COVID-19 Public Inquiry: draft Terms of Reference

The UK Government last week published draft Terms of Reference (ToR) for the Public Inquiry into the COVID-19 pandemic. This follows consultation with the Inquiry Chair, Baroness Hallett, and the legal team established by her, led by Lead Counsel to the Inquiry Hugo Keith QC.

The draft ToR set out the areas to be examined, considered and reported upon regarding the preparation and response to the pandemic in England and the devolved nations.

Here, we consider whether the draft ToR, given the breadth of areas covered, provide an indication as to who will be afforded Core Participant status for the purpose of the Inquiry.

The draft Terms of Reference

The draft ToR are wide ranging - covering a range of issues, industries and sectors. Topics include:

• How the NHS and the social care system responded to the pandemic.
• How the government came to make decisions (including those related to lockdowns and shielding).
• The effect of the pandemic on industries, such as travel and hospitality.
• The economic support provided to businesses and members of the public.

The draft ToR, including the full list of proposed areas to be covered during the Inquiry, can be found here. It should be noted that the proposed ToR are a lot wider than those proposed in relation to the Scottish COVID-19 Inquiry last year.

Specifically to the health and care sector, the draft ToR are as follows:

The response of the health and care sector across the UK, including: Preparedness, initial capacity and the ability to increase capacity, and resilience. The management of the pandemic in hospitals, including infection prevention and control, triage, critical care capacity, the discharge of patients, the use of ‘do not attempt cardiopulmonary resuscitation’ (DNACPR) decisions, the approach to palliative care, workforce testing, changes to inspections, and the impact on staff and staffing levels. 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, and changes to inspections. The procurement and distribution of key equipment and supplies, including PPE and ventilators. The development and delivery of therapeutics and vaccines. The consequences of the pandemic on provision for non-COVID related conditions and needs. Provisions for those experiencing long-COVID.

There will now be a period of public consultation on the draft ToR, following which, the ToR will be finalised and thereafter consideration will be given to Core Participants of the Inquiry and requests for disclosure. The consultation will end on 7 April 2022, meaning that the period of consultation is relatively short.

In due course, a timetable will also no doubt be set for the Inquiry, which is likely to be heard in stages according to different sectors and issues referred to in the draft TOR. The government’s response to the pandemic and decision making, as well as that of the health and care sector, will likely be prioritised in the timetable.

However, given the scale of the draft ToR, the exercise of then obtaining and collating relevant documents for disclosure, and the identification and provision of witness statement evidence, we anticipate that the meaningful start of the Inquiry remains many months away. 

Core Participants

One of the tasks that the Chair will be required to undertake is to designate those organisations, and possibly individuals who will be given Core Participant status. In addition, any person or organisation can apply to be a Core Participant with permission of the Chair.

Based on the wide-ranging nature of the draft ToR, the potential number of Core Participants is extensive and therefore it is anticipated that representatives from leaders within the industry, associations or select organisations will be called upon, rather than multiple organisations, for fear of an inquiry lasting years. Further, core participants may be asked to consider sharing legal teams, subject to any conflict of interest, to make certain appropriate representation is in place as well as offer a saving in legal costs. 

Given the reference within the draft ToR to the response by the health and care sector, it is likely some NHS Trusts and care homes will be afforded Core Participant status, to include social services which had some involvement in allocating and transferring residents to care homes. It is still unclear whether there will be some form of selection of NHS Trusts and care homes to cover the range of different types of settings. It would seem to be impracticable for all to be core participants. Similarly, we anticipate that General Practitioners could be included in relation to the provision for non-COVID related conditions and needs, and representatives from the mental health sector are also likely to be considered.

Other sectors and organisations (to include overseeing governmental departments) that could be afforded Core Participant status include: Education – representatives from schools and universities, parents. Travel – representatives from the travel industry and border control. Hospitality – representatives from the hospitality, leisure, sport, retail and cultural industries. Prison service – members of the prison and probation service, contractors which deliver services for prison services, such as transport. Justice system – including courts, police, CPS, barristers and solicitors.

It should be noted that the above list is not exhaustive. The COVID-19 Bereaved Families for Justice will also be afforded Core Participant status, however it has already been made clear that individual cases are unlikely to be considered during the course of the Inquiry.

Comment

The draft ToR which have been published for consultation are extremely wide ranging, and it remains unclear how the Chair and her legal team envisage hearings will be held to inquire into the range of topics being considered. Given the likely number of Core Participants, the Inquiry will be lengthy and detailed. Despite reports (including interim reports) being published in a timely manner, it is likely that any lessons to be learnt or changes in public policy, or indeed legislation, are going to be a long time coming.

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• COVID-19 public inquiry: appointed a core participant? What next?
• COVID-19 public inquiry: the duty of candour