Transcript of Module 3 Public Hearing on 12 September 2024.

(10.00 am)

Lady Hallett: Mr Scott.

Mr Scott: Good morning, my Lady. May we please call Dr Barry Jones to be sworn.

Dr Barry Jones

DR BARRY JONES (sworn).

Questions From Counsel to the Inquiry

Mr Scott: Good morning, Dr Jones.

Dr Barry Jones: Good morning.

Counsel Inquiry: Could you give your full name, please?

Dr Barry Jones: Dr Barry Jones.

Counsel Inquiry: You have been called today to give evidence as the chair of the Covid-19 Airborne Transmission Alliance. You are also the lead for the British Association for Parenteral and Enteral Nutrition; is that correct?

Dr Barry Jones: Correct.

Counsel Inquiry: Would you give a little bit about your personal background and qualifications, please?

Dr Barry Jones: Yes, I am a retired consultant physician and gastroenterologist with over 40 years’ experience in the NHS and, as you said, I lead for BAPEN. I’m also a member of the British Society of Gastroenterology, which is one of the core groups of the alliance.

Counsel Inquiry: You just call it the alliance there, is that the way that you would refer to it, rather than CATA, which is the way I may normally refer to it?

Dr Barry Jones: As you wish.

Counsel Inquiry: If I can just summarise the history and composition of the alliance in the following way: so formed in August 2020, it was initially constituted as the Aerosol Generating Procedures Alliance?

Dr Barry Jones: Correct.

Counsel Inquiry: Then in September 2021 it renamed to the Covid Airborne Protection Alliance?

Dr Barry Jones: Correct.

Counsel Inquiry: At that time, there were a number of professional groups and unions that were part of CAPA, which represented over 100,000 healthcare workers?

Dr Barry Jones: That is correct.

Counsel Inquiry: Then at around the time that this Inquiry was announced, the name changed from CAPA to CATA, as it currently is; is that correct?

Dr Barry Jones: Yes.

Counsel Inquiry: Presently, the alliance represents over 65,000 healthcare professionals from 12 professional bodies?

Dr Barry Jones: And many individuals, yes.

Counsel Inquiry: I’m just going to start with a couple of basic principles that are going to go to the core of your evidence today, but what I am keen to avoid doing is duplicating any of the scientific evidence that we’ve heard yesterday.

Am I right that you have had a chance to review the report of Professor Beggs –

Dr Barry Jones: Indeed I have.

Counsel Inquiry: – and you listened to the evidence that he gave evidence?

Dr Barry Jones: I did.

Counsel Inquiry: In terms of Professor Beggs’ evidence in relation to the definition of aerosols, routes of transmission of Covid-19, are there any areas about which you disagree with him?

Dr Barry Jones: No.

Lady Hallett: What about the terminology? You were a clinician, so which camp are you in for the terminology?

Dr Barry Jones: Ah, it’s a very good question. No, we absolutely concur with Professor Beggs’ expert opinion, particularly on the definition of aerosols and droplets, which we regard as absolutely critical, indeed the elephant in the room which has followed us throughout this pandemic and, without it, his whole pack of cards collapsed, which I believe is the expression he used yesterday. So we understand what he means by “aerosols”, it’s what we meanly “aerosols”, and ballistic droplets are over 100 microns, not over 5, and this has absolutely critical impacts upon the way CATA has proceeded throughout the last four and a half years.

Mr Scott: Can I just ask, in terms of the difference between, say, a clinical approach and a physics approach, would you maybe categorise it slightly differently and say that it’s not entirely clinicians on one hand but more IPC professionals would draw that distinction?

Dr Barry Jones: I think it’s a very important distinction, because there are thousands of healthcare workers, doctors, nurses, dieticians, speech and language therapists, chest physios, and so on, who all agree that – disagree with the IPC guidance and they seem to have a completely different view based on bad science, bad interpretation of the science, which nevertheless is what we had to follow during the pandemic.

So it would be quite wrong to say that there’s a difference between physicists, engineers and clinical people because most of us actually don’t agree with the clinicians in the IPC group.

Counsel Inquiry: Thank you.

If I can just come to some of the alliances’ core contentions, so that we can understand those and see how they apply to the guidance.

So if we could please have up on screen INQ000273913, it’s at page 135.

This is the witness statement of you on behalf of the alliance, and if we can just look at paragraph 415, and it’s that third line at the end:

“One of our strongest criticisms is the fact that government decision-making – especially in the early stages of the pandemic – failed to incorporate well known sources of expertise, the practice and evidence led decision-making of those and lived experiences of those affected by the disease.”

Then if we just go down to paragraph 416, if that could just be highlighted, thank you. It’s the second line up from the bottom:

“CATA hopes that the Inquiry will investigate why and how, in a country of so much expertise in the area, was the pool of expertise determining the protection of our most crucial nation asset – healthcare – so limited.”

Can you explain what professional expertise you thought was missing and where it was missing from?

Dr Barry Jones: The IPC cell is comprised of experts, apparently, in infection prevention and control. The clue is in the title: they are supposed to prevent and control infection and they are supposed to be able to tell us how to do that. But an awful lot of other official bodies, not just CATA, disagreed with them and made their views known during the pandemic. Right from the very beginning of the pandemic, for example, the Environmental Modelling Group set up by SAGE advised SAGE on 14 April 2020 that the pandemic was likely to be transmitted by the aerosol route, and that the particle size was 100 between aerosols and droplets, not 5, and that was ignored.

Public Health England, the parent body apparently, or perhaps, of this cell, pushed back a number of times in December 2020 and 2021 and said they wanted to broaden the use of respiratory protection and invoke the precautionary principle, and they were ignored somehow.

Counsel Inquiry: Can I just ask you, Dr Jones, just in terms of the expertise, so is it right that, actually, you believe that those who were making the IPC guidance wasn’t sufficiently multidisciplinary, is that the heart of it?

Dr Barry Jones: I think that is absolutely true and Professor Beggs made that point very strongly yesterday and we would absolutely concur with him.

Counsel Inquiry: There’s a separate point that, actually, the IPC cell and those within government, as you describe, weren’t actually listening to those who may have had the expertise or those who were on the ground; is that a separate point?

Dr Barry Jones: I couldn’t make that more strongly, it was a theme throughout the pandemic that all of us who tried to push back were rebuffed and, as it were, managed so that we weren’t a nuisance, and there was an awful lot of expertise directed at the IPC cell and the bodies associated with them, or perhaps superior to them, none of whom seemed to take responsibility for the actions of the IPC cell.

Counsel Inquiry: I’m going to come back to communication bodies and governance later on. I just for the moment want to focus on core contentions. So I’m then going to move to aerosols and the role that aerosols played.

Is it right that the alliance’s initial focus – that can come down now off the screen, thank you – when it was formed in August 2020, was that the official list of designated aerosol-generating procedures – I call them AGPs for short – fell short because it didn’t include all procedures which generate aerosols and, also, the guidance did not address the natural activities such as coughing, sneezing, even breathing, generate significant aerosols which posed a hazard if they weren’t provided sufficient protection?

Dr Barry Jones: I think that’s a very good summary.

Counsel Inquiry: Well, it is yours, Dr Jones.

Dr Barry Jones: There we are.

Counsel Inquiry: So is it the essence that the transmission of SARS-CoV-2, or what I will call Covid-19, occurs importantly via the airborne route, via the inhalation of infectious aerosols released, secondary to normal physiological processes and, realistically, that those who were making the IPC guidance didn’t take a sufficiently cautious or precautionary approach to the risk of aerosols?

Dr Barry Jones: I think it’s absolutely true and we don’t understand why they did that.

Counsel Inquiry: Are you saying that the reason why a precautionary approach should have been taken to whether Covid-19 could be transmitted by aerosols was because, at the start of the pandemic, it simply wasn’t clear whether Covid-19 could be spread by the aerosol route?

Dr Barry Jones: Two answers there. First of all, I don’t agree that it wasn’t clear but let’s assume that it was unclear to them. That comes under the heading of scientific uncertainty, and the precautionary principle is defined as being – it should be invoked when there is scientific uncertainty, you fail safe, as it were, and they didn’t do that.

Counsel Inquiry: The reason why that mattered is because the wrong PPE, as you said, was being advised, because actually the surgical masks, even fluid-resistant ones, don’t prevent the aerosols from reaching the nose and the mouth and therefore initiating the disease and, therefore, healthcare workers weren’t as protected as they could have been?

Dr Barry Jones: This is another consequence of the elephant in the room, yes.

Lady Hallett: Can I just check the dates, Dr Jones. You say you don’t agree it wasn’t clear as the aerosol transmission; you said it was 14 April when SPI modelling group advised SAGE it was likely to be. What date roughly would you say when it became clear that it was aerosol transmission?

Dr Barry Jones: It was defined as aerosol transmitted from the very moment it came into the country, it was an airborne highly sequential infectious disease, as indeed SARS-1 and MERS were, and still are. WHO says that no virus known to man has ever been shown to change its mode of transmission but this one did, under the auspices and direction of the IPC cell.

Mr Scott: I will be going through various documentation, Dr Jones, to allow you the opportunity to say when you think that the evidence was there, but then also, as you said earlier on, even if it wasn’t initially there to those who were in the IPC cell, when you say that actually the evidence was fairly overwhelming and should have been taken into account, so I will take you to that.

I just want to deal firstly with the boundary idea, this 5-micron distinction between –

Dr Barry Jones: Yes.

Counsel Inquiry: – an aerosol and a droplet. That was, let’s call it, the orthodox approach within the IPC community prior to the pandemic. Is that the way that you would describe it?

Dr Barry Jones: I –

Counsel Inquiry: Whether it’s right or wrong, that was the view –

Dr Barry Jones: That is correct, and it still is.

Counsel Inquiry: Is the basis of that approach was because 5-microns was the upper size limit of what could penetrate down into the deepest part of the lungs?

Dr Barry Jones: I think the limit goes up a bit further than that, according to Professor Beggs.

Counsel Inquiry: Yes.

Dr Barry Jones: But it’s roughly that area, yes.

Counsel Inquiry: Yes, so therefore does it follow that if you take the view that anything under 5 microns is an aerosol and that anything over 5 microns is a droplet, and that droplets act ballistically, then that effectively sets you down the path that: a droplet behaves ballistically, so you can protect people by wearing a fluid-resistant mask because it captures all droplets and therefore the infection doesn’t spread; is that essentially the logic?

Dr Barry Jones: Yes, that is correct.

Counsel Inquiry: But if, as it turns out, there are aerosols that are over 5 microns, then effectively the protection isn’t there, because while you’re wearing the fluid-resistant mask aerosols escape around the side of the mask and then can enter around the side of masks of other people who are wearing those? Is that essentially the reason why, if you have this 5-micron border and you call everything above it a droplet, that actually you can then inherently bind yourself to the wrong protection?

Dr Barry Jones: Yes, it’s why it’s not an academic distinction, it’s one of extremely important practical distinction, and all pronunciations on droplets by the IPC guidance cell are null and void as a result of Professor Beggs’ evidence yesterday and our belief.

Counsel Inquiry: In terms of the precautionary principle, my Lady was saying yesterday she’s heard different people address the precautionary principle in a slightly different way. Do you think it necessarily matters whether, when you are looking at creating guidance, you apply the specific precautionary principle or whether you take a precautionary approach to addressing risk?

Dr Barry Jones: I think as far as my members are concerned, we wouldn’t draw a distinction between the two, but this precautionary principle is actually enshrined in health and safety regulations, so there is a legal aspect to this as well. But we would take a practical, precautionary approach, a failsafe approach, if you like.

Counsel Inquiry: So when you’re creating something like IPC guidance, how should that precautionary principle, precautionary approach be applied? How would you describe it?

Dr Barry Jones: Well, if you take the specific example of what happened in mid-March 2020 with the downgrading –

Counsel Inquiry: I don’t necessarily want to deal with the specifics now, just in general when somebody is creating guidance?

Dr Barry Jones: Then they should always err on the side of safety, and not – and listen when they’re told that they’ve got it wrong.

Counsel Inquiry: And you were saying that this originates from health and safety legislation, essentially?

Dr Barry Jones: The precautionary principle is enshrined in UN documents, WHO documents, SAGE documents and in the health and safety regulations. It’s not for interpretation by the chair of the IPC cell, in our opinion, because that’s what she did.

Counsel Inquiry: Is there a minimum evidential threshold that you think should apply when the science is uncertain, such as in the early stages of a pandemic, before any kind of precautionary principle or precautionary approach applies?

Dr Barry Jones: I mean, if you take an academic – if you want an academic evidential threshold, I guess we could probably find one, but in practical terms a healthcare worker can’t apply that, at the coalface looking after a patient. I don’t understand how that can be done.

Counsel Inquiry: So when you are creating guidance, how do you actually then include that precautionary approach into creating that guidance? What should you be doing? What should you be describing? What should you be considering?

Dr Barry Jones: Well, by their own admission, they didn’t know as much as they should have done, and therefore they should have said: well, what is the safest approach we can take which will protect the greatest number of healthcare workers, and by inference, their patients and the public as a whole?

Counsel Inquiry: So it’s if you consider that there could be a risk then you should take steps to mitigate that risk?

Dr Barry Jones: Yes. You know, if you think there’s asbestos in a building, you don’t think about it, you put on a mask.

Counsel Inquiry: Is it also right that actually simply because you may have identified two risks, that if you’re protecting against one it doesn’t necessarily mean that you’re protecting against the other?

Dr Barry Jones: Correct.

Counsel Inquiry: Also, is it right that when you are creating guidance, particularly when you’re dealing with a novel or a new threat, that it’s important that you impose that precautionary approach at an earlier stage?

Dr Barry Jones: I can’t think of a more important time to do so.

Counsel Inquiry: And you also say in your statement that you believe that that should remain in place until such credible scientific evidence exists which shows beyond reasonable doubt that the disease is not transmitted, in this case, via the aerosol route.

Why is it that you say it should remain in place until it is beyond reasonable doubt?

Dr Barry Jones: Because the risk remains until you can be sure that that risk does not pertain, and even the Deputy Chief Medical Officer, Jonathan Van-Tam, said in January in an email that it was airborne until proven otherwise.

Counsel Inquiry: So it’s that certainty that you are looking for when you are – at that point in time dispense with the precautionary approach?

Dr Barry Jones: If you could prove that it was not caused by the airborne route, that’s fine, but actually most of the effort was directed towards trying to find positive evidence of the airborne route whilst not looking for any for the droplet route, and indeed there wasn’t any evidence for the droplet route.

Counsel Inquiry: Well, just dealing at the moment still with these principles about how you actually create guidance, talking here about proving evidence certainty, how easy is it to actually design studies about routes of transmission for specific infectious diseases?

Dr Barry Jones: Are you asking me here about my opinion on what research should be done during a pandemic?

Counsel Inquiry: No, I’m asking you generally: how can you design studies about infectious diseases? Is it an easy thing to do, or do you end up with difficulties about trying to infect people with diseases?

Dr Barry Jones: Right, in that case I’ll ask you how far you want me to go back, because we can go back to Hippocrates. And I’m not joking, the discussions in medical circles have gone on for millennia about how diseases are transmitted, and nearly always when new discoveries have come along they have been ignored.

I can give you the Broad Street pump and cholera, for example, in 1854, and John Snow’s excellent epidemiological work. It was ignored. It was quite clear that cholera was transmitted through water, not through the air.

You say experiments; we have to go on evidence that we have, and particularly in the early stages of a pandemic you haven’t got time to do experiments, you have to look at the evidence you have already and then to use something which my Lady mentioned yesterday, which is common sense.

Counsel Inquiry: Yes, but also in terms of the scientific discovery, you would still be trying to investigate additional sources of evidence; is that right?

Dr Barry Jones: But we already had the evidence when this virus came. It’s the same class of virus as SARS-1 and MERS; they’re both airborne, why should it be any different?

Counsel Inquiry: Again, taking a step away from the specifics, and in case there is a future pandemic where actually there may not be that same level of certainty from an existing virus –

Dr Barry Jones: Yes.

Counsel Inquiry: – how easy is it to generate studies about routes of transmission of a specific infectious diseases? Is it a very easy thing to do or is it actually very difficult?

Dr Barry Jones: I think in the case of a respiratory pathogen, which SARS-CoV-2 is, one has to assume that it is transmitted by the airborne route, like TB and measles and like previous coronavirus epidemics. I am not an expert in designing studies on aerosol – on infectivity, but I – so I’m not sure that I can answer your question fully.

Counsel Inquiry: That’s okay, I’m going to move on to applying a precautionary approach to the evidence.

If I can just take you to document INQ000273913, again. It’s your statement –

Dr Barry Jones: Yep.

Counsel Inquiry: – page 30, paragraph 99.

You say:

“Health and Safety legal principles, critical to the protection of the most vital asset during a pandemic (healthcare professionals) were simply abandoned in favour of Infection Prevention and Control approaches.”

Please can you explain what you mean by that.

Dr Barry Jones: The infection prevention and control specialists who dictated guidance during the pandemic made statements which were not based on evidence. One could even call them dishonest statements. Health and safety incorporates the precautionary principle, to protect workers, and in this case healthcare workers, and although the IPC guidance says that their guidance should be interpreted in the light of health and safety principles, they then ignored them, because they did not take the precautionary principle in the face of scientific uncertainty, which they professed all the time, when in fact there was certainty and they should have noticed it.

