Covid Scotland: Calls for answers after England care home discharge policy ruled unlawful

Campaigners have called for answers about the Scottish Government’s care home policies during the pandemic after the discharge of untested patients from hospitals to care homes in England was ruled unlawful.

The High Court found former UK health secretary Matt Hancock’s decision to maintain policies issued in late March and early April 2020 unlawful, as they did not take into account the risk to vulnerable residents from asymptomatic Covid transmission, which had already been raised by chief scientific adviser Sir Patrick Vallance.

More than 3,000 patients were moved from hospitals to care homes in Scotland in the first three months of the Covid pandemic, without being tested for the disease.

Former health secretary Jeane Freeman later said the moving of untested patients was a “mistake”.

Aamer Anwar, lawyer for the Scottish branch of campaign group Covid-19 Bereaved Families, said following the High Court decision he would push for an update into the ongoing Crown Office and Procurator Fiscal Service (COPFS) investigation of care home deaths from the virus in care homes in Scotland.

Mr Anwar said he would seek a meeting with the Lord Advocate, Dorothy Bain QC, “to advise the families we represent why her inquiry into deaths in care homes is taking so long, and whether charges of corporate homicide will now follow”.

He said his clients had met with Lady Poole, who was selected to head a public inquiry into Scotland’s handling of the pandemic.

Picture: Sanja Radin via Getty Images

“The relatives left the meeting feeling disappointed that the Scottish Inquiry might not investigate these deaths as Crown Office and the UK Inquiry will be,” he said.

“In over three months the families feel that very little has happened in Scotland and this is deeply disappointing, whilst it appears that the UK Inquiry is moving apace.”

The Scottish campaign group Care Home Relatives welcomed the High Court decision, but said their members were primarily seeking answers around visiting rights for relatives of those in care homes.

The group considered a legal challenge to the Scottish Government on this, founding member Cathie Russell said, but could not risk being forced to pay costs if they were unsuccessful.

Relatives are waiting for the results of the public inquiry, she said, in the hope it would “shine a light” on the decisions made.

Commenting on the High Court ruling in England, Scottish Labour deputy leader Jackie Baillie said: “The transfer of thousands of untested patients into care homes [in Scotland] was dangerous and scandalous. Based on this ruling, it may well have been unlawful.

“This Scottish Government have long undervalued care and this tragedy is the result. Ministers responsible must be held to account and the lessons of this scandal must be learned.”

Lady Poole has “already met a number of different organisations representing those affected by the pandemic, including bereaved families in January 2022,” the inquiry spokesperson confirmed.

These meetings were described as being “extremely important and informative” and will “help shape the Inquiry’s investigations in the months ahead”.

The spokesperson pledged: “The inquiry is independent of Government and will carry out a fair, open and thorough investigation.”

They explained: “Following Lady Poole’s appointment in December 2021, the main focus has been to get the right people and systems in place to support its work.

“The quality of the inquiry’s investigations and resulting recommendations depends on the inquiry having infrastructure to enable it to do its job.

“Because it is an independent inquiry, those systems have to be set up from scratch.”

The spokesperson continued: “That process is ongoing and additional staff are being appointed to build the inquiry team to a level which reflects of scale of a pandemic which has affected all of the Scottish population.

“In its establishment period, the inquiry’s focus of necessity is building processes which will enable it to function efficiently and deliver its recommendations as quickly as possible.”

A Crown Office spokesperson said: “The Crown notes Mr Anwar’s statement and will await correspondence from his office.”

They added: “The COPFS has established a dedicated team to investigate Covid or presumed-Covid deaths where they fall to be reported.

“The CDIT will work with the relevant agencies to ensure that all necessary and appropriate inquiries are made.”