At least 1,300 elderly hospital patients were sent to care homes without being tested for Covid-19 at the start of the pandemic, a decision the First Minister and Ms Freeman have both admitted was a “mistake”.
With the announcement of a public inquiry into the handling of the coronavirus pandemic, a lawyer representing some families whose relatives died in care homes has said it is “entirely feasible” the pair could be charged over their role.
Solicitor Advocate Professor Peter Watson expressed concern over an apparent failure to introduce appropriate protections against infection in care homes following the outbreak of Covid-19, with 3,292 deaths in care recorded between March and April 8, 2020.
The Scottish Government has announced a public inquiry that will cover 12 separate areas, including pre-pandemic planning, the decision to enter lockdown, the supply and distribution of personal protective equipment (PPE) and how coronavirus was dealt with within care homes.
In Holyrood on Tuesday, Deputy First Minister John Swinney said Lady Poole, a senator of the College of Justice of Scotland, is to chair the inquiry into the handling of the pandemic.
Responding to the news, Prof Watson of PBW Law said: “On behalf of the families who lost loved ones in care homes as a result of the Covid-19 pandemic, we welcome the announcement that there will be an inquiry led by Lady Poole.
“The crucial aspect of this inquiry is the fact that the Lord Advocate has the power to determine if any crimes have been committed.
“The instruction to transfer patients from hospitals back into care homes without any risk assessment, testing, or understanding of the consequences will be an area of particular concern to bereaved families.
“The First Minister and former Cabinet secretary for health have previously admitted that mistakes were made. It is entirely feasible that criminal charges may be brought.
“We have reported our concerns in the past and will continue to press the Crown for answers.”
Prof Watson has previously been involved in the inquiry into the death of rally driver Colin McRae, the Piper Alpha oil disaster, and represented the families of 16 pupils in the Dunblane Primary School massacre.
Scottish Conservative social care spokesman Craig Hoy said: "Critical errors made by SNP ministers at the height of the pandemic meant our care homes bore the brunt of the crisis.
"Thousands of relatives are continuing to grieve the loss of a loved one who died in a care facility and my thoughts are with them."
Mr Hoy added: "Ministers must guarantee they will be totally open and transparent with the public inquiry announced this week. They must co-operate fully with the probe at all times."
Scottish Labour health spokeswoman Jackie Baillie said: "The treatment of care home residents over the last two years is a scar on our pandemic response.
"Care home residents were exposed to needless risk, while being separated from their loved ones for months on end. And patients were transferred from hospital to care homes without any testing.
"Staff were all but abandoned, forced to put their lives on the line for weeks waiting for proper PPE.
"The public inquiry must get to the bottom of these catastrophic failures and provide the answers and accountability we so badly need."
Scot Liberal Democrat leader Alex Cole-Hamilton said Ms Sturgeon, Ms Freeman and her successor in the health secretary role, Humza Yousaf, must be prepared to give evidence to the Covid inquiry.
"I hope that Lady Poole's inquiry will leave no stone unturned and that she will be able to provide a degree of closure for the families because they deserve to know how ministerial decisions caused the virus to enter care homes,” he said.