Counsel Inquiry: So in terms of the health and safety principles there, that’s for – the read-across for precautionary principle; is that right?

Dr Barry Jones: Yes.

Counsel Inquiry: You said there about a – you used the word “dishonest”. Can you please be very specific about what you mean, or any specific statements that you’re saying may be dishonest?

Dr Barry Jones: It’s not just our IPC cell but the World Health Organisation which initially categorised this virus as airborne, then put out adverts, if you like, Twitter and other media, saying “Covid is not airborne”. We had similar statements time and time again in the IPC guidance. We had a letter from Professors Powis, Doyle and MacEwan to all healthcare workers saying “Covid is not airborne, it’s droplets, and surgical masks are fine”. All this was not based on any evidence whatsoever, and yet they kept telling us in responses to our many letters, “We are following the science, this is the result of the latest scientific review”. That is untrue.

Counsel Inquiry: Do you believe that at the start of the pandemic there was any scope for there to be differing opinions on the scientific principles that applied to the routes of transmission?

Dr Barry Jones: Well, there clearly were differences. We don’t understand why, because, as I’ve just explained, they weren’t based on the science, and yet the government said that it was following the science, but instead it followed bad science, given to them by those who should have known better.

Counsel Inquiry: But are you saying that there may have been differing views on the science, even if you don’t necessarily agree with them – but are you saying that the people making the guidance were not following what they believed was a proper scientific view?

Dr Barry Jones: Well, as Professor Noakes said in her Module 2 evidence and Professor Beggs yesterday, there seemed to be a desire on the part of those putting together the guidance to seek very, very hard for high-level evidence to prove that the airborne route was the dominant one, whilst having no evidence whatsoever to justify the droplet one, then or since. And that disparity is completely wrong, it’s not scientific, it’s a reflection of the culture.

Counsel Inquiry: I just want to be very clear about what criticisms you’re raising. So you’re criticising the scientific approach rather than the fact that people may have been following a scientific approach?

Dr Barry Jones: Yes.

Lady Hallett: To what extent would you say or accept or not accept that if the WHO said it’s – I appreciate you say it changed its mind, but is it fair for experts in this country to say, “Well, if this is what the World Health Organisation says, that ought to be based on the science and therefore we ought to follow it”?

Dr Barry Jones: Well, the WHO didn’t offer any science either, and I see no reason why the excellent scientific community in this country has to automatically follow something so blatantly unscientific no matter where it comes from.

Lady Hallett: Thank you.

Mr Scott: Thank you, that can now come down off the screen, I’m going to come back to a point that my Lady raised about what point in time – and I think it’s going to be very clear from the evidence that you’ve already given – at what point in time do you believe that the precautionary principle or the precautionary approach should have applied to the IPC guidance?

Dr Barry Jones: 13 March 2020.

Counsel Inquiry: Why wouldn’t it have applied any earlier than that?

Dr Barry Jones: Because up until that moment, this infection was classified as airborne, and airborne precautions were being given to healthcare workers to protect themselves at work, and certainly they weren’t.

Counsel Inquiry: Can I just explore that a little bit, because you’re referring there to HCID status; is that right?

Dr Barry Jones: Not directly, and I shouldn’t have to, but I understand your question, so yes.

Counsel Inquiry: Could you please explain what it is you mean in terms of why, before that date, you believe the precautionary principle didn’t need to apply?

Dr Barry Jones: Because as the virus came into the country, it was classified by JCVI as a highly consequential infectious disease, which, as you know, is very strictly defined, and the criteria upon which HCID status is founded were rapidly exceeded as this virus took off and exceeded the capacity of HCID beds and then isolation – the 500 isolation beds in the UK.

But, at the same time as it was given HCID status, because it was a respiratory pathogen, it was given airborne status as well. The two are not necessarily inextricably entwined. In other words, you can have a non-HCID which is airborne, you could have an HCID that’s not airborne, but it just so happened, at the same time as the downgrading in the HCID, as you call it, status occurred, the type of personal protective equipment, particularly respiratory protective equipment, was also downgraded from what was perceived as safe and the best possible protection for staff to something that clearly wasn’t, and no explanation was given.

Counsel Inquiry: If I could just make sure I’m fully understanding this. So in early January, Covid-19 was designated as an HCID, in the way I’ve called it.

Dr Barry Jones: Correct.

Counsel Inquiry: Actually, would you agree that that is probably a good idea – sorry, that is an effective use of a precautionary approach because we weren’t entirely sure about levels of mortality and all the various elements that go into make something an HCID; is that right?

Dr Barry Jones: It was entirely appropriate because SARS-1 and MERS, as I’ve already said, are categorised as airborne HCIDs, to this day.

Counsel Inquiry: But there are only two categories of HCID: there’s airborne and contact, isn’t there?

Dr Barry Jones: Correct.

Counsel Inquiry: So you couldn’t, for example, have a droplet HCID?

Dr Barry Jones: Well, probably could, if it was the IPC cell that was in charge, yes.

Counsel Inquiry: But in terms of the designation, it’s either contact or it’s airborne, so simply because something is designated as an airborne HCID it doesn’t necessarily mean that that is a definition of it transmitting by the aerosol route, as opposed to the droplet route; is that right?

Dr Barry Jones: Well, if it’s an airborne HCID, it’s an airborne HCID, and you have to deploy the adequate protection for what is a far more serious and efficient method of transmission than droplets.

Counsel Inquiry: Yes. Because something has been designated as an airborne HCID, then a standard set of PPE, which includes FFP3 masks, that then applies, doesn’t it?

Dr Barry Jones: Yes.

Counsel Inquiry: That would always have applied for as long as any virus is designated as an airborne HCID?

Dr Barry Jones: Correct.

Counsel Inquiry: So, for example, SARS is still designated as an HCID?

Dr Barry Jones: Yes.

Counsel Inquiry: So …

Dr Barry Jones: Could I just add that the World Health Organisation says that no virus known to man has ever been known to change its route of transmission, so why did this one?

Counsel Inquiry: Yes, but if there is no droplet HCID, then how does it necessarily follow that, because you have downgraded something from an airborne HCID, that you say that it necessarily follows that they were changing the route of transmission of that virus?

Dr Barry Jones: I don’t know why they changed the route of transmission. That’s a question we need to answer.

Counsel Inquiry: So you’re not saying that it necessarily was changed but the fact that the downgrading changed from airborne and then the droplet protection came in is what you’re saying is the reason why you believe that there was a change in the route of transmission?

Dr Barry Jones: Well, they said it’s droplet transmitted, and then later – the first edition of the – or iteration of the guidance that came out after the downgrading from HCID status, said it’s droplet transmitted except for aerosol-generating procedures, and, therefore, only protections which will protect against droplets will be used for all non-AGP situations, which is actually the majority of healthcare provided in a hospital.

Counsel Inquiry: If I can look, please, at notes of a meeting of NERVTAG on 3 February 2020.

This is INQ000119615, and if we can go, please, to page 4, and paragraphs 3.10 and 3.11.

So we have there, “JVT” – that’s Jonathan Van-Tam; is that right?

Dr Barry Jones: Mm-hm.

Counsel Inquiry: “asked is if it is the committee’s view [so that is NERVTAG] that for this novel coronavirus, we do not understand the modes of transmission of this virus, and we do not understand the relative contribution of fine particles aka droplet nuclei, large droplets and contact transmission.”

At 3.11:

“Members commented that, yes, NERVTAG do not have a full understanding of the modes of transmission and [they] are making assumptions based on other respiratory pathogens but it is reasonable for us to infer the nature of transmission of this virus …”

If that is the assessment of a group such as NERVTAG, would you expect to see that uncertainty presented in any guidance that applies?

Dr Barry Jones: Well, first of all, I don’t understand the conclusion of 3.11 because, if you actually look at the modes of transmission similar things, you wouldn’t end up hand washing. So I don’t understand that at all.

Sorry, the other question was?

Counsel Inquiry: That if a group such as NERVTAG –

Dr Barry Jones: Yes.

Counsel Inquiry: – are saying that they do not understand the modes of transmission or fully understand the modes of transmission because it’s put both ways, would you expect that uncertainty to be identified in any guidance that follows?

Dr Barry Jones: Yes.

Lady Hallett: Can you remind me of the date of the meeting?

Mr Scott: This is 3 February, so this is still within the HCID period.

Dr Barry Jones: Yes.

Lady Hallett: Thank you.

Mr Scott: But is it right that, when you are responding to a virus that has the potential to be a pandemic, which I think had already been identified by 3 February, that you may wish to start to plan for what your IPC guidance may be if you take the view that it’s no longer to be classified as an HCID?

Dr Barry Jones: Well, indeed, you’re correct that planning had been taking place but there was only one plan in town and that was the pandemic influenza plan, which had been formulated in the previous decade and which they decided to implement, come what may, which may have been convenient because they didn’t have enough PPE anyway for an airborne route, as we’ve already seen in Module 1, of course, with regard to preparedness.

Counsel Inquiry: Because you then say in your statement that the precautionary principle was removed from IPC guidance in mid-March 2020 without any such evidence. Is that the discussion we were just having in relation to the declassification as HCID?

Dr Barry Jones: They occurred at the same time, which I’m sure was no coincidence.

Counsel Inquiry: Well, the IPC guidance came in on 16 March because when you have declassified as an HCID you then have to have a set of guidance about the IPC and the protection needs to be put in place; is that right?

Dr Barry Jones: They had already that some weeks beforehand, according to the evidence. It wasn’t decided afterwards.

Counsel Inquiry: If we can just look, please, at that guidance, and that’s INQ000325350.

So we can see there that this is, at the top, version 1.0 of the IPC guidance?

Dr Barry Jones: Yes.

Counsel Inquiry: That’s adapted from the pandemic influenza guidance.

Dr Barry Jones: Correct.

Counsel Inquiry: If we can go to page 7, please, paragraph 2.1, and if we can take that top paragraph –

Dr Barry Jones: Yes.

Counsel Inquiry: – and we can see it set out there, this is under the heading of “Routes of transmission” and the opening line is it’s:

“… based on the reasonable assumption that the transmission characteristics of Covid-19 are similar to those of the 2003 SARS CoV outbreak.”

You don’t disagree with that line, I presume?

Dr Barry Jones: Absolutely, I agree with that. But not with the rest.

Counsel Inquiry: Your disagreement there is the transmission is thought to occur mainly through respiratory droplets?

Dr Barry Jones: Well, SARS-1 is transmitted by the airborne route, there are lots of papers to show that and it’s still designated as an airborne HCID, so why would I believe that it’s transmitted by droplets. They never presented any evidence to that effect whatsoever.

Counsel Inquiry: If I could just take you to the line in the middle –

Dr Barry Jones: Sorry, if I could just add to that: of course it’s respiratory droplets generated coughing and sneezing. Here we come back to the elephant in the room and the size of aerosols versus droplets, as described by Professor Beggs yesterday. All of the droplets, so-called, generated by coughing and sneezing that they’re referring to are, in fact, aerosols. So that statement is incorrect.

Counsel Inquiry: So that’s where you disagree with this –

Dr Barry Jones: Absolutely.

Counsel Inquiry: Because, at the bottom line, the bottom four lines:

“During AGPs there is an increased risk of aerosol spread …”

So you would agree that they recognise the concept of aerosols?

Dr Barry Jones: Yes.

Counsel Inquiry: But what you’re saying is that, actually, it was applied in too narrow a set of circumstances and it should have applied generally?

Dr Barry Jones: It’s an example of terribly badly applied science.

Counsel Inquiry: If we can go, please, to page 12. We have at the bottom there “Routes of transmission”, thank you.

Dr Barry Jones: Yes.

Counsel Inquiry: Again, that bottom paragraph:

“Interrupting transmission of Covid-19 requires both droplet and contact precautions …”

Then it’s only:

“… if an [AGP] is being undertaken [that] airborne precautions are required …”

Dr Barry Jones: Yes, and in the paragraph, you’ll notice above, it’s less than 5 microns for aerosols, so again, the elephant in the room.

Counsel Inquiry: This is, as you say, the fundamental flaw, that when applied throughout –

Dr Barry Jones: Yes. It’s completely flawed, it’s completely wrong. All of the guidance was based on this false assumption, which they should have known about, they’re supposed to be experts in infection.

Counsel Inquiry: So you’ve made it clear that you believe that a precautionary approach should have applied from the outset. You’ve also, I believe, made it clear that you thought that the science was sufficiently clear –

Dr Barry Jones: Yes.

Counsel Inquiry: – from the outset of the pandemic –

Dr Barry Jones: Yes.

Counsel Inquiry: – that aerosols should have been protected against?

Dr Barry Jones: Yes.

Counsel Inquiry: Do you say that there came a point in 2020 when, effectively, the scientific base became pretty much unanswerable that aerosols was a viable route of transmission or the primary route of transmission?

Dr Barry Jones: Yes, I can give an answer to that. I can answer partly from Professor Beggs’ evidence yesterday. Of course, he said that by September 2020 there was sufficient evidence, but I would actually put it earlier than that because Professor Noakes, who gave evidence to this Inquiry in Module 2, Professor Andrew Curran from HSE, joint chairs of the newly formed EMG committee, a subsidiary of SAGE, within a week had prepared a document saying the disease was airborne and that aerosols went up to 100 microns, and they presented that to SAGE a week later, a week after the formation of that group on 14 April 2020.

But no one took any notice and there were several more recommendations from that group and, curiously, SAGE reverted to the 5-micron in their June report. So we don’t know what was going on there. But I would argue that left and right hands didn’t quite seem to know what was going on at the time but, to us, it was very clear that the evidence was already there, very, very early on, only weeks after the downgrading from HCID status and downgrading from respiratory protection to droplet protection.

I hope that answers your question.

Counsel Inquiry: Yes, it does.

If I can take you then to some minutes or some notes of the meeting of the IPC cell on 22 December, if I can take you to INQ000398244.

Thank you.

Just because it will become relevant later on, if I could take, please, your attention just in the attendance list. At the end of the second line, Eleri Davies from Public Health Wales and then, on the fourth line, Colin Brown PHE, so those initials are ED and CB, just because they will become relevant later on.

If we can go over, please, to page 2, and down at the bottom we have “LI”, which I believe is Laura Imrie, where this at the time is – there is a discussion about whether the new variant, I believe at that time, was quite prevalent in December 2020, and there is a note there about “wary of recommending FFP3 masks” and “should look for the evidence first”.

Now, I know you believe that the evidence was already there, but then we have a note from CB talking about “difficult … until the evidence is generated”.

If we can just go over the page, please, so you have the second entry which just says:

“… minimal evidence of patient to staff transmission … we should not need to further recommend FFP3 masks …”

If we can just avoid chiming in, just for a minute, please, sorry.

Dr Barry Jones: Sorry, that point, I mean, that was incorrect. There was very good evidence that healthcare workers were becoming extremely ill and dying in Italy and in China and in this country by then.

Counsel Inquiry: But it’s in between the two NRs, kind of the last two, you have an entry of CB, that’s the reason why I pointed to CB.

Dr Barry Jones: Yes.

Counsel Inquiry: “Our understanding of aerosol transmission has changed. A precautionary approach to move to FFP3 masks whilst we are awaiting evidence should be advised.”

So this is a note of a comment from a member of Public Health England. The IPC cell didn’t actually, at that point in time, change the guidance and make a precautionary move to FFP3 masks. What was your understanding of the way that the IPC cell operated? When I say that, as an outsider at the time, did you have any idea of how the IPC cell operated or what it was doing or what it was discussing?

Dr Barry Jones: That’s an important question because we knew what they were – what was coming out of the IPC cell, but we had no idea where it was coming from, who it was coming from, because they never, ever published any minutes. We managed to obtain some with great difficulty through freedom of information and of course we’ve seen some disclosed documents, and we don’t know – we didn’t know at the time who was on that – in that cell.

We knew that Lisa Ritchie was the initial chair, and later Dr Davies, I think, but subsequently we have learned that the composition of that cell was predominantly from NHS England. I think there were 28 people altogether and they – most of them, there were three representatives from Public Health England and I’m not sure they had voting rights, and the terms of reference, which were eventually – only drafted in 2020 and were eventually agreed in 2021 said that the chair had the final decision when there was disagreement. And we see in the minutes several times that “consensus has been reached” –

Counsel Inquiry: If I could just ask you to pause there because there’s a difference between –

Dr Barry Jones: She overruled him, ignored that comment, that’s the point I’m trying to make.

Counsel Inquiry: If I could just scroll down just to actually evidence that point that you’re making. So if we scroll down to there’s lengthy discussions there but, fourth line up from the bottom, where ED – I think we just go a little bit further down on my screen, thank you – ED said – from Public Health Wales, that we were looking at earlier on, second line up from the bottom of the screen at the moment:

“There will be pressure from organisations and bodies for more precautionary measures. The confidence of staff in high intensity units is being lost.”

That’s correct that in December 2020 the confidence of staff in high intensity units is being lost?

Dr Barry Jones: It’s absolutely correct.

Counsel Inquiry: Then the comment is:

“If there is a high-risk pathway, we should take precautionary measures.”

Dr Barry Jones: Correct.

