made to the NHS within 12 months, but the NHS can grant an extension for good reason.
Q. Is there any action we can take to force the Prime Minister's hand in opening a Statutory Inquiry immediately?
A. Any publicity can help; if you are a member of the Covid-19 Bereaved Families for Justice Group, please liaise with them as they will be able to advise further around their strategy for publicity.
Q. If the Inquiry makes recommendations are they obligatory or could they be ignored?
A. They're not obligatory unfortunately, and this is a real problem with statutory inquiries. There have been many cases in past inquiries where recommendations have been made and ignored. It is tricky because, of course, recommendations may not always be correct so it is important that there is the freedom to reject a recommendation. However, chairs are recognising increasingly the problem with coming up with well-reasoned recommendations that are then ignored. Both coroners in inquests and chairs of public inquiries are developing devices to deal with this problem, like interim reports.
Q. Is there a clear definition of hospital acquired Covid?
A. Possibly not - when you say it was clearly acquired in Hospital the question is whether the hospital agrees. NHS England defines probable healthcare-associated Covid-19 inpatient infection as patients diagnosed more than 7 days after admission.
Q. Any pitfalls to avoid when talking to the media (so as not to jeopardise any future legal action)?
A. I wouldn't worry about jeopardising any future legal action, I think it's more a question about whether what you say is in accordance with the strategy that the Covid Bereaved Families want to pursue, which is at the moment a strategy of trying to bring the Inquiry forward. Having said that, you have the right to say exactly what you want and to a certain extent to tell us what you want us to say on your behalf.
Q. Are human rights experts involved in this process?
A. All of the legal team specialise in Human Rights law and have done for many years.
Q. Will the Inquiry look into the government guidance and how people interpreted it?
A. We would expect it to look at the guidance and to a limited extent at how it was interpreted.
Q. Will the Terms of Reference include the frailty score used in hospitals during the pandemic?
A. The Terms of Reference will be set by the Secretary of State/Prime Minister when they set the Inquiry up. The frailty scores are likely to emerge as part of the evidence to be examined within the overall context of hospital care.
Q. Would audio recording with hospitals be used as evidence?
A. Audio recordings can be admissible as evidence if relevant.
Q. Will there be any missing evidence now that Matt Hancock has had to step down?
A. There shouldn't be, but government ministers have been using a phone app which deletes messages so there may well be. Only once an Inquiry is formally set up is there a prohibition on destruction of evidence.
Q. Do I need to make a personal complaint to the hospital where my loved one caught it? Or do I leave that up to the solicitors?
A. We are not dealing with individual cases or complaints on behalf of clients - the Inquiry will be looking at general issues rather than specific cases although it will need to look at some (not all) specific cases in order to establish generalities.
Q. Is the CQC investigating into hospitals to see if they covered up positive Covid tests when they were discharged into care homes?
A. Not to our knowledge but they could be conducting investigations without making this public.
Q. Covid-19 is not on the death certificate, will I still be able to participate in the Inquiry?
A. The Chair of the Inquiry ultimately decides who will and who won’t be allowed to be a core participant. If you aren't allowed to be a core participant, you won’t be allowed direct access to the disclosed paperwork but as the proceedings are all or almost all going to be public, we can still update you.
Q. Why do we need the death certificate?
A. To ensure that Covid-19 is listed and to see what other factors are listed and where Covid 19 appears on the list of causes.
You can find more information on how to instruct free legal representation, how to join the Covid-19 Bereaved Families for Justice Group, and more.