COVID-19 Public Inquiry: final Terms of Reference

Following a public consultation of the draft Terms of Reference (ToR) for the UK COVID-19 Inquiry (the Inquiry), the Chair, Baroness Hallett, wrote to the Prime Minister setting out a number of proposed changes to ensure that issues of concern raised by the public are explored during the course of the Inquiry.

On 28 June 2022, the final ToR for the Inquiry were published by the government further to the Prime Minister accepting the Chair’s recommendations in full. The final ToR is wide ranging and will lead to a substantial, as well as lengthy, Inquiry.

Here, we provide an overview of the changes that have been incorporated into the final ToR.

Terms of Reference

The Inquiry received over 20,000 responses to its consultation on the draft ToR. Responses ranged from bereaved families to representatives of different industry sectors including tourism, health and social care.

Following a review of the public response, Baroness Hallett recommended that one of the overarching focus points of the ToR should be the consideration of the unequal impact of the pandemic across the UK population. In addition to this change being incorporated, the ToR have been expanded to include:

  • “The impact on children and young people, including health, wellbeing, social care, education and early years provision; and antenatal and postnatal care”;
  • "The impact on the mental health of the population, including but not limited to those who were harmed significantly by the pandemic”; and
  • “Collaboration between central government, devolved administrations, regional and local authorities, and the voluntary and community sector”.

The Chair had also recommended that some of the areas proposed in the draft ToR be revised following consideration of the public response so that they are more explicit.

In respect of workforce testing in the social care sector, the wording of the text has been amended to:

  • “The management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, workforce testing and changes to inspections”.

Following the Chair’s recommendations, the following areas have been included in the ToR:

  • Exploration of care provided during the pandemic “in the home, including by unpaid carers”.
  • “Safeguarding and support for victims of domestic abuse” during the pandemic, especially during periods of lockdown.
  • “The impact on the mental health and wellbeing of the bereaved, including post- bereavement support”.
  • “Initial contact with official healthcare advice services such as 111 and 999”. As set out in the ‘Terms of Reference Consultation Summary Report’, published in May 2022, this follows concerns raised in the consultation about “the capacity of the NHS 111 service to respond to the volume of calls it was receiving, and the suitability of the diagnostic advice given both over the telephone and through online 111 services”. Concerns were also raised by respondents about “the response time for emergency ambulance services, and apparent inconsistencies in the decision-making process as to whether or not ambulance services would admit someone with COVID-19 symptoms to hospital”.

Despite the expansion of the ToR, which no doubt will be of note for healthcare and care settings, it has explicitly been noted that the Inquiry will remain flexible in that it will examine new issues or topics identified during the process of gathering evidence, and no doubt during the course of the Inquiry itself.

The final ToR can be found here. 

Comment

It is apparent from the final ToR that the scope of the Inquiry is unprecedented and is likely to be lengthy. By way of analogy, the Independent Inquiry into Child Sexual Abuse has been running since 2015 and the Grenfell Tower Inquiry since 2017. It seems very likely that the COVID-19 Inquiry will run for many years.

It is noteworthy, that the Lead Counsel to the Inquiry, Hugo Keith QC, has recently appointed 11 Queen’s Counsel to support with the preparation and delivery of the Inquiry’s investigative work and 49 Junior Counsel. The appointment of 60 Counsel, and no doubt numerous solicitor appointments, demonstrates the sheer enormity of this Inquiry.

Due to the breadth of areas to be covered, it is anticipated that the Inquiry will be divided into modules, in a manner similar to the Grenfell Tower Inquiry, and each will be heard across several months, if not years. It is anticipated that some of the modules will be heard at the same time where there is not an overlap. The Inquiry has indicated that where there is a potential overlap with the Scottish COVID-19 Inquiry, it will work as closely as possible with the Scottish Government. In addition, due to the potential length of the Inquiry, it has explicitly stated it will issue interim reports as it progresses to ensure recommendations are identified and acted upon as soon as possible.

Next Steps

The Inquiry will commence its preparatory work, which given the unprecedented nature of the Inquiry and the final ToR, is likely to be substantial. There is then the requirement to determine the core participants, key witnesses, request and review evidence, commission any experts and advisors to give specialist evidence and on a practical basis locate appropriate centers within the UK for the hearings to take place.

It is apparent therefore that it is likely to be some time until any hearings of substance will be held. Given the indication of the areas and issues to be considered, those in healthcare establishments may wish to consider in the intervening period identifying an internal team which would be able to collate relevant documentation, identify witnesses and put on notice an appropriate legal team.

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