Counsel Inquiry: If we just go over the page, and I think this is the point you were making about consensus, there is that note there:

“LR – We appear to have consensus”, and then that is set out.

You weren’t involved in those meetings, so I’m not going to ask you about how that comment came to be made, but was this what you were talking about where you were saying consensus was noted but actually you don’t believe it was there?

Dr Barry Jones: It’s not the only example, it occurred a year later as well, and when Colin Brown also presented a paper – a proper paper from PHE saying they ought to relax respiratory protection beyond AGPs and the precautionary principles should be invoked, and we don’t understand how this cell could actually overrule the parent body, Public Health England, UKHSA, as it’s become. It’s bizarre, it’s tail wagging dog.

Counsel Inquiry: Thank you, that can come down now. I think you have been very clear, Dr Jones, in your evidence about when you believe that the science was there, when you believe there were changes. If I can just take you to – it’s the technical report that was generated by the chief medical officers following the pandemic and it was intended to give advice to future CMOs.

Dr Barry Jones: Ah, yes.

Counsel Inquiry: If I can show you, it’s INQ000203933. It was published 1 December 2022. If I can take you to page 48, and if you just go back a page, then we can show the heading. So this is “What were the important routes of transmission?”, section 8 of chapter 1. Then it sets out some analysis, but if we just go over the page and it’s those top two paragraphs, please:

“… given the challenges inherent in attempting to determine the relative impacts of different routes of transmission, it was important to retain an open mind as understanding evolved over the course of the pandemic.”

Again, is that precisely what you believe didn’t happen but should have happened?

Dr Barry Jones: It most definitely is and, of course, this was written partly by Professor Cath Noakes, who we have already heard evidence that she was ignored.

Counsel Inquiry: Thank you.

I want to ask you now about lessons learned and lessons that were arising from masks, protection, elements such as that. Again, that document can come down now, please, thank you.

In terms of the masks that you believe should have been advised, so you’re talking about FFP3 masks, do you believe that they were the only masks that should have been applied or do you think that there are different approaches that could have been and should have been taken?

Dr Barry Jones: Well, if I may be so bold as to correct you, that masks were not the only mitigation for an airborne transmitted pathogen. Ventilation is incredibly important, and that was ignored and could have been mentioned way back in March 2020, but wasn’t until November 2020, by Cabinet Office.

Masks – or respirators, to give them their correct term – protective ones like FFP3s, maybe FFP2s, and N95s, across the water in North America, those are the ones which provide the greatest protection, but they’re, again, not the only form of protection. The power-assisted personal respirator hoods provide a very, very useful alternative, and I’d quite like to explore that later if we may. So there’s not just FFP3 masks we’re talking about here, and I’m very pleased to see that this Inquiry building has lots of HEPA filters around, as well as mouse poison in the room where I was waiting.

Counsel Inquiry: In terms of the masks, we might deal with them now that you’ve raised them, Dr Jones. What do you consider, as the representative of somebody – represented many people who were actually healthcare workers on the ground, to use that phrase, what do you consider were the benefit of using personal hoods, powered hoods, as opposed to just FFP3 masks?

Dr Barry Jones: They provide a number of advantages. Although they look quite scary and a bit Star Wars, they provide a clear visor which patients can see through, they can see for communication purposes – very important for speech and language therapists – they protect the eyes, they stop droplets, but above all they stop airborne particles. They are reusable, they don’t have to be disposed of after a few minutes of use. And after a couple of years they pay for themselves. And the best example of their use comes from Southampton University Hospitals, and I can expand on that if you like.

Counsel Inquiry: Please do. Yes, please do.

Dr Barry Jones: Right. Professor Paul Elkington, who was awarded an MBE for this work by the way, worked with his colleagues in Southampton and with the president of BAPEN – my president of BAPEN, Trevor Smith, to design, manufacture and distribute what were called PeRSo hoods. They did this at pace and at scale in the early months of the pandemic and they distributed them not only to intensive care staff but all staff in the hospital, whether clinical or support workers, so porters, cleaners and so on. And they heard that – they had feedback that these were vastly preferable to wearing very horrible FFP3 masks for long periods of time, and they were given a mask for the duration of the pandemic. They were in the top 10% of trusts in this country for the low nosocomial infection rates and staff absenteeism due to Covid. They worked.

Counsel Inquiry: Did they require fit testing?

Dr Barry Jones: They don’t require fit testing either.

And if I can just add that Paul Elkington and his colleagues approached not only the president of the Royal College of Physicians, Professor Goddard, who you may hear from later, but Sir Stephen Powis, who was involved in the communications in April 2020, and Professor Elkington offered not only this expertise but the manufacturing capacity of Jaguar Land Rover, which were prepared to manufacture these at pace and scale, and we never heard any more about it.

Counsel Inquiry: In terms of lessons learned, you believe that actually consideration should be given to using these kind of powered respirator hoods?

Dr Barry Jones: Well, there is no doubt, from listening to those who have been unfortunate enough to have to wear FFP3 masks for a long period of time, and I’ve worn one for five or six hours, it’s not particularly pleasant, but the side effects quoted – apart from being uncomfortable, side effects like acne really aren’t life-threatening.

But there is an alternative and the power respirator hoods I think need exploring. And there are all sorts – as I’ve explained, there are all sorts of advantages. And they do get around the enormous problem of 20%, maybe 40% fit test failure, particularly for those from BAME ethnic backgrounds, with beards, turbans and faces that just don’t fit. And bearing in mind that over 50% of the NHS workforce is female and FFP3 masks are designed on mannequins based on the male face, it’s hardly surprising that there are a lot of fit test failures, but hoods get around that problem, which is a serious logistic problem in fairness.

Counsel Inquiry: This is the final area in relation to IPC aerosol guidance before I move on to something slightly different.

There has been a lot of discussion in your statement in relation to designating certain procedures as AGPs. If there had been sufficient aerosol protection, as you contend that there should have been at an early stage because it was sufficiently clear, would there have been any issue in relation to what was an AGP, what wasn’t an AGP, or actually would the protection have already been in place whatever happened?

Dr Barry Jones: You’re absolutely right, and indeed the English manual for IPC now states that when you go into the room of a patient with suspected or confirmed Covid or a similar respiratory pathogen, you should don respiratory protective equipment. So why would you need to put it on for an AGP? AGP list would indeed be redundant, but it was never fit for purpose in the first place.

Counsel Inquiry: I just want to deal with the benefit of having that protection in place. So were any of the AGPs that were actually on the AGP list potentially life-saving or time critical procedures?

Dr Barry Jones: Yes.

Counsel Inquiry: So if there had been general wearing of FFP3s, would that have had the added benefit that you would have reduced the time it takes to don the IPC in order to carry out an AGP?

Dr Barry Jones: I would say that if we’re talking about – are you talking about CPR now, cardiopulmonary resuscitation?

Counsel Inquiry: Anything that would be time-critical or potentially –

Dr Barry Jones: Okay, well, if we use that as an example, we had the absurd situation of paramedics arriving at a dead – a patient who had died in the street and having to put on full PPE with gowns and gloves and so on, but basically what they needed to put on was an FFP3 and a pair of goggles, and that doesn’t take very long, and shouldn’t have delayed administration of the treatments necessary, chest compression, et cetera. It would have facilitated a much speedier response, and indeed at one time they even had to wait for managers to do a risk assessment, which is absurd.

Counsel Inquiry: Just moving on to a different topic, and this is about communication consultation with healthcare workers under the IPC guidance. We were asking earlier on about whether the IPC guidance should reflect uncertainty in the evidence. Would healthcare workers actually have been able to accept and understand that there wasn’t necessarily scientific certainty in the route of transmission and that they would have just adapted and dealt with the guidance that they were given?

Dr Barry Jones: Healthcare workers by and large are both intelligent and caring people, and their purpose is to look after patients, that’s why we become healthcare workers. If on March 13, 2020 the powers that be that told us it was only droplet and surgical masks were fine and will protect you perfectly well against an airborne thing had actually said “Look, it’s tough, there’s a world shortage of PPE”, we would have understood. We knew there was a world shortage, it’s not something which we were ignorant of. We would have understood that. And if they said, “Well, because it’s airborne, we can’t give you the best possible masks, but we can ask you to open the windows and the rest of the population to take precautions – recognising that it’s airborne and not just droplet – and when we have enough masks, we will provide them to you, as soon as possible, and we’re working day and night to get them for you”, sort of thing.

Now, we know that by the autumn of 2020 they did have enough masks of FFP3 type. CATA and its predecessors wrote repeatedly to prime ministers, secretaries of state, first ministers and so on, Public Health England, NHS England, chief medical officers, to try to get a change. And we even gave them the option of saving face with each new variant that came along which was more transmissible. And each time they came back and said – well, the IPC cell said “We’ve reviewed the evidence and the virus hasn’t changed its mode of transmission so we don’t need to change protection.”

It hadn’t changed its mode of transmission of course, but as they’d got it wrong in the first place, that was the problem. That’s the elephant in the room again.

Counsel Inquiry: You said earlier on in your evidence that you felt that you had been managed out of raising those concerns.

Dr Barry Jones: Yes.

Counsel Inquiry: Do you think that that meant that the voices of those on the ground effectively weren’t being heard by the IPC cell or those creating the guidance?

Dr Barry Jones: Well, they weren’t. If we just look at CPR, the Resuscitation Council UK and the Royal College of Physicians, who should surely be the arbitrators of such guidance, were completely ignored and the cell continued to say that CPR is not an AGP, it causes no more trouble compressing a chest than someone coughing. Well, that’s true too, but they completely missed the point that coughing generates vast amounts of aerosol.

There seemed no way in which healthcare workers which I was associated with during this pandemic could actually get to these people and get a sensible response. They never really ever responded to our scientific criticisms, they just came back and said “Read the guidance, it’s based on the latest science”, which it wasn’t, and that’s it. We were managed, we were pushed away.

Counsel Inquiry: Do you think if there had been some clarification or if there had been some indication that actually there wasn’t complete certainty in the evidential picture regarding aerosols, and that that had been transmitted in the guidance, do you think that that would have generally helped healthcare workers feel safer?

Dr Barry Jones: Well, we would have understood it, and I don’t think it would have resulted in the loss of trust in guidance, in the demoralisation of the healthcare staff. And it’s put very clearly by Dame Donna Kinnair of the RCN in a joint letter to the Prime Minister that there was unequivocal demoralisation and loss of trust in the guidance.

Counsel Inquiry: Just a small topic was you raise in your statement about an inability for there to be local risk assessments to be carried out. Can you please expand upon what you mean about how it’s not possible to carry out local risk assessments within an IPC framework?

Dr Barry Jones: Yes, I’d be glad to.

First of all, there was no guidance ever given by the IPC cell on how to do a risk assessment, certainly not a local one, and nor from HSE either. We asked them and they were silent on the subject. So they gave us no advice on how to do a risk assessment.

If you’re going to do a risk assessment, you have to know what the risk is. The risk was defined as droplet, for which only surgical masks were used. So if you do a local risk assessment, you say, “Well, actually I’m going to be within 1 metre of this patient” – and by the way most healthcare occurs within 1 metre of a patient, because of course no health worker has an arm longer than 1 metre – you’re in the danger zone there and you might reasonably say, “That sounds like high risk, I’d like to use higher grade protection”. But the guidance says no, you can’t. And it doesn’t just say no, you can’t: if you look at the June 2021, it actually says FRSMs must be worn for close-range care within 2 metres.

So where is the flexibility for local risk assessment when you’ve got guidelines like that, which are going to be read by managers and IPC leads in each trust?

And finally, the proof of the pudding is in when people actually tried to do local risk assessments. If I can give you one very good example, at least. We have in this room Dr Nathalie MacDermott PhD, who tried to do this. Now, she was one of the most experienced infectious diseases doctors in this country, with experience of managing epidemics in Africa and Asia. At the beginning of the pandemic, she went to her trust, Leeds, and said “This is an airborne pandemic, I know it is because I’ve worked with them, and I want to have proper protection”, and they said “No, you can’t have it, you’ve got to use an FFP3 mask”. She tried everything she could but she still had to use an FFP3 mask when she was looking after her patients with Covid, and it wasn’t if she got Covid, it was when. And she did. And she is now in a wheelchair. Terrible consequences as a result of a failed local risk assessment.

We have another example from one of our members, Gillian Higgins, who was a –

Counsel Inquiry: If I could just stop you there, there is one thing that you just said, you said “you’ve got to use an FFP3”, I presume you meant to say an FRSM?

Dr Barry Jones: I’m sorry, yes, I beg your pardon, yes.

Mr Scott: Thank you.

My Lady, I was going to move on to a different topic. I wonder if that might be a suitable time for a break. I appreciate it’s a fraction early, I’m content to move on and carry on with this next topic, my Lady, if you prefer.

Lady Hallett: I detect a degree of encouragement there, Mr Scott. Very well, I shall return at 11.20.

(11.03 am)

(A short break)

(11.20 am)

Lady Hallett: Sorry if we’re a little late back, there was some urgent administration we had to attend to.

Mr Scott?

Mr Scott: Thank you, Dr Jones.

Just a couple of points that I’d just like to clarify that are arising from your evidence earlier on. You talked about Lisa Ritchie, and you have been referring to – the way you have been phrasing it, it was her decision-making. It’s right, isn’t it, that Lisa Ritchie was, for a period of time, the head of the IPC cell but this advice in relation to guidance was advice coming from the IPC cell; that’s right, isn’t it?

Dr Barry Jones: As I explained earlier, if you put in guidance the word “must”, it ceases to be guidance and is interpreted by those not always at the coalface, IPC leads and managers, as being mandatory.

Counsel Inquiry: Yes, but they are the ones –

Dr Barry Jones: Guidance should be guidance, not tramlines.

Counsel Inquiry: Yes, but the IPC cell was providing advice for the guidance. They weren’t the ones who were deciding specifically what the wording of that guidance should be.

Dr Barry Jones: Sorry, are you telling me that for a fact or are you asking me to comment?

Counsel Inquiry: I’m asking you to comment on it.

Dr Barry Jones: I don’t agree. They were supposed to be in an advisory capacity and their findings, their advice, was published by PHE, which took no responsibility for them. It seemed to us that the guidance came directly from the IPC cell, and it wasn’t advisory to another body which was then implemented. It should have been, it should have gone up through Public Health England, UKHSA, NHS England, to SAGE, chaired by Chris Whitty, co-chair, but it doesn’t seem to have happened. It just seems to have been signed off somewhere along the line by somebody, we’re still not quite sure who. We’re not quite sure who was in charge, if I can put it that way.

Counsel Inquiry: Precisely, it’s the lack of certainty about who was taking the decisions, rather than necessarily stating that the IPC cell took the decisions, would you agree with that?

Dr Barry Jones: I understand your distinction, yes.

Counsel Inquiry: Also, in terms of Dr Ritchie, Dr Ritchie was the chair for a period, she was part of a cell that took decisions by consensus, so they’re not her individual conclusions that she’d reached, these are the conclusions of the cell; would you accept that?

Dr Barry Jones: No. I don’t agree that it was consensus. I agree – I think that she seemed to have taken an arbitrary view and rejected views of a superior body, Public Health England, as described before the break. I’m not quite sure how that can happen.

Counsel Inquiry: Yes, but you weren’t part of the cell, therefore you’re not certain precisely how conclusions were reached; is that fair?

Dr Barry Jones: Well, none of us can be, except by reading the minutes, which you showed me earlier, and one can only interpret from the minutes that that was the case.

Counsel Inquiry: One other point I want to ask about, the scientific basis and the approach to aerosols. It is not simply the United Kingdom who at the start of the pandemic believed that there was not the primary spread of Covid-19 by aerosol route, is that right? There were other global organisations and other countries who also took that view; is that right?

Dr Barry Jones: Correct.

Counsel Inquiry: My Lady, it may be better to deal with those points with other witnesses rather than through Dr Jones.

Lady Hallett: Thank you. They included the National Centre of Infectious Diseases in the United States, didn’t they?

Dr Barry Jones: Indeed. Their views changed a little bit but they came out very early, as far as I understand it, in favour of airborne transmission and proper respiratory protective equipment, and that situation prevails to the current – to the present day.

Mr Scott: Just returning then to the idea of local risk assessments, NHS England had asked the question to be asked about whether, if hospitals couldn’t decrease the risks based on the hierarchy of controls at any stage during the pandemic, were they not required to risk assess the level of PPE required for their staff, in accordance with their health and safety duties?

Dr Barry Jones: Sorry, I’m not sure, the question is exactly?

Counsel Inquiry: Well –

Dr Barry Jones: Are you asking me about the hierarchy of controls or about risk assessment?

Counsel Inquiry: Well, I think it appears to be that if hospitals had to risk assess the level of PPE for themselves?

Dr Barry Jones: Yes, well, that seems to be an abrogation of the responsibility for those purporting to give guidance. I mean, you can’t say you’ve got to do this and then transfer the responsibility to local people and, as I’ve already explained, can’t do a local risk assessment because the guidance doesn’t tell you how to.

Counsel Inquiry: What would you also say to the suggestion that local trusts, hospitals, organisations, boards, HSCTs could choose to locally designate a procedure as an AGP?

Dr Barry Jones: They could choose – sorry, I missed the last bit?

Counsel Inquiry: That they could choose to locally designate a procedure as an AGP; what do you say to that proposition?

