Covid care home deaths will no longer be investigated by prosecutors, Lord Advocate announces

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Residents of care homes who die from Covid-19 will no longer have their deaths investigated by prosecutors in move that reverses a policy first introduced in May 2020.

Deaths among workers in care homes who died after catching Covid-19 in the course of their duties will also no longer be reported to the Crown Office, reducing the level of scrutiny around Covid-19 deaths.

Early in the pandemic following outcry at the high number of deaths in care homes, the Lord Advocate announced care homes and other institutions would be required to report any Covid-19 death, suspected or confirmed, to the procurator fiscal.

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This, the then-law officer James Wolffe KC said, would allow prosecutors to decide whether to take action and charge institutions or staff or open fatal accident inquiries (FAIs). The investigation was named Operation Koper, and has cost the Crown Office and the Scottish Government around £5 million to fund.

Despite this, The Scotsman revealed in October that no decisions had yet been made to refer any deaths to an FAI or for prosecution. This left families “in limbo”, campaigners said, due to the delay in decisions.

This newspaper also revealed the same investigation team is also examining whether the discharge of untested and positive Covid-19 patients into care homes contributed to the deaths of care home residents.

Funding for the Covid Deaths Investigation Team (CDIT) to continue their work was also only guaranteed to continue for the next couple of years, with a further £2.2m announced in June.

In a statement, the Lord Advocate announced care homes were no longer required to report deaths to the Crown Office, effectively barring the vast majority of future Covid-19 deaths in care homes from prosecution or full FAI proceedings.

Care home deaths from Covid will no longer have to be reported to the Crown Office.Care home deaths from Covid will no longer have to be reported to the Crown Office.
Care home deaths from Covid will no longer have to be reported to the Crown Office.

Dorothy Bain KC said: “The situation created by this pandemic is unlike any other in our lifetimes and the scale of the Crown’s investigation is unprecedented. It is without doubt the single largest investigation of deaths in Scottish history.

“Thousands of Scottish families lost a loved one and the impact of that is still sorely felt. I understand that an investigation can be difficult for those involved, but it is a process which will assist with the eventual understanding of these deaths and may prevent further loss of life in the future.

“The reporting guidance to medical practitioners has been kept under continuous review and, following agreement with the chief medical officer, Police Service of Scotland and National Records Scotland, will now be changed.

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"Every single one of these deaths is a tragedy, which requires to be fully considered. I am committed to ensuring that the facts and circumstances surrounding these deaths are thoroughly investigated and answers given to bereaved families.”

The Crown Office also announced the CDIT had received around 5,500 death reports since it was established in May 2020.

Care home deaths from Covid-19 were one of the biggest scandals in the early months of the pandemic, with both the UK and Scottish governments coming under scrutiny over their policies, which saw mass discharges from hospitals into care homes.

Care homes saw huge spikes in deaths in the early months of the pandemic, with hundreds dying every week. In 2022, 857 Covid-19 deaths in care homes were reported by the National Records of Scotland. However, the week-on-week number has been below ten since August. Deaths in hospitals are still averaging around 35 per week.

Any decision that saw these Covid-19 deaths subject to a FAI would add significant numbers to the backlog of cases, some of which finish years after the deaths took place.

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