Dr Barry Jones: I’ve never heard of that.

Counsel Inquiry: Do you think it was something that would be possible for local bodies to do, given the national guidance?

Dr Barry Jones: Not if the guidance says “must”, no, and, as I’ve said already, that’s what managers look at. You can’t go to your managers and say “Can I have a secure supply of FFP3 for all the people who are looking after these patients doing this procedure”, if the guidance says the opposite.

Counsel Inquiry: Because if you have IPC guidance, which is setting out standards, is it incumbent upon professional healthcare workers to follow that guidance?

Dr Barry Jones: Professional healthcare workers and their representative bodies took the view that they had a duty of care to their members and imposed guidance and put out their own guidelines, for example the Royal College of Speech and Language Therapy, and my own organisation, BAPEN. But when our members took those to their trusts and those in authority in the trusts, they were often rebuffed, and the guidance which was produced by professional bodies was ignored in favour of the IPC guidance because that seemed to be – to have the imprimatur of government.

Counsel Inquiry: In terms of the wearing of masks and particularly FFP3 masks, do you think that would have had a considerable impact on staff if they had had to wear FFP3 the entire time?

Dr Barry Jones: They wouldn’t have liked it at all but –

Counsel Inquiry: Do you think –

Dr Barry Jones: – then staff didn’t like getting Covid either.

Counsel Inquiry: Which do you think was more important to staff to protect against …

Dr Barry Jones: Well, if it was me, I’d want to wear a mask because I don’t like the idea of Covid, and there’s at least one person in this room who has had it and will have consequences for the rest of her life and, if you ask her, she will say, “I would rather prefer to wear a mask”.

Counsel Inquiry: Do you think that the fact that there was a possibility that healthcare workers may have caught Covid-19 outside of their professional setting has any relevance whatsoever to whether they should have got less protection from Covid-19 in their professional setting?

Dr Barry Jones: That’s a good question. Perhaps I could refer to the study from Ferris et al from Cambridge.

Counsel Inquiry: Well, just in terms of referring to the study, I think it’s more a matter of principle about whether you do think there is any relevance to what might happen outside, in terms of the level of protection that should be offered to healthcare workers?

Lady Hallett: I don’t think you need to pursue that, Mr Scott. I don’t think there’s any relevance.

Dr Barry Jones: I was just going to say –

Mr Scott: Thank you, my Lady.

Dr Barry Jones: – that community prevalence obviously is reflected in hospital prevalence but we know that healthcare workers were at much greater risk than in the community.

Lady Hallett: Exactly.

Mr Scott: Then just in terms of any potential recommendations that should be made, I think you were critical of the lack of transparency that there was from the IPC cell as a whole and the decisions that they reached. Do you consider that, in the event that there is a body in a future pandemic, like the IPC cell, that the minutes of their discussion should be published?

Dr Barry Jones: Yes, I thought that was a standing regulation in government, indeed the King’s Speech mentioned a duty of candour, so I would expect that to happen, yes.

Mr Scott: My Lady, I have no further questions.

Lady Hallett: Thank you very much, Mr Scott.

Dr Jones, there are some questions from Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: Dr Jones, I appear on behalf of the Scottish Covid Bereaved, as instructed by Aamer Anwar & Company, and I’d like to ask you a couple of questions.

I wonder if we could have before us INQ000300310.

This is an email chain, in which you have emailed the AGP panel, and there are a number of emails, but I would just like to deal with the last one of 22 December. It’s fair to say in this email chain you have been expressing in terms increased frustration at the fact that the output from the panel, in terms of advice or guidance, has not been forthcoming. Your email, the top document, if we can have that up, please, of 22 December 2020 …

Lady Hallett: I’ve got it up.

Ms Mitchell: It’s just arrived on our screen, thank you.

This email expresses your continuing concern about the fact that there were delays, and I wonder if I can take you to the bottom of – or, sorry, halfway down that letter, where it says that your group has been “astonished and dismayed at the slowness” of the AGP panel, pressing need for revised advice, and you’ve reminded them of the number of people in hospital and also the number of healthcare workers.

You have posed a question at the end of that letter, and the question is this, in the context of the fact that you were given assurances that the minutes of meetings would be published, which you’ve just spoken about, you also say:

“Why has it taken so long for any output from this panel when other scientific groups seem to be able to respond to the changing situation so much quicker? This failure to reflect the urgency of the matter may be reflected in greater mortality and morbidity which could have been avoided by a more expeditious response.”

My question for you in that regard is: did you ever find out what the cause was of the delay for the output from the AGP panel?

Dr Barry Jones: This is distinct from the UK IPC cell, just to be clear, and this panel was set up in response to BAPEN, I signed the letter to Chris Whitty and to Ruth May, and this was set up at the beginning of May 2020.

By September, we’d not heard from them and, eventually, I got a message from one of their officials saying they’d lost our letter, and then we got one later saying that they were just getting to the final stages and they will publish in about a month’s time, and I got very exasperated before Christmas and wrote this email. As it happens, the question I posed at the end, about greater mortality and morbidity, which could have been avoided, it turns out that it wouldn’t have been avoided because this panel found absolutely no reason to change the list whatsoever, and I can expand on that if you wish.

Ms Mitchell KC: Well, no, I think the Chair already may have enough in that regard, and she’s nodding her assent to that matter. So there was this delay and still to this day this delay remains, at least in your view unexplained?

Dr Barry Jones: I think it’s appalling, the rest of us were working at pace to get things done, it took seven months at the height of the pandemic, as the second wave hit. We got the message – we eventually received this report, not in the first week of January when I was promised it by the chair of this panel on 23 December, say after this email, but in the second week of January, so seven months, which I think is appalling.

Ms Mitchell KC: I wonder if I might briefly then move on to another document and ask you to comment on it.

That is INQ000118447.

This is a response letter from one which you and other colleagues drafted by the chair, Sarah Newton, of the Health and Safety Executive and this document indicates, if I could guide you down, please, to paragraph 3, it says:

“All employers, including those in the NHS, are checked to assess the risks to their workers created by their work activity and to implement appropriate measures to control these risks. In making this assessment, employers are expected to use up to date and relevant guidance.”

Then later in that letter, just at the bottom of the page, it says:

“We will not be undertaking a review of this guidance as this has already been done”, and lists the various bodies that that has been done.

Can I ask you, did this letter satisfy you that the appropriate enforcement action had been taken by HSE and, if not, why not?

Dr Barry Jones: First question: absolutely not. All the correspondence we had from HSE made it clear that as long as trusts, hospitals were following, they called it Public Health England guidance, that was fine by them, so if they were using surgical masks and off sick, that was fine. It didn’t matter that they were the wrong masks, and we’ve regarded the response of the Health and Safety Executive as entirely unsatisfactory throughout the whole pandemic. There may be some good reasons for that, but they didn’t have to take this view. They could have said “Yes, we do have a regulatory responsibility here and we should discharge it and make sure that others do too”. And, as far as we understand it in CATA, the legal aspects of their responsibility and those applying to employers were not suspended by the emergency legislation during Covid, so why were they not continued?

Ms Mitchell: Dr Jones, I’m obliged.

My Lady, I have a third question but I think I’m out of time, so I shall leave it there.

Lady Hallett: Ask it, Ms Mitchell.

Ms Mitchell: Thank you.

If I could have INQ000114429 before the screen.

This is a document in relation to the lag behind of the UK in its approach to PPE and infection control, and I think, in the course of that particular document further down, there is a quote from you about the lack of speed at which we were moving.

My question to you, not necessarily you need to have particular regard to this, but my question to you is: as late as 2021 your organisation considered that Scotland, as well as the rest of the UK, was significantly lacking behind in its approach to PPE infection control.

In your opinion, did the UK ever catch up with the rest of the world, either during the pandemic or after?

Dr Barry Jones: In part. But here it’s very interesting because this virus has generated extraordinary abilities to change its behaviour as it crosses Hadrian’s Wall. The English guidance says that when you enter a room – first of all, it says aerosol transmission is actually rather significant and, when you enter a room with someone with Covid, you should wear respiratory protection, expect that the table of that footnote attached to it says that you must wear an FRSM for routine care and FFP3 for AGPs.

In Scotland, it still refers to respiratory particles in the 5-micron definition and they’ve only got the table there, not the footnote, and it says FRSMs for routine care and FFP3s for AGPs.

We understand that the Scottish NIPC, and that’s their national manual for IPC, is under review at the moment and we’ve seen the prelude to that and it’s still predicated on 5 microns. Have we caught up? I do not think so. I don’t know why not.

Ms Mitchell: My Lady, I’m obliged.

Lady Hallett: Thank you very much, Ms Mitchell. That completes the questions the Inquiry and the core participants have for you, Dr Jones, thank you very much for your help.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: Mr Scott.

Mr Scott: My Lady, I don’t know whether you wish to rise while we transfer witnesses.

Lady Hallett: No.

Mr Scott: Then I shall move aside for my learned friend.

Lady Hallett: Ms Nield.

(Pause)

Ms Nield: I would like to call, please, Mr Brunt.

Mr Richard Brunt

MR RICHARD BRUNT (affirmed).

Questions From Counsel to the Inquiry

Lady Hallett: Sorry if we’ve kept you waiting, Mr Brunt.

The Witness: It’s okay, thank you.

Ms Nield: Could you give your full name, please, Mr Brunt?

Mr Richard Brunt: Yes, it’s Richard Gregory Brunt.

Counsel Inquiry: Mr Brunt, I think you’ve given a witness statement to this Inquiry, dated 17 November 2023. That’s INQ000347822. You’re familiar with that witness statement. I think you have a copy with you.

Mr Richard Brunt: I am, yes.

Counsel Inquiry: On page 99, that bears your signature and the statement of truth.

Mr Richard Brunt: Yes, it’s correct.

Counsel Inquiry: You can confirm, can you, that the contents of that statement are true to the best of your knowledge and belief?

Mr Richard Brunt: Yes, it is.

Counsel Inquiry: Thank you.

Mr Brunt, you’re the director of the engagement and policy division at the Health and Safety Executive; is that right?

Mr Richard Brunt: That’s correct, yes.

Counsel Inquiry: Can you explain, please, what does that role entail?

Mr Richard Brunt: I’m a member of HSE’s executive committee, the division I’m responsible for leads on HSE’s policy issues, engagement with others, communication activities, and so on, across the full range of activities that HSE is responsible for.

Counsel Inquiry: In terms of your background with the Health and Safety Executive, you have also worked as a health and safety inspector; is that right?

Mr Richard Brunt: I have, I have been with the Health and Safety Executive for almost 35 years. I started as an inspector, I’ve worked across the range of policy, operational strategy, and so on, I’m a member of the Institute of Occupational Safety and Health and a chartered registered safety practitioner.

Counsel Inquiry: Thank you.

Can you please set out briefly a summary of the role and the function of the Health and Safety Executive, please?

Mr Richard Brunt: Okay. The Health and Safety Executive is responsible for workplace safety across the range of activities in Britain from major hazards, manufacturing, agriculture, construction. Our primary focus is on worker safety, the safety in the workplace of people at work. Some of the health and safety responsibilities also are there towards protection of members of the public from industrial risks and hazards that are generated by the work of those businesses.

Counsel Inquiry: I think the Health and Safety Executive is also a UK Government agency and it’s sponsored by the Department of Work and Pensions; is that right?

Mr Richard Brunt: That’s correct, yes.

Counsel Inquiry: The Health and Safety Executive was established, I think, by the Health and Safety at Work Act 1974?

Mr Richard Brunt: That’s correct, yes.

Counsel Inquiry: It has a role in enforcing workplace health and safety law, so that’s the 1974 law that we’ve just referred to, and associated regulations; is that right?

Mr Richard Brunt: That’s right, yes, the Health and Safety at Work Act sets the framework and there are a wide range of supporting regulations that help enact some of those provisions.

Counsel Inquiry: This may seem like a question with an obvious answer but, in terms of those regulations which it falls to the Health and Safety Executive to enforce, do the Health and Safety Executive have a role in making or drafting those regulations?

Mr Richard Brunt: We do. HSE has its own policy function that drafts regulations. Some of that legislation will have been generated in the past by European legislation and how we then implement it into UK law.

The legislation is retained legislation, so it’s not devolved to Scotland and Wales, whereas some of the other legislations of relevance in healthcare is a devolved matter. But we are responsible for the interpretation and application of that legislation.

Counsel Inquiry: In terms of when regulations are being drafted, would the Health and Safety Executive have input and advice in terms of the reach of legislation and regulations?

Mr Richard Brunt: Yeah, I mean, with any legislative drafting, we would be responsible for consulting as to the impact of that legislation, through the usual Parliamentary processes, with the range of legal advice as to interpretation and applicability of that legislation. So it is all subject to the usual processes of the Parliament.

Counsel Inquiry: Now, in summary, what powers does the Health and Safety Executive have in enforcing those regulations in the workplace, if they encountered a breach in a particular workplace?

Mr Richard Brunt: Okay. The short summary, the responsibilities for enforcing health and safety law comes from section 20 of the Health and Safety at Work Act, and it gives a full range of enforcement ability from provision of information, provision of advice, the – that can be both verbal and written advice. We have – our inspectors have the power to serve enforcement notices to require improvements where companies and duty holders are in breach of legislation. We have the power to serve prohibition notices for the most serious breaches and, indeed, we have the power to bring legal proceedings and prosecution if that’s the appropriate course of action.

Counsel Inquiry: So in terms of that escalating range of enforcement actions that are open to the Health and Safety Executive, you explained the provision of verbal advice is also regarded by the Health and Safety Executive as enforcement action; is that right?

Mr Richard Brunt: Effectively, if an inspector finds a business to be lacking in some respect, the level of action they take is proportionate to the level of breach they’ve found, and we have ways of working through that. So if somebody is just slightly below the level expected, we may decide verbal advice is sufficient. If it’s a little more serious, we would move up to written advice or written action.

I think it’s relevant when we take – when we commit something to writing, the way HSE is funded, that triggers what we call fee for intervention, so a duty holder has to pay to cover HSE’s costs for having taken that action. Then as that moves up, enforcement notices and, as I say, ultimately, in serious cases, prosecution are all possible. That is the full range of enforcement, if an inspector decides they need a business to take corrective action.

Counsel Inquiry: Thank you.

Now, as to the Health and Safety Executive’s approach to enforcement, you’ve set out in your witness statement that the Health and Safety Executive have designed or developed an enforcement management model to assist inspectors. Could you very briefly please explain what that enforcement model is?

Mr Richard Brunt: Absolutely. As you pointed out, the Health and Safety at Work Act and those powers came into existence some 50 years ago, and throughout that, the inspectors’ application of their powers, as an individual appointed as an inspector is at the discretion of that inspector and what they’ve found.

So, historically, HSE, to make sure we are consistent, proportionate, transparent as a regulator, as indeed regulators are required to be, developed a process that captured the thought process an inspector goes through, and we refer to that as our enforcement management model. So it is a tool that replicates a thought process that inspectors go through and still gives them the discretion to make a final decision about enforcement.

So, very briefly, an inspector visits a premises, they observe the conditions there, they compare them with the expected standards and how far apart the observed conditions are from the standards on site and, if there is a gap, they then assess how big the risk is of that gap, how likely harm is, how serious the harm could be, and all of those factors then play into what we’d refer to as an initial enforcement expectation.

So that’s the point where we’d say most inspectors would come to this point and say “I think I need to take the following action”. We then allow the – the guidance allows the inspector to take the discretionary local factors as to the conditions they’ve found on site, previous advice, the attitude of the company, et cetera, to either escalate that or increase that level of enforcement or, indeed, decrease it if they think that’s appropriate.

Counsel Inquiry: Thank you very much. Now, we’ll come on to talk about the enforcement management model in relation to Covid-19 in healthcare settings in due course, but you mentioned there that the enforcement management model looks at the level of risk and the level of harm, and there’s a categorisation process of different degrees of harm in terms of the consequences of the breach; is that right?

Mr Richard Brunt: There is. We categorise from serious harm –

Counsel Inquiry: I think there was also significant.

Mr Richard Brunt: Significant, thank you, I was just trying to get them in the right order: serious, significant, minor and negligible.

Counsel Inquiry: Thank you.

Mr Richard Brunt: So there’s different levels and we would compare that against sort of known standards.

Counsel Inquiry: As I say, we will come back to that in due course but that’s very helpful.

You also set out that, under the Health and Safety at Work Act there’s a general duty for every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees and that general duty extends to those employers working within the healthcare setting to look after the health, safety and welfare of its healthcare staff.

Now, in healthcare settings, not all those workers who are going to be working in that setting are directly employed, they’re not all employees, some might be agency workers, some might be contractors. In terms of protection of the health and safety of those workers who are not employees, does the Health and Safety Executive have a different approach to those, or do the duties also extend to them?

Mr Richard Brunt: No, those duties extend. The framework of the Health and Safety at Work Act is goal setting, it requires those people that create the risk to manage the risk and it recognises within the section, section 2 refers to employees, section 3 refers to others who may be affected, and we take that as those that are working under an undertaking, be it a business, be it a health trust, a duty holder, that duty extends to protect all of those that are affected by that work activity.

Counsel Inquiry: I think section 3 also is considered to extend to risk to patients who would be in a healthcare setting, but you go on and explain that there is a memorandum of understanding between the healthcare regulators and the Health and Safety Executive in terms of how their respective responsibilities are delineated in that regard; is that correct?

Mr Richard Brunt: That’s correct. As I said, the – some of the healthcare matters are devolved to the nations of the UK, whereas health and safety legislation is retained. Because of that, there are slight differences between England, Scotland and Wales, and I should clarify that HSE works in GB and there is an HSE Northern Ireland that takes care of Northern Ireland, so we have the arrangements between those healthcare enforcement bodies. Their primary focus is generally on patient safety in terms of clinical decisions, treatment, et cetera. Some of the health and safety of patients is also devolved to those other bodies, such as the CQC in England and the equivalents in Scotland.

Counsel Inquiry: So that would be the non-clinical risks, such as slipping, scalding?

Mr Richard Brunt: Absolutely, the non-clinical. The clinical risks would rest with those agencies.

Counsel Inquiry: So the focus of the Health and Safety Executive of course is on workplace health and safety, and you’ve explained that, in relation to healthcare settings during the Covid-19 pandemic, that remained your focus.

You did not have a role as the enforcement body for the coronavirus regulations in the workplace or in healthcare settings; is that right?

Mr Richard Brunt: That’s correct, the coronavirus regulations were made in recognition that the Health and Safety at Work Act itself is work focused and not focused on the more general public health issues of a pandemic. So the coronavirus regulations were made to address some of those difficulties, where we would not be able to apply the Health and Safety at Work Act.

Counsel Inquiry: You explain that the enforcing role was with the police and local authorities in relation to the Coronavirus Act; is that right?

Mr Richard Brunt: That’s correct, yes.

Counsel Inquiry: If I can move on to those regulations that were enforceable in healthcare settings during the pandemic by the Health and Safety Executive, we’re going to look at the Control of Substances Hazardous to Health regulations, which I’m going to call COSHH, and the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, which I’m going to call RIDDOR.

If we can deal firstly with COSHH, you’ve explained in your witness statement that COSHH applies to both incidental exposure to and deliberate work with biological agents; is that correct?

Mr Richard Brunt: That’s correct, yes.

Counsel Inquiry: You go on to say that that would not apply to the situation where one employee catches a respiratory infection from another employee; is that right?

Mr Richard Brunt: That’s correct.

Counsel Inquiry: Can you explain how the COSHH regulations applied to Covid-19 infections in a healthcare setting during the pandemic?

Mr Richard Brunt: I can, but I think, just to set the context, it would be useful to explain that COSHH, like a lot of other legislation, requires a risk assessment process and the hierarchy of control, and that hierarchy starts with eliminating a hazard. If you can’t eliminate it, you substitute; if you can’t, you use physical controls, you use administrative controls; and, ultimately, if you can’t do all of that, you may rely on personal protective equipment. And that does have to be applied as a hierarchy and it does have to be applied on the basis of a risk assessment.

So in a healthcare setting, in relation to Covid, in some of those non-clinical areas where you are thinking that there may be, you know, patient – people that could coincidentally come near patients with Covid, such as cleaners, you would be looking at the elimination, the distancing, physical separation, and so on.

As you start working through that, you recognise that some of that hierarchy cannot be applied and still enable a healthcare worker to give the right level of care to the patient, and carry out any procedures and care they may need to give. So, in those, you get closer and closer to relying on personal protective equipment. All of that does have to be based on a risk assessment that is applicable to that undertaking but some of the standards expected could be extrapolated from elsewhere.

Counsel Inquiry: Right. We’ll come on to that in a moment.

Does COSHH specify precisely what level and types of PPE should be provided to workers or does that depend on a risk assessment?

Mr Richard Brunt: That depends on a risk assessment. COSHH is applicable to a full range of work activities right across all industries and, because of that, as I said, it sets the goals and the process by which you must get there and leaves the decision-making to those that have the most knowledge of the risk and the ability to control it.

Counsel Inquiry: You said a moment ago that it may be possible for employers to extrapolate what’s the appropriate protection from other sources. I don’t think we need to get this up on screen but, from health and safety guidance that was drafted to guide decision-making by Health and Safety Executive regulatory staff, it says:

“If an employer is following the relevant public health guidance for their sector, they will generally be taking reasonably practicable precautions to control workplace risks.”

Now, in relation to the UK-wide IPC guidance, I think you refer to it sometimes in your witness statement as the “four nations PHE guidance”, that’s the same thing?

Mr Richard Brunt: That’s correct, it’s the same thing, yes.

Counsel Inquiry: So if an employer in a healthcare setting during the pandemic ensured that the UK IPC guidance was being implemented and the PPE specified in that guidance for that activity was being provided for workers, would the Health and Safety Executive consider that that employer had taken appropriate measures to protect workers from risks of Covid?

Mr Richard Brunt: The simple answer is yes, and I think to explain that and put it in context, you’ve used the phrase quite rightly “reasonable practicability”, which is the bedrock of the Health and Safety at Work Act. That is a balance between the level of risk and the amount of effort to manage and control that risk. That’s where a judgement comes in.

If I then refer it to the enforcement management model that we’ve talked about, we would look for benchmark standards as that measure of reasonable practicability. So, effectively, the IPC guidance and the parts of that that relate to protecting the healthcare worker would be seen as a defined standard that demonstrates that that level is being achieved.

Counsel Inquiry: Did the Health and Safety Executive consider that there was a lack of clarity for employers concerning their duties under COSHH and how they might apply the IPC guidance?

Mr Richard Brunt: I think we’ve looked at that through our work and how we have supported and helped healthcare trusts throughout the pandemic. As I said, some of the approach we used, enforcing and ensuring compliance with duty holders, is around providing adequate information, et cetera. So, effectively, our advice and support to trusts, through the various routes we’d have used, would have indicated that using that guidance is the right thing to do, and giving them that latitude to look at their local risk assessments required by that, that the employer could carry out, to actually decide whether or not that fully fitted their situation.

I think the other thing is that that IPC guidance will set a sort of – the benchmark, the minimum standard to be achieved. Should someone wish to go above that there would be nothing to stop their assessment saying that’s what they could do.

Counsel Inquiry: Thank you. But, certainly, if a healthcare employer didn’t go beyond that minimum standard or minimum level of protection specified in the IPC guidance, the Health and Safety Executive wouldn’t consider that to be –

Mr Richard Brunt: We accepted that as the appropriate level of compliance.

Counsel Inquiry: Can we have a look, please, at the PPE ensemble table under the IPC guidance.

This is INQ000269663.

Have you got that on your screen?

Mr Richard Brunt: I have, yes.

Counsel Inquiry: I think you explain in your witness statement that in March 2020 the Health and Safety Executive were invited to comment on these PPE ensemble tables in relation to the UK IPC guidance. This had been formulated by the UK IPC cell. Other than being asked to comment upon this table, did the Health and Safety Executive have any role within the UK IPC cell? Were they members of that cell? Were they involved in formulating guidance?

Mr Richard Brunt: We would have provided advice in the same way as we’ve commented on this through our regulatory and scientific advice through the Department of Health, through Public Health England at the time, and sort of acting as an adviser in our sort of role as a Category 2 responder for UK emergencies.

Counsel Inquiry: If we can have a look briefly at some of the PPE that’s set out here as recommended, we can see that in the third row:

“Working in an inpatient area (not a higher risk acute care area) with suspected or confirmed cases and frequent direct patient contact/within 1 [metre].”

What are recommended there are single use disposable gloves, single use plastic apron, sessional use fluid-resistant – it says “(Type IIR) surgical mask” and sessional use eye protection.

Then if we can have a look at the top row, please:

“Performing an aerosol-generating procedure in any setting.”

What’s then recommended is single use disposable gloves, single use disposable fluid-resistant gown, filtering face piece respirator, single use, and single use eye protection.

Did the Health and Safety Executive have any role in specifying or have a position on airborne exposure to Covid-19 in relation to non-aerosol-generating procedures?

Mr Richard Brunt: I believe at that time the scientific advice – and our chief scientific adviser will have been, you know, part of the national bodies sharing such information, that at the time this was drafted it was considered that airborne aerosol transmission wasn’t a factor, other than those aerosol-generating procedures. So we will have challenged the science behind this and made sure that we were satisfied as a regulator that that was the best available information at the time.

Counsel Inquiry: If we can look at the different types of PPE, we see that filtering face piece respirator is specified for aerosol-generating procedures. I think you have explained in your witness statement that the filtering face piece respirators for use in healthcare settings in the UK are FFP3 and FFP2; is that right?

Mr Richard Brunt: That’s right.

Counsel Inquiry: And that FFP2 have been found to be equivalent to the US specification N95?

Mr Richard Brunt: That’s correct.

Counsel Inquiry: And you’ve explained in your witness statement that whilst FFP3 was the usual recommended control measure, if global supplies of FFP3 masks were low, FFP2 could be used as an alternative?

Mr Richard Brunt: That’s correct. And effectively the number at the end of an FFP equates to a level of protection, and effectively how much of a contaminant you could be exposed to and it would protect you from and for how long. So FFP2 3 gives a higher standard.

As I recall, when changes in the sort of World Health Organisation position changed as to how big a risk this was, there was a move to say FFP2 was sufficient for the level of risk and how communicable the disease was.

Counsel Inquiry: Thank you.

If we could look now, please, at fluid-resistant surgical masks, I’m going to call these FRSMs. They are not considered by the Health and Safety Executive to be PPE, are they? You say in your witness statement they’re used as source control:

“… this means they are intended to limit the transmission of infective agents from staff (the wearer) to patients (non-wearer) during surgical procedures and in other medical settings … The aim of universal masking in hospital settings using surgical masks was to reduce the emission of virus particles by everyone wearing a surgical mask.”

Does that mean that the Health and Safety Executive consider that fluid-resistant masks offer no protection to the wearers?

Mr Richard Brunt: They offer a limited amount of protection for droplets, and I say limited in terms of they’re not the same as an FFP.

If I put it in context, HSE regulates the provision of PPE. PPE is designed to protect the individual and nobody else. It’s personal. The fluid-resistant mask is classed as a medical device, not as PPE. It’s regulated by the MHRA, that’s the Medicines and Healthcare products Regulatory Agency, and we obviously liaise very closely with them around those. So although it may offer some protection, it’s not what we would consider PPE. You may look at it in terms of being other parts of a precaution.

Counsel Inquiry: When the Health and Safety Executive commented on this ensemble table, PPE ensemble table, did the Health and Safety Executive raise any comments about the adequacy of specifying fluid-resistant surgical masks in non-aerosol-generating procedures?

Mr Richard Brunt: I think from our point of view, I don’t know categorically whether or not we did offer any comments on that, but we would be looking at that – we would be looking at the aerosol-generating procedures as things that are likely to affect the worker, which is where we would have had a focus, rather than necessarily on the outside of that environment, and that would be the MHRA.

Counsel Inquiry: Did you raise any issues with – this is set out as a recommended PPE table, but fluid-resistant surgical masks are not considered by HSE to be PPE. Was that point raised in the drafts on the guidance?

Mr Richard Brunt: As far as I’m aware, yes, it would, and certainly I know the conversations that I had with PHE and DHSC throughout the pandemic, we were always going back to that, that fluid-resistant masks are not PPE.

Counsel Inquiry: Thank you.

While we’re on the subject of PPE – and we can take that table down, thank you, Lawrence – I’d like to deal briefly, if I can, with some issues that arose during the pandemic in relation to marking on PPE products.

There were broadly three areas of concern, and we can go through each one, but: firstly, PPE that was not CE marked as compliant with conformity with European safety regulations; secondly, PPE that had been re-lifed by placing a new expiry date over the original expiry date stamp; thirdly, PPE that was marked “not for medical use” but was used in healthcare settings.

Is it right to summarise it in this way: in respect of all three of those labelling issues, before that – any such PPE was made available for use in the healthcare sector, that PPE had to have been assessed by the Health and Safety Executive and found to be compliant with the relevant elements of the essential health and safety requirements of the regulations?

Mr Richard Brunt: That is, and I’d also stress that it could only be supplied for the healthcare sector, because HSE had a – were able to give that derogation under EU legislation, we were a member of the EU at the time, and that would not allow that equipment to be used anywhere outside the healthcare setting.

Counsel Inquiry: Was the Health and Safety Executive aware or was it made aware during the pandemic that those three types of RPE or those three labelling issues were causing concern for healthcare workers in healthcare settings as to causing some confusion about whether those were appropriate items for them to use?

Mr Richard Brunt: Yes, we were aware of that. We worked very closely with DHSC and others through the supply chain, gave advice as to the information that would also need to be included in those. As I said, the whole basis of being able to provide that for healthcare is a derogation that was from EU legislation that said “for healthcare only”, therefore the enforcing authority can, subject to them being satisfied with the performance of that equipment, allow it to be supplied in these circumstances.

Counsel Inquiry: So was it envisaged by the Health and Safety Executive that would be for employers to explain that those safety steps had been taken?

Mr Richard Brunt: It would be ultimately for the employer to explain. The expectation is it’s cascaded through that supply chain, which was being run closely by DHSC and others, saying make sure adequate information was being provided with that PPE to be able to explain those – those circumstances.

Counsel Inquiry: Thank you.

If we can move on, please, to fit testing of respiratory protective equipment. You explain that in relation to FFP2 and FFP3, those are respirators which rely on having a good seal, a good fit and a good seal with the skin of the wearer; is that right?

Mr Richard Brunt: Absolutely. In order to give the right level of protection, they’ve got to fit very firmly against the face, because if there’s any gaps, as you inhale the air takes the line of least resistance, and it can be as significant as a gentleman that hasn’t shaved for 24 hours, the mask worked yesterday, it might not work today.

Counsel Inquiry: And you explain that there are two basic types of fit testing, qualitative and quantitative. Am I right to summarise it in this way: qualitative fit testing relies on the subjective assessment of the wearer, they’re asked to apply the mask and then a strong smell or a bitter taste is released and it’s a question of whether they can smell or taste that substance that’s being released. Is that right?

Mr Richard Brunt: That’s correct. I mean, very broadly there’s two ways: one, you either put a measuring device inside the mask and see what is being drawn into the air quantitative measurement, otherwise it’s asking someone “Is this fitting? Can you smell or taste” – whatever he’s being exposed to.

Counsel Inquiry: With the quantitative measurement there’s a machine that has to do that?

Mr Richard Brunt: There is, yes.

Counsel Inquiry: With either type of fit testing, the fit tester has to be trained to carry out a fit test, so that requires training a person?

Mr Richard Brunt: Yeah, you need a person with the right skills, experience, et cetera, trained, yes.

Counsel Inquiry: And evidently, as everyone’s face shape is a different shape and size, it’s going to be unlikely for a single model of FFP to fit every face type, so it’s necessary to have a range of models; is that right?

Mr Richard Brunt: Exactly. Any employer, anyone that’s relying on PPE should have a number of different models. You then test to see which one is giving the right level of protection.

Counsel Inquiry: Now, you have been made aware, I think, of a study which has been provided, it’s been provided to the Inquiry by the Federation of Ethnic Minority Healthcare Organisations, and that’s been provided to you, and that study found that the failure rates of fit testing were significantly higher in staff from black and ethnic minority ethnic backgrounds.

Was Health and Safety Executive aware that fit testing was more often failed by black and minority ethnic staff?

Mr Richard Brunt: I think some of that information was available. The key point to us is that somebody has to be able to pass a fit test before you’re relying on that protective equipment, and hence the – it underlines the importance of having that range of models.

Effectively, the standards that PPE is designed to, certainly that – these CE marked, is based on European standards and the face shape of those ethnic groups.

Counsel Inquiry: Did Health and Safety Executive take any steps in relation to those difficulties with not every model fitting every face? Did Health and Safety Executive issue any guidance or any advice for employers about the need to have a diverse range of –

Mr Richard Brunt: Yes, our guidance has always said that, and that would have been the guidance we relied on. As I said, it is the individual nature of PPE.

Counsel Inquiry: Now, you set out that there were a number of issues with fit testing during the pandemic: a lack of testing machines, sometimes a lack of the testing fluids that were needed for qualitative testing, and also issues in relation to staffing resources to carry out the fit tests. And you explain that towards the end of March 2020, the chief executive for a group of NHS trusts contacted the Health and Safety Executive to ask whether it would be possible to remove the requirement to fit test RPE and do a fit check instead. Can you help us with the response of the Health and Safety Executive to that request?

Mr Richard Brunt: If I summarise it, it was: you must do a fit test, a fit check is not a substitute.

Counsel Inquiry: What is a fit check?

Mr Richard Brunt: A fit check is sort of like the daily check by the person using the PPE to assure themselves that they have fitted it correctly as it was at the fit test. A very simple way of describing it is having had a – chosen a model that gives you the right level of protection, has passed the fit test, when you then put it on you put your hands over the filter to sort of try to slow the air going down through it, take a sharp intake of breath and see if it collapses. In very simple terms, it is just making sure it is on as it’s supposed to be.

Counsel Inquiry: Thank you.

What would the Health and Safety Executive view be of any proposals to, in a future pandemic, amend the regulations so that there could be a derogation from that requirement to fit test if resources were scarce, if there was a lack of fit testing, staff or equipment?

Mr Richard Brunt: It would be the same response as this pandemic: you have to fit test. The adage that we were living by is personal protective equipment has to protect, and anything that undermines that you’re not satisfying your legal duty.

Counsel Inquiry: Now, if either a member of staff failed the fit test for the models of RPE that were available, or there were some other reasons, religious head coverings or glasses or beards that meant they couldn’t get a good fit, were there alternatives that offered a similar level of protection?

Mr Richard Brunt: There are. I mean, FFP (filtering face piece), the mask as we commonly refer to them, they’re not always popular, they’re not comfortable, et cetera. There are other respiratory protective devices that involve filtering air and pumping it through a mask or a hood. We call them positive powered respirators, so they blow air in and create a sort of cushion of air around your face. They will tend to be, as I say, a hood type or something of that nature.

Counsel Inquiry: Were those specified? We didn’t see those specified in the ensemble table that we saw. Were those specified in IPC guidance, those alternatives to FFP2?

Mr Richard Brunt: I can’t off the top of my head recall if they were specified in IPC guidance, but certainly within sort of health and safety standards and guidance on PPE they would have been there as an alternative.

Counsel Inquiry: Thank you.

Can we move on, please, to Reporting of Injuries, Diseases and Dangerous Occurrences Regulations, which you will be relieved to know I’m just going to call RIDDOR.

Mr Richard Brunt: Thank you.

Counsel Inquiry: You set out the outline and purpose of RIDDOR in your witness statement, and you explain that these regulations:

“… provide the national reporting framework for responsible persons (usually [means] employers [in healthcare settings] …) to report certain cases of injury, diseases and specified dangerous occurrences to the relevant enforcing authority …”

Which in the case of healthcare settings is the Health and Safety Executive.

“The purpose of [those regulations] is to inform [HSE] in a timely fashion that an incident or event has occurred and [it allows] an appropriate regulatory response to be made.”

It is “not a source of definitive statistics as to reportable workplace incidents”, but it does enable the “broader monitoring and analysis of trends over time and prioritisation and targeting of risks in particular … sectors”.

Is that a fair summary?

Mr Richard Brunt: That is – that’s how we would use that data. It either enables us to make an immediate response where something very significant has happened and we believe there may be unmanaged or uncontrolled risk. But also that sort of overview of particular industries, that helps us with targeting of our resource.

Counsel Inquiry: You also set out that making a report under RIDDOR is not an acceptance of blame or that a breach has occurred?

Mr Richard Brunt: Absolutely, it’s just a statement that an event has taken place.

Counsel Inquiry: You have stated that RIDDOR was not intended to be used in a pandemic involving thousands of instances of infection, it was really designed to capture single one-off unexpected events, accidents and incidents; is that right?

Mr Richard Brunt: I think that’s a very fair way of viewing it. That’s the intention of those regulations as to what is happening in a workplace, not what is happening globally or, you know, across the country.

Counsel Inquiry: In terms of reporting Covid-19 under RIDDOR, I think the Health and Safety Executive published guidance – I think the first guidance was on 2 April 2020, and that set out that the responsible person, so the employer, was required to make a RIDDOR report if there was reasonable evidence that a worker diagnosed with Covid-19 had been exposed while at work?

Mr Richard Brunt: That’s correct. I mean, I think that it’s useful to have the context that the injuries part of RIDDOR has very specified injuries, you know, it lists what those are. The diseases part of RIDDOR has specified diseases, it lists what those are. Either of those apply to Covid. The dangerous occurrences is the exposure to a biological agent, so it’s very broad, but that’s why it needs that reasonable evidence that it’s linked to work to actually fall under that duty to report it.

Lady Hallett: How would that apply to healthcare work? Wouldn’t it apply to all of them? Because yes, they may catch Covid on the bus or in a cab to work, but chances are the exposure was at work. How does it – does it not mean that every case of a healthcare worker getting Covid would have to be reported?

Mr Richard Brunt: We’re looking at the – we were taking the view it’s the work activity, so if you’re exposed to a colleague at work that, you know, you meet them coincidentally in the corridor, et cetera, that’s not the work activity, so we were looking specifically at those people that could be exposed to patients known to have Covid, carrying out procedures where they are sort of directly interacting with them. And it requires a judgement by the employer: the duty, the legal responsibility is with them to decide how likely it was that it was caused by that work related exposure, the working with patients. And it’s not necessary – and we also need to think about this in terms of RIDDOR applying across all businesses and we’re trying to be transparent and consistent. And it’s the same whereas just because I was in the same workplace as somebody that had Covid doesn’t necessarily mean I did catch it from them. So it’s a judgement as to: how did my work bring them into contact with that disease?

Lady Hallett: I go back to the point I make: every healthcare worker in the frontline had hugely increased exposure, so if they got Covid the chances were it was work-related; so wouldn’t you, under this guidance, have been inundated by trusts saying “This number of doctors, this number of nurses have all got Covid”, and they couldn’t tell you whether they got it in the corridor when they were passing a colleague or whether they got it when they were dealing with the patient?

Mr Richard Brunt: Or on the bus or at home.

Lady Hallett: Yes.

Mr Richard Brunt: And that’s why it requires an employer to actually be looking at what’s going on. It’s a difficult judgement. It’s legislation that wasn’t intended for this type of situation, and we had to work out: what do we do that gives us a reasonable view of what’s happening in workplaces, and indeed what we may need to do in response to it. It’s not intended to track the total number of cases that are happening. It’s not intended necessarily for that liability, and, you know, if it’s helpful we could talk about, you know, the purpose of investigation and selecting them for investigation.

Ms Nield: I think, following on from her Ladyship’s point, can I ask you, Mr Brunt, you say it became quite clear to the Health and Safety Executive early in the pandemic that there was both overreporting, or what you determined to be overreporting and under-reporting of Covid-19 under RIDDOR, and you explain that, when the guidance was first published, the Health and Safety Executive received a large volume of queries from employers, picking up on just the point that my Lady made, clarification as to what constitutes reasonable evidence that the worker was exposed to Covid-19 at work; is that right?

Mr Richard Brunt: That’s right, and we did several iterations of that guidance in a relatively short space of time for exactly that reason. The feedback we were getting, as my Lady said, was people were struggling to understand how to apply it, when to apply it.

Counsel Inquiry: Can I ask this, after several reiterations – or iterations of that guidance, I’m sorry – were you still getting a large number of queries or did the guidance –

Mr Richard Brunt: I think –

Counsel Inquiry: – have the desired effect?

Mr Richard Brunt: It had some effect, and we still needed to write to individual trusts, collectively, to explain what we expected of them and to help them improve the overall figures, and this has always been a feature of RIDDOR. There are some areas you get under-reporting, some areas you get over reporting. It is not unique to this situation.

Counsel Inquiry: Can I ask, from the Health and Safety Executive, what are the consequences of under-reporting under RIDDOR? What would the practical impacts of that be?

Mr Richard Brunt: If we were looking at an individual business, then you don’t have a picture of what’s happening there. In the circumstances with Covid and reporting, we were still able to extrapolate enough of that to be able to understand how people were applying precautions in the workplace and to be able to take a sort of holistic approach to helping those healthcare settings in terms of how they comply, how they improve their procedures and, indeed, some of our inspection activity in hospitals and healthcare trusts was geared up exactly for that, to be able to assess what was going on, identify where the best practice were and where the shortcomings were and, again, go to the whole industry and be able to share that information to enable improvement.

Counsel Inquiry: You have been provided with the witness statements of four of the core participants in this module, the Trades Union Congress, the Royal College of Nursing, the British Medical Association and the Covid-19 Airborne Transmission Alliance, and all those core participants have taken the view that the Health and Safety Executive set the bar too high for reporting occupational Covid-19 in healthcare settings under RIDDOR. What’s the health and safety view on that?

Mr Richard Brunt: We think that that bar was the correct one, we kept that under review, it was peer reviewed over a period of time by senior regulatory colleagues as to was that giving us the appropriate information. From having looked at the statements that you’ve mentioned, I think you have to consider the angle of what the expectation is. If it is an expectation that everything gets investigated and there’s some incredible retribution for what happened, that isn’t the purpose of necessarily selecting the incidents and investigating them.

So when we investigate an incident, it’s either to improve our knowledge on an emerging situation or, indeed, you know, part of that is to consider whether or not there is corrective action or punitive action. When we looked at the incidents that have been reported and our selection of those that were reported, there was a proportion selected for investigation, there was many we looked at that we decided we could not see the causal work link and did not investigate. Some of those we have a threshold of incident selection criteria that’s long established and publishes as to what we will investigate and won’t. A lot of those Covid cases will have fallen beneath that bar. And then, of those we did select, we go on to decide (a) is the new learning that we feed back into the system where we’ve identified new problems or is this down to individual businesses, individual settings, not actually applying the guidance in the right way and being able to improve that.

Lady Hallett: Given the numbers we’re dealing with, so it’s going to be very unlikely that you’re going to be able to investigate individual cases, wouldn’t one solution have been to say, “Right, all National Health trusts, hospitals, whatever, have to report every member of staff or contracted worker who gets Covid”, and then you, as the Health and Safety Executive, can analyse whether there appears to be a systemic problem, in other words is that hospital properly carrying out infection prevention and control measures, are they providing the right PPE?

Isn’t that the only way you can cope with an analysis of the workplace safety in a pandemic, when you’ve got so many hundreds and thousands of healthcare workers and contractors who are falling ill with Covid? I mean, you’ve got to move from the individual case to the systemic case?

Mr Richard Brunt: To the systemic case. There’s many ways that we can regulate and what we did during the pandemic, as well as looking at whether we investigated particular incidents or patterns, we carried on with the inspection activity in hospitals where we were looking specifically at Covid controls, or we did inspections and also looked at Covid controls.

As a regulator, you don’t have to visit every business to regulate them, you need to learn enough to be able to tell those businesses what to do, and that doesn’t matter whether it’s healthcare or anything else. So a proportionate and transparent approach to it and, indeed, that’s what we did. Our inspection activities that continued on hospitals, we extrapolated information from that to be able to help those healthcare settings across the piece be able to identify where the challenges were, the sort of things that we would find. So there is a level as to at what point will you stop learning anything new and be able to say that we understand enough to tell them what is expected.

Ms Nield: So does it follow from that, Mr Brunt, that what you’re saying is RIDDOR isn’t used to track general compliance with health and safety rules in a workplace, it has a different purpose, and the way you tried to track compliance in a workplace or across a sector is through your inspection activity?

Mr Richard Brunt: There’s a whole range and I could spend far too long talking about it but, in terms of targeting activity, RIDDOR is part of a dataset. We also pick up data from what concerns we may get reported to us. There are labour force surveys that look more generically at what’s happening across businesses. So that is how we function as a health and safety regulator.

In these particular circumstances, as I say, we understood, we knew what we were getting was going to be varied trust by trust but, collectively, putting that together with intervention data, et cetera, gave us an approach to be able to play our part in the workplace regulation that was part of a bigger UK-wide management of a pandemic.

Counsel Inquiry: Can we move on, please, to deal with inspections and spot checks in healthcare settings during the pandemic.

I think you explain in your witness statement that the Health and Safety Executive continued to undertake inspections in healthcare settings, there wasn’t a formal suspension of inspections, but operational decisions were taken to initially cut back on inspections as the sector was under strain. You explain that, as part of your inspection activity, between December 2020 and January 2021, there were inspections focused on Covid-19 arrangements at 17 acute hospitals, that’s 13 trusts in England, two health boards in Scotland and two in Wales.

In terms of the outcomes of those inspections, I think it’s right to say that the Health and Safety Executive identified that there was quite a wide range of compliance, both with the health and safety rules, both in terms of comparing the hospitals with one another but even within hospitals, and you noted particularly that there were lower levels of compliance frequently found in non-clinical areas, even where those were adjacent to clinical areas; is that correct?

Mr Richard Brunt: That’s correct, that’s a good summary.

Counsel Inquiry: If I can ask now please about Covid-19 spot checks, I think these were just introduced during the pandemic to try to check how businesses generally, not just healthcare settings, were implementing the Covid secure guidance about keeping workplaces Covid secure. But healthcare settings were amongst the workplaces that were subject to spot checks; is that right?

Mr Richard Brunt: That’s correct.

Counsel Inquiry: If we can briefly summarise in numbers, the spot check programme, 483 spot checks and spot inspections were conducted in healthcare settings and, from those 483, 18 duty holders were issued with written advice. Do you consider that that’s quite a low enforcement rate?

Mr Richard Brunt: I think that’s proportionate to what we were finding, as I say, the enforcement rate depends on the facts of what you find when you carry out an inspection. But the spot checks, to clarify that, not all of those are necessarily inspections by regulatory inspectors, that carry warrants. There was a process there by which, effectively, the spot check gave a three-stage triage process, so the initial check/contact could be by phone, it could be by a non-warranted person visiting. That enables you to assess whether or not you believe someone is compliant. If there were concerns that moved up to a second stage, if that still didn’t give a satisfactory answer, that moved over to a regulatory inspector, a warrant holder, who could take enforcement action if necessary.

Counsel Inquiry: In terms of the process of the spot check, I think the first stage was a questionnaire that was completed by the duty holder; is that right?

Mr Richard Brunt: That’s right.

Counsel Inquiry: Then the second stage could be a visit or it could be carried out by telephone?

Mr Richard Brunt: That’s right.

Counsel Inquiry: So those features of the spot check put quite a strong reliance and a trust in the answers of the duty holder being accurate and honest; would you agree?

Mr Richard Brunt: Well, inasmuch as we then go and validate whether or not we’re getting the right answers and whether what we’re being told is what’s happening. So we had a good validation process behind that that involved sample inspections and follow-up, and I think we were finding, as I recall, 96% compliance with what we’d been told over the telephone, so we validated that we could be confident what we were being told was right.

I mean, if we look at spot checks across the piece, the country is facing something it’s never faced before. On the whole, everybody is saying, “Tell us what you need us to do and we’ll do it”, and that was the guidance that was going out across businesses that was produced for the safer workplaces, that is as applicable to healthcare settings as everywhere else. So, generally, a spot check call puts people on notice that you’re looking and those that want to comply will do everything they can to comply and it helps with really gauging their understanding of what they’re putting in place.

Counsel Inquiry: Thank you. You mentioned earlier that, as well as inspections, there is a process by which the Health and Safety Executive are able to receive and monitor concerns that have been brought to the attention of the Executive by workers or indeed members of the public. I think you explain that those concerns can be reported to the Health and Safety Executive via the website or via telephone.

In spring of 2020, I think the Health and Safety Executive were aware that there was a greatly increased level of concerns coming from healthcare settings, and particularly regarding the availability of PPE and the inadequacy of face fit testing for FFP3 face masks; is that correct?

Mr Richard Brunt: That’s correct.

Counsel Inquiry: You have set out some of the data around health and safety concerns logged by the Health and Safety Executive, in relation to Covid-19 in healthcare settings, this is from 1 March 2020 to 30 June 2022, so that’s the relevant period, or roughly the relevant period of this module. There were 1,587 such concerns logged; 192 of those were categorised under the red, amber, green system as red concerns. Would a red concern trigger an inspection of a setting?

Mr Richard Brunt: That’s right, effectively we’d again, a triage system to decide the credibility, validity, the seriousness of what we were being told and how to intervene with that.

So the red concerns those that we see as most serious, which trigger a visit. Those of a – you know, that we would consider to be amber would trigger a contact but not necessarily in person: telephone, for example.

Counsel Inquiry: In terms of how these concerns could be reported to the Health and Safety Executive, was it possible for workers to report a concern anonymously?

Mr Richard Brunt: Yes, that’s always been a feature of our concerns process, that people can contact us, raise their concerns about their workplace and, as far as we can give that anonymity, particularly if they’re doing it online.

Counsel Inquiry: In terms of those workers who may have precarious employment situations, and particularly those who aren’t union members or who are maybe not employees, did the Health and Safety Executive take any steps to ensure that the system for reporting concerns was accessible to all healthcare workers including those that I’ve mentioned?

Mr Richard Brunt: Yes, the telephone and the web facilities were available for anyone to use.

Counsel Inquiry: Was there any sort of outreach work done by the Health and Safety Executive to bring to people’s attention that there was this process for reporting?

Mr Richard Brunt: I can’t honestly answer that one, I don’t know the answer.

Counsel Inquiry: Right.

Mr Richard Brunt: It’s something in my statement I may have forgotten.

Counsel Inquiry: If we could turn now to look at the health and safety approach to enforcement action during the Covid-19 pandemic, and the way that the Health and Safety Executive applied the enforcement management model, which you mentioned earlier. You’ve explained that, as part of that management model, there’s a categorisation of the risk of harm and, in terms of Covid-19, that the health effect was categorised as “significant” rather than “serious”. It may help you if I remind you from your witness statement how the Health and Safety Executive defines “serious harm”, and that is:

“Harm that has an effect which is permanent, progressive or irreversible, permanently disabling, a lifelong restriction of work capability or a major reduction in the quality of life.”

“Significant harm”, which is one rung below, is:

“… non-permanent or reversible, non-progressive and any disability is temporary.”

Is that right?

Mr Richard Brunt: That’s correct. It’s looking at what is the likely outcome of the exposure to the risk and the harm that eventualises from that risk.

Counsel Inquiry: I, think in terms of that classification, although it caused some controversy at the time, the Health and Safety Executive peer reviewed that classification and it was confirmed; is that correct?

Mr Richard Brunt: Absolutely, and when we are looking at that sort of level, it is what is the most credible, what is the most likely outcome of that risk to the working population. So we’re taking into account, in the circumstances of Covid, the scientific advice, the medical advice, et cetera, of what is most likely for somebody that contracts Covid in terms of the long-term outcome.

Counsel Inquiry: That’s in terms of the working population as a whole, so the effects aren’t stratified, for example if it was a 65-year old worker who might be more likely to suffer?

Mr Richard Brunt: It’s the working population on average, yes.

Counsel Inquiry: So that probably answers the next question but one of the points that was made was in relation to Long Covid having potentially long-term disabling effects, and whether knowledge and understanding about Long Covid developing in some people who had contracted Covid, whether that would affect the classification of Covid-19 as “significant” rather than “serious”?

Mr Richard Brunt: Right, and as with everything else during the pandemic, as evidence came out, we did keep that under review and, again, when we reviewed that, and including our scientific and medical advice that peer review said that’s still the right classification when we’re comparing that with all the other risks that HSE is responsible for regulating.

Counsel Inquiry: There’s a final point on that topic. You’ve said that the decision to classify the health effect of Covid-19 as “significant” did not impact on the level of enforcement action that an inspector could take in respect of a Covid-related matter or breach; is that correct?

Mr Richard Brunt: That’s correct. As I explained earlier with the enforcement management model, it sets an initial starting point for an inspector to consider what enforcement action is relevant, and you have to consider that enforcement action is in relation to the severity of the breach of legislation and not what the actual outcome may have been, because, you know, if I was to try and put this in very simple terms, anyone can slip over and receive a really minor injury on a perfectly level floor. Equally, you can fall over and bang your head and suffer a really major injury. The severity of the incidents, the causal effects is the same and that’s where we would be pitching what the enforcement outcomes are, and that’s not necessarily the same as the physical outcomes of the consequences.

Ms Nield: Mr Brunt, thank you very much.

I wonder, my Lady, if that’s a convenient –

Lady Hallett: Yes, certainly.

I hope you were warned that we would be breaking for lunch.

The Witness: I was indeed, thank you.

Lady Hallett: Thank you. I shall return at 1.45.

(12.48 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Ms Nield.

Ms Nield: Thank you, my Lady.

Mr Brunt, I’m asked to clarify a couple of matters with you. First of all, if we can return to the RIDDOR regime, and the guidance during the pandemic in relation to reporting incidents of Covid-19 infection in healthcare settings.

You have set out in your witness statement that the condition known as Long Covid is not reportable under RIDDOR, as any occupational exposure to a biological agent that causes Covid-19 occurs at the time of initial infection. As Long Covid occurs later, it is not reportable.

Would it be correct to say that it is the infection with Covid-19 due to occupational exposure that’s reportable, rather than any long-term consequences?

Mr Richard Brunt: Exactly, the reportability is the exposure to the infectious agent, not the consequence of the exposure.

Counsel Inquiry: So whether someone develops Long Covid subsequently doesn’t make any difference to how reportable the initial infection was?

Mr Richard Brunt: Absolutely, you could theoretically be reporting an exposure – if you had a release in a laboratory, you could report an exposure that didn’t lead to any infection at all, so it’s the acts – the event that is the reportable.

Counsel Inquiry: Thank you very much.

I’m also asked to clarify a point in relation to the evidence that you gave this morning. You were asked whether the Health and Safety Executive had a role – sorry, had a position on airborne exposure to Covid-19 in relation to non-aerosol-generating procedures, and this was your answer, I’m taking this from the [draft] transcript:

“I believe at the time the scientific advice and our chief scientific adviser will have been part of the national bodies sharing such information, that at the time this was drafted it was considered that airborne aerosol transmission wasn’t a factor, other than those aerosol-generating procedures.”

This is the part that you were asked about, you went on to say:

“So we will have challenged the science behind this and made sure that we were satisfied as a regulator that that was the best available information at the time.”

Are you aware whether the Health and Safety Executive did, in fact, challenge the science behind it and make sure that you were satisfied as a regulator that that was the best information; what steps did you take?

Mr Richard Brunt: That would have been the role with our chief scientific adviser developing that understanding and where we were. So it was that advisory and discussion role across government so that we could understand where we were, and our chief scientific adviser, who was also a member of SAGE, would have attended there.

Lady Hallett: So the HSE has its own chief scientific adviser?

Mr Richard Brunt: We do, Professor Andrew Curran.

Ms Nield: So far as you’re aware, did the HSE’s chief scientific adviser challenge that, what was perhaps the orthodoxy at the time?

Mr Richard Brunt: I wouldn’t be aware of any conversations he’s had specifically, I know that he was part of that forum and that was his role, and the conversations that I’ve had with him would lead me to believe he’s been part of those discussions and had an opinion. I do remember talking to him during the course of the pandemic and the point at which he said to me, “I have been persuaded and seen new evidence, I now believe there’s an aerosol route”, so his original opinion and his challenge would have been that he saw this as a droplet.

Counsel Inquiry: Thank you.

If we can move on, please, to lessons learned by the Health and Safety Executive in relation to the Covid pandemic. I think the Health and Safety Executive undertook a report reviewing the effect of Covid-19 in the workplace, and that was published in January 2021 and based on Health and Safety Executive data between April and September 2020. Arising out of that, or indeed any of the other reflective work that the Health and Safety Executive have undertaken, how would you summarise what lessons have been learnt by the HSE that can be applied to workplace health and safety in healthcare settings in future pandemics?

Mr Richard Brunt: I think one of the key things was being able to respond quickly to emerging evidence, being able to keep alive and keep reviewing the information that’s coming out. I think there was a very clear need identified for clear communication, and that links to some of the things we’ve talked about this morning, of, you know, messaging on PPE, et cetera. So it’s being able to make sure everybody understands what’s happening and how things are developing.

Counsel Inquiry: Do you consider that, in a future health pandemic, the Health and Safety Executive would be likely to take a different approach to health and safety in healthcare settings, and particularly things like the RIDDOR reporting regime?

Mr Richard Brunt: I think each one of these would have to be judged on its merits. We don’t see many pandemics in anybody’s lifetime. As an organisation we have to have that organisational memory of what we’ve done, and so on. But those decisions were based around the evidence and the science as we saw it in this case, and the approach would be the same, but whether or not the decisions were, would depend on that evidence.

Ms Nield: Thank you very much. I’ve no more questions for you, Mr Brunt.

My Lady, I understand there are some questions.

Lady Hallett: There are others, so you can’t escape just yet.

Mr Stanton, I think you’re going first.

Questions From Mr Stanton

Mr Stanton: Thank you, my Lady.

Good afternoon, Mr Brunt. Firstly, I apologise for this slightly awkward positioning, please don’t feel any need to turn to face me but do so if you wish.

Lady Hallett: We have to get everything you say recorded.

The Witness: Absolutely, I’m making sure I can hear.

Lady Hallett: Okay, so hear and then turn to me, thank you.

Mr Stanton: Mr Brunt, I would like to show you an exchange of correspondence between the BMA and the HSE. The first document, which hopefully will be brought up on your screen, is INQ000097909. This is a joint letter of the BMA and the Royal College of Nursing from 21 January 2021. At the first paragraph there, you will see, second sentence, it states:

“We write to you with concerns about the ongoing threat posed to health and care staff following the identification of the SARS-CoV-2 variant … and your regulator’s role in preventing work related ill health, death or injury.”

The next paragraph:

“Our very serious concerns relate to the risk of aerosol/airborne infection; RCN and BMA members working in all settings are raising concerns that they are not adequately protected. Our members are concerned that fluid repellent surgical face masks and face coverings, as currently advised in most general healthcare settings, do not protect against smaller more ineffective aerosols.”

Then right down at the bottom of the page, Mr Brunt:

“… we are calling for the Health and Safety Executive … to take a precautionary approach and to use your role as a regulator to ensure employers and those developing national guidance meet and understand their responsibilities.”

Then over the page, at the first paragraph, there is a request for you to review the IPC guidance and to make an assessment of the use of appropriate PPE across settings.

Your chief executive responded on 29 January.

This is within document INQ000417574, at the second page, please.

Right at the top, it is stated in response:

“Before publication of the revised guidance, on 21 January, a clinical and scientific review was carried out and, as the guidance states ‘no changes to the recommendations, including PPE, have been made in response to the new variant strains at this stage, however this position will remain under constant review’.”

Then next paragraph:

“Whilst HSE will not be undertaking a review, as this has already been done by those responsible for the guidance, we will continue working closely with DHSC and other government departments”, et cetera.

I don’t think we need to go any further.

Mr Brunt, just pausing there, this exchange of correspondence took place at the very height of the pandemic in January 2021 when hospitals and healthcare workers were overwhelmed with Covid patients. The correspondence is also on behalf of some three-quarters of a million healthcare workers whom RCN and BMA represent, and it took place at a time when there was widespread acknowledgement of the risk of aerosol transmission.

So in these circumstances, I’d like to ask you: given the HSE’s long-standing position, from well before the pandemic, that surgical masks are not RPE and do not provide adequate protection against airborne transmission, can you explain why the HSE refused to engage with the BMA and the RCN on this important issue?

Mr Richard Brunt: I think we gave a full response based on the questions we’d been asked. As I’ve explained in my evidence this morning that position of HSE working with other government departments in support of the national response to Covid, constantly keeping things under review, as we stated in this response, that recognition that those things have to – we have to iterate the guidance, et cetera, this was the response based on the position at that time and our understanding.

We fully recognised the significant pressures that the health services were working under and we were part of that overall response of the IPC, the Department of Health, et cetera, in trying to take that forward. So to be able to pick up that when we’re already dealing with it at that national level was a key part of our response to this.

Lady Hallett: I think the point that Mr Stanton is making is that by January 2021, there’s widespread acknowledgement – including, by the sounds of it, by your own chief scientific adviser – that this was an airborne virus and that you’ve always accepted that certain kind of masks weren’t suitable. So why doesn’t something change? This looks a bit like a fobbing off.

Mr Richard Brunt: I think this – as I say, we were looking to the Public Health England and DHSC as the leads on the pandemic, how we’re working with them, making sure that guidance is suitable based on what we knew at the time. I know I said that Andrew Curran’s position changed, I couldn’t put a date on that off the top of my head, I don’t know, and I would be very confident that when we’ve drafted this response, we will have taken that into account.

Lady Hallett: Sorry I interrupted, Mr Stanton.

Mr Stanton: No, thank you, Chair.

Mr Brunt, leaving aside the slight irony in responding by saying the guidance will be kept under constant review and then refusing to review it, I don’t know if you heard the evidence of Dr Barry Jones of CATA this morning, who expressed the view that at every turn his organisation was managed and pushed away when they tried to make representations of a similar nature. The BMA certainly feels that they were being managed and pushed away by your response.

Is the reason for that because there wasn’t any scientific basis to your response?

Mr Richard Brunt: I think that our response was based on that position at that time. And as I’ve said before, we’re taking account of the advice we’re getting from our chief scientists, from other scientific advisers working in that cross-government position, recognising that the lead on this was others and we are part of that.

Mr Stanton: Thank you, Mr Brunt.

Can I take you to another document, please.

This is INQ000269711, at page 11.

This document is helpfully exhibited by you to your statement, and commendably it is a lessons learned document that the HSE commissioned and asked a workplace health expert committee to undertake.

It reported in May 2022. And at page 11, which I see you have before you, right at the bottom, under the heading “Airborne Spread”, it states – or it finds:

“Aerosol transmission was underestimated significantly at the outset and for some months thereafter. Controls were therefore less effective than they could have been, notably in settings like health and social care.”

It goes on to indicate a particular lesson learned, that is:

“All plausible routes of transmission for a novel biological agent should be considered and an initial precautionary approach to risk management should be adopted.”

Then just if I could take you to another page, a final page from this document, page 17, you’ll hopefully see four bullet points at the top of the page. Again, further lessons learned in this area:

“Use of simple PPE was afforded undue prominence early on in the pandemic and that has had lasting consequences on perceptions of its importance as a control measure.”

Next point:

“In contrast the use of more effective respiratory protective equipment was downplayed in the early stages of the pandemic and that may have been contributed to higher infection rates.”

The third point:

“Understanding of the different types of respirators and the differences between these and face coverings remains sub-optimal.”

And the final point:

“Early and consistent messaging about the real value of PPE and face coverings should be a priority in any future pandemic involving a respiratory disease.”

Mr Brunt, I’d like to ask you whether the HSE accepts that these identified concerns, coupled with the refusal to engage with the RCN and the BMA on these very same issues, identifies failures on the part of the HSE to discharge your statutory responsibilities?

Mr Richard Brunt: I think when we – it’s very good that we are looking at that process of review and learning. This is, as we’ve said, published in 2022, a retrospective. It is also looking broadly across the whole of the situation and all industries, and some of those nuances about PPE. I think it’s really important that we recognise and we learn from those, and we take those into account.

It does come back to, from a health and safety at work point of view as well, not putting all the emphasis on PPE, and that’s the hierarchy of control that has always been there. So it’s really important that we do learn these lessons and take those forward.

Mr Stanton: Thank you, Mr Brunt.

Just moving to a slightly different area, this is my final question, can I ask: what role did the limited supply of RPE play in the way the HSE sought to discharge its responsibilities?

Mr Richard Brunt: I think the only role that played is it did emphasise the importance of what we were doing to make sure PPE was available, the situation we – or the set-up we had for making sure we could do the regulatory easements for adequate and suitable PPE that met the right standards but wasn’t CE marked, the efforts we put into making sure that that could be distributed, the support we gave to that supply chain. So I think we did as much as we were able to within that regulatory framework to facilitate the supply of PPE.

Mr Stanton: If I could just briefly clarify, Mr Brunt. The reason for asking that question is because the BMA and other organisations are slightly scratching their heads because they don’t see any scientific basis for the IPC guidance which remained in place for so long, and I’m asking whether, instead of a scientific underlying basis, actually was the IPC guidance drafted in the way it was because of concerns about the supply of equipment such as FFP3?

Mr Richard Brunt: I’m not aware of those final decisions at the IPC. Certainly HSE’s input was that if PPE is required, it is required, we shouldn’t be getting away from that. That’s the requirement and it should protect. It is also part of an overall control or risk control mechanism and has to be considered in that totality.

Mr Stanton: Thank you very much, Mr Brunt.

Thank you, my Lady.

Lady Hallett: Thank you, Mr Stanton.

I think next it is Mr Jacobs.

Questions From Mr Jacobs

Mr Jacobs: Thank you.

Mr Brunt, these are questions on behalf of the Trades Union Congress. Good afternoon.

Firstly, inspections. Very roughly, what is the number of inspections of workplaces across all sectors in an ordinary year?

Mr Richard Brunt: Currently that would be around about 14,000 inspections a year.

Mr Jacobs: The healthcare sector generally is considered to be lower risk, well controlled risk and an area for lower inspections, isn’t it?

Mr Richard Brunt: It is. We prioritise work based on – our inspection work based on the risk profile of the industries that we regulate, and also where we have specific intelligence of businesses that aren’t performing or managing risk as we would expect. So healthcare settings are considered to be in many of those high-risk areas they’re better performing.

Mr Jacobs: No issue is taken with that, Mr Brunt, generally. We can see that, can’t we, because in the year prior to the pandemic, of those 14,000-odd inspections, 95 were in healthcare settings, that’s paragraph 87 of your statement.

Mr Richard Brunt: That’s correct.

Mr Jacobs: When the pandemic hit, the number of inspections of healthcare settings was 81. That’s paragraph 92 of your statement. How can it be in circumstances that healthcare workers are facing a new and significant risk – even before it hits our shores there’s reports of healthcare workers dying in China and Italy. Those healthcare workers know, indeed the public knows, that they are fighting it with serious problems with PPE and the like, there’s early reports of healthcare workers in the UK dying, how can it be that, in those circumstances, the number of inspections doesn’t go up and, in fact, goes down?

Mr Richard Brunt: I think inspection isn’t the only form of regulation. In that year, when the pandemic broke out, like every other work activity, we had to take stock of whether or not we were key workers and when to intervene and not intervene. We also have to consider the role of inspectors visiting places that there is high numbers of Covid patients, as whether or not we would become part of that vector.

But the key thing is to be able to regulate an industry, as I explained this morning, is as much about providing information, advice and working through others, as it is about inspecting. So to use the levels of inspections we did helps us understand that’s going on. We don’t have to inspect every premises to be able to provide advice to all of them.

Mr Jacobs: Not every premises, Mr Brunt, but the numbers were extraordinarily low, weren’t they? In fact, the HSE stepped back from its role in the healthcare sector of monitoring, of looking at what was going on in healthcare premises. That was just wrong, wasn’t it?

Mr Richard Brunt: You’re talking about a number of inspections, as if that’s the only means of providing information, so to say that the number of inspections reflect whether or not we stepped up or stepped back doesn’t reflect the input, the liaison we were having with the Department of Health, the health services and how that regulatory effect is going through others.

Mr Jacobs: If we look at some of those alternatives, Mr Brunt, one was spot checks and spot inspections. There were over 400,000 in your statement, that’s paragraph 207, but 483 of those were in healthcare settings, 0.1%. So it wasn’t the case, was it, that spot checks and spot inspections were really focused in any meaningful way on healthcare; do you agree with that?

Mr Richard Brunt: They were focused on Covid-19 across the whole of the GB regulatory regime, as indeed they should have been.

Mr Jacobs: Yes, but, in terms of focus on healthcare, we’ve heard lots of evidence about high death rates, high rates of Long Covid, PTSD and the like, in circumstances in which there are real profound problems in safety measures. Was there a fundamental difficulty, Mr Brunt, of the Health and Safety Executive, when we look at it realistically, just being absent?

Mr Richard Brunt: I don’t think so at all. I think we were playing a very significant role through those various channels and we were playing a role in a government national response to a pandemic. We don’t target specific sectors when a pandemic is happening right across all of them.

Mr Jacobs: Would it be fair to say, Mr Brunt, that when the Health and Safety Executive did inspect, on the few occasions it did, it found actually quite significant problems with health and safety practices in hospitals?

Mr Richard Brunt: I think we found a spectrum and, indeed, it’s reflected in my statement and some of the exhibits, that, when we inspected, we found differing levels of performance, we found things that we would see where good leadership was generally reflected in good standards, where leadership wasn’t being shown in the same ways and, indeed, was mentioned this morning, we could find lower levels of compliance in the non-clinical areas when there was good levels of compliance in clinical areas, so we found varied performance, as we do indeed across lots of areas that we regulate and, again, the proportionality is taking that learning and that knowledge and sharing it with those that need to use it so that they can improve.

Mr Jacobs: On those themes you describe, Mr Brunt, of the importance of leadership being present, non-clinical areas having lower compliance, it matches with accounts that the Inquiry has heard. But in your statement you describe December and January 2020 and 2021, 17 acute hospitals visited, and 12 of them received advice or written advice. Is that not the sort of valuable and important inspection that needs to be increased in the next pandemic, if we focus on learning lessons?

Mr Richard Brunt: I think, as I said earlier, the response has to be in the context of what we’re facing, so you can’t give a blanket response as to something that may happen in the future. It is certainly the learning that has to be taken into account.

Mr Jacobs: Mr Brunt, in the very short time I have left I’m going to ask about RIDDOR, okay? Rather than asking you about the wording of the guidance, what “reasonable evidence” does and does not mean, can I ask you this: in terms of an outcome, should a health and safety regulator want to know if a healthcare worker, who has been in contact with Covid-positive patients, has died; should they want to have a report to that effect?

Mr Richard Brunt: We have to look in terms of, as a regulator, we are regulating work activities, so to understand what’s happening and to be able to investigate those circumstances is important. It still comes down to our role in regulating the workplace and work activity. So, yes, we do need to understand if that work has led to a death, we need to understand that, and to be able to take the appropriate action.

Mr Jacobs: But –

Mr Richard Brunt: It is still a judgement of that business as to the effect of deciding whether that work activity was contributory and there was reasonable evidence of that.

Mr Jacobs: Mr Brunt, you’ve repeatedly referred to that exercise of judgement and in exhibits to your statement there’s stats of some hospitals in the entirety of the pandemic making one RIDDOR report as part of that judgement. Should that judgement, should the guidance as to that judgement not be changed so that RIDDOR reports are made?

Mr Richard Brunt: The duty on RIDDOR, and if we’re looking at the guidance generically –

Mr Jacobs: Sorry, Mr Brunt, I’m going to interrupt. Let’s focus on the next pandemic. So rather than the niceties of RIDDOR, let’s focus on what needs to happen in the next pandemic. Should it be the case that, where a healthcare worker dies of Covid, the health and safety regulator should be told about it?

Mr Richard Brunt: If that was caused by their work, yes, but just because a healthcare worker dies of Covid, as indeed if anyone else dies of Covid, I’m afraid to link that – or a RIDDOR report still has to be linked to that work activity.

Mr Jacobs: My Lady, I’m probably pushing your patience, can I ask just one –

Lady Hallett: I’m in a very generous mood today!

Mr Jacobs: Clearly that judgement is, with the nature of a pandemic, going to be sometimes difficult. But is it a problem that it rests exclusively with the hospital in the case of a hospital, rather than the information being provided to the regulator, so that the regulator can see the picture, rather than have a scenario where, in a whole pandemic, they get one RIDDOR report from a hospital?

Mr Richard Brunt: The duty under RIDDOR lies with the responsible person, that is clearly defined. So it imposes that duty so that they do apply their legal obligations of being able to understand what’s happening in their position. So for them, it is abrogating that duty as much just to report everything and not think about it, as it is to actually consider what’s happening in their workplace and coming to an opinion.

Mr Jacobs: I think that’s probably as far as I can take it.

Thank you, very much, my Lady.

Lady Hallett: Mr Jacobs wasn’t being rude. They all have limited time and that’s why he was –

The Witness: I understand, my Lady. Thank you.

Lady Hallett: Right, Mr Thomas, I think you’re next.

Questions From Professor Thomas KC

Professor Thomas: Good afternoon, Mr Brunt. Again, don’t feel the need to look in this direction.

Mr Richard Brunt: Thank you.

Professor Thomas KC: I’m representing FEMHO, the Federation of Ethnic Minority Healthcare Organisations. As you may know, FEMHO has been deeply concerned by the challenges faced by black, Asian and minority ethnic healthcare workers particularly during the pandemic, where issues around the adequacy and appropriateness of PPE and respiratory protective equipment were of paramount importance.

So let me just give you a little bit of context to the question that I’ve got for you. It’s this: in your witness statement at paragraph 301, that’s on page 66, so that’s INQ000347822 – that’s where the document’s found – you note that the chief executive of the NHS Trust asked the Health and Safety Exec to remove the requirement for fit testing and replace it with a fit check as fit testing was putting strain on resources.

Then further – between paragraphs 303 – you explain that the HSE could not provide a derogation from this requirement, as it would have led to inadequate protection for staff and undermined the regulatory requirements.

You further clarify that at paragraphs 304 to 306, where you say that the responsibility for addressing these supply chain issues rested with the employer, and that a fit check should never be used as a substitute for a proper fit test.

So, coming to the question. In the light of the significant challenges faced by ethnic minority healthcare workers, many of whom had higher failure rates in that fit test due to facial features and characteristics, cultural factors such as facial hair, and inadequate PPE provisions during the pandemic, question: to the extent that healthcare workers from ethnic minorities were subject to fit checking rather than fit testing, would you agree that this was an example of cutting corners that put those workers at increased risk?

Mr Richard Brunt: I think as we’ve said there, you’re absolutely right, if we’re going to use PPE, respiratory protection of that type, it does have to be fit tested to know it is offering that protection, and if that was not happening those employers were not meeting their duty.

Professor Thomas KC: So this is my final point, so just help me with this: we’ve heard so many stories about these issues and these problems, why didn’t the HSE do anything to address this issue to make sure that healthcare employers were complying with this requirement?

Mr Richard Brunt: The action we took was to make sure we were drawing this through the attention – through that supply chain, through the DHSC and the National Health – the health trusts to make sure they understood their duty and clearly, in the responses we gave them, that you cannot use RPE if it’s not been fit tested.

And you’ve mentioned specifically people with facial hair for religious reasons, and I know we were in correspondence with various organisations on that and the use of alternative forms of respiratory protective equipment when you cannot use an FFP type.

Professor Thomas KC: So, in a nutshell, you say the HSE was doing enough?

Mr Richard Brunt: I think we were doing what we needed to through those chains to make sure that those people understood what their duty was.

Professor Thomas: My Lady, thank you.

Lady Hallett: Thank you, Mr Thomas.

Mr Simblet.

I’m afraid everybody is coming from behind you.

Questions From Mr Simblet KC

The Witness: I’m being ambushed.

Mr Simblet: Good afternoon, Mr Brunt. I’m asking questions on behalf of the Covid Airborne Transmission Alliance. I think you had correspondence with various members of them during the pandemic. I’m not going to ask you about the correspondence, I’m asking questions on their behalf.

The first, I suppose it’s an obvious point, but the Health and Safety Executive would know that many activities carried out by healthcare workers involved being close up to patients and sometimes other colleagues, close quarters working; would you agree that would be known about and obvious?

Mr Richard Brunt: I’d agree, that is very obvious.

Mr Simblet KC: Thank you. It’s in that context that I want to ask a couple of questions about what the HSE knew about transmission and risk.

Could we have on the screen, please, INQ000269803, and then the second page of that. I’ve asked for paragraph 7 to be highlighted. This is an HSE document in which it is summarised what the risk factors for Covid-19 are.

We can see from that that (1) Covid-19 was known by the HSE to be an airborne disease; do you agree?

Mr Richard Brunt: We refer to aerosol as droplets and we refer to aerosol-generating procedures, so there’s a correlation there.

Lady Hallett: Sorry, the date of this document, Mr Simblet?

Mr Simblet: I can’t find the date.

Lady Hallett: Oh, I see. Right.

Mr Simblet: It’s one of the things – I was wondering if the witness knows the date, actually.

Mr Richard Brunt: I can’t –

Mr Simblet KC: I know you’ve been blindsided by it. All right.

The second point: infectious persons expel various containing aerosols, and that the concentration of these aerosols and risk is greatest within 1 metre. So would you agree with those propositions and those appear to have been known to the HSE?

Mr Richard Brunt: The information there, I think, is reflecting that totality of what was in the IPC guidance, so if there is an aerosol that is generated, that is one route. We talk about touching a surface that’s contaminated, and so on. So that range of transmission possibilities in the different circumstances is understood.

Mr Simblet KC: So within 1 metre, ie the sort of area in which healthcare workers work.

Now, in that context, I want to ask you something about what you understood about fluid-resistant surgical masks, and I think this morning in your oral evidence you made clear that these are medical devices, you wouldn’t call them PPE –

Mr Richard Brunt: Mm-hm.

Mr Simblet KC: – and it is your understanding, and was your understanding at the time, that such fluid-resistant surgical masks would not provide, in themselves, adequate protection in close-quarters working; do you agree with that?

Mr Richard Brunt: They’re not adequate protection for aerosols, they’re there for droplet protection, source protection. The fluid-resistance is in case there’s bodily fluids expelled towards the person that’s wearing them.

Mr Simblet KC: Thank you. Can I have a piece of your witness statement displayed, please, INQ000347822, page 85, and it’s paragraph 402. I think that’s coming on screen now. I hope it will be shown. Yes, so this is what you’ve put in your witness statement. You’ve explained what you just elaborated on there, and it’s particularly the last sentence I want to ask you about, because you put:

“However, there is a common misperception that they will provide protection against aerosols.”

My question is this: since you know that surgical masks do not provide adequate protection and that there is a common misperception, amongst others, that they do provide protection, why didn’t the HSE provide instructions that healthcare workers required respirators?

Mr Richard Brunt: I think that’s reflected in the IPC guidance, that where we believe there is aerosol-generating procedures they used FFP3 and, outside of those areas, that’s where they were using fluid-resistant surgical masks.

Mr Simblet KC: Related to that question, do you recall a meeting in 2022 where various people asked the HSE to give a clear and unequivocal message about people wearing FFP respirators, and some follow-up correspondence to that? Do you remember that being specifically requested?

Mr Richard Brunt: In answer to your question do I recall the meeting, I don’t.

Mr Simblet KC: Well, do you recall being asked by, I think it was the RCN and others for the HSE to send a clear message about that, and there being some discussions about that?

Mr Richard Brunt: I’ll be honest, I don’t recall the fine detail of if there was correspondence and so I’d need to refresh my memory.

Mr Simblet KC: In the time available, I don’t think we’ve got time to go through that. So I will move –

Lady Hallett: It’s not going to come out of your time, Mr Simblet, I’ll be generous with you too.

Can I just follow up a point being made by Mr Simblet. It’s a point Mr Simblet was making about the IPC or you made in your answer. If you know, as the HSE, that it is airborne, and if you know that surgical masks aren’t sufficient, you surely can’t, in accordance with your statutory duties, say, “Well, we’ll just follow whatever the IPC cell says”, could you? I mean, shouldn’t you then say, “Well, we’ve got a statutory duty to protect”, as Mr Stanton said, “750,000 healthcare workers”, shouldn’t you step in?

Mr Richard Brunt: I think that’s what we were doing at that time, in that the knowledge and evidence at the time, at the start of the pandemic, about routes of transmission was reflected in the IPC guidance. Had we thought that that was falling short of what we thought was going to be the exposure routes, we would have advised accordingly and stepped in.

Mr Simblet: But you were part of the – I mean, there was an HSE representative as part of the IPC cell, wasn’t there?

Mr Richard Brunt: Yes, we had input into that and we were there looking at the reasonable practicability of the precautions and being able to use those to satisfy the legal obligations under the Health and Safety at Work Act.

Mr Simblet KC: So to that extent, and picking up on the question my Lady just asked, the HSE was part of the IPC cell and in a position to pass on to the IPC cell those views as to what was required and what was insufficient, and in a position to say, actually, there’s a statutory duty to enforce this?

Mr Richard Brunt: We were inputting into that cell as to what was required, yes.

Mr Simblet KC: The document, my Lady, I’m assisted, it’s April 2020, the document to which I referred earlier, so right at the start of the pandemic.

Mr Richard Brunt: Could you repeat the question on that?

Mr Simblet KC: Well, I think I’ve asked my question. Sorry, Mr Brunt –

Lady Hallett: It was the one about the document summarising risk factors and that you knew by April 2020 it was an airborne disease.

Mr Simblet: Yes, you knew it was airborne, infectious persons expel virus-containing aerosols and the concentration of the virus is greatest, therefore, within 1 metre.

My final question is this: Covid doesn’t smell, it’s invisible, it’s silent, you can’t detect it by any normal non-laboratory means, so would you agree, as a health and safety expert, that there’s no realistic way that an individual healthcare worker could carry out their own individual risk assessment as to what equipment they would require when doing their job?

Mr Richard Brunt: I’d agree entirely but it’s not their responsibility to carry out a risk assessment, it’s their employer’s responsibility. We didn’t expect individual healthcare workers to be carrying out individual assessments.

Mr Simblet: Thank you very much.

My Lady, those are the questions I ask.

Lady Hallett: Thank you, Mr Simblet.

I think that completes the core participant questions.

Ms Nield: I think so.

Lady Hallett: Nobody is protesting.

Right, thank you very much, Mr Brunt, I’m very grateful for your help.

The Witness: Thank you very much.

(The witness withdrew)

Lady Hallett: Now, Mr Scott.

Mr Scott: Thank you, my Lady. May we please call Sara Gorton.

Ms Sara Gorton

MS SARA GORTON (affirmed).

Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you waiting, Ms Gorton.

Mr Scott: Ms Gorton, would you please give your full name.

Ms Sara Gorton: I’m Sara Gorton.

Counsel Inquiry: And would you please give your current role.

Ms Sara Gorton: So my job title is national secretary and I work for the trade union, UNISON.

Counsel Inquiry: I think as part of your role are you co-chair of the NHS Staff Council?

Ms Sara Gorton: So during the relevant period I was UNISON’s head of health and co-chair of the NHS Staff Council and the NHS Social Partnership Forum.

Counsel Inquiry: Thank you. I’m going to come back to those points.

I want to start effectively just before the beginning of the pandemic. You’ve set out in your statement a large number of concerns that the TUC have in relation to, I think you call it, the “funding crisis” in the NHS.

If I can just read you what’s part of the executive summary of the Module 1 report of the UK Covid-19 Inquiry.

It states:

“In 2020, the UK lacked resilience. Going into the pandemic, there had been a slowdown in health improvement, and health inequalities had widened. High pre-existing levels of heart disease, diabetes, respiratory illness and obesity, and general levels of ill-health and health inequalities, meant that the UK was more vulnerable. Public services, particularly health and social care, were running close to, if not beyond, capacity in normal times.”

You wouldn’t disagree with any of that, I presume?

Ms Sara Gorton: Not at all, no.

Counsel Inquiry: I want to focus your questions in relation to not so much staffing levels or the reason for staffing levels, but on your understanding of the impact of the pandemic on staff and the resilience that they were able to have as a result.

Were you aware of any pre-pandemic plans for how NHS staff would be used or deployed to respond in the event of a pandemic?

Ms Sara Gorton: So I think there are two or three broad points to mention here. So I think the first is that trade unions and myself weren’t deeply involved in the planning. You have the statement that we refer to in the witness statement, that the staff council put together, and this was –

Counsel Inquiry: I’ll come to that in a minute. This is I think around February time, maybe, the staff council statement; is that right?

Ms Sara Gorton: Produced at the end of January 2020.

Counsel Inquiry: But prior to that you weren’t aware of any kind of formal plans or anything along those lines?

Ms Sara Gorton: We weren’t involved in those discussions, no.

Counsel Inquiry: You’ve just referred to the staff council. Could you please describe what the NHS Staff Council is and who is involved in it.

Ms Sara Gorton: So the NHS Staff Council is the collective bargaining body. So it’s set up to bring trade unions and employers together with the Department of Health officials to maintain the contract of employment, the set of pay terms and conditions that are common to staff who are currently described as Agenda for Change staff, so these are all the non-medical staff in the NHS.

It also has a range of subgroups, such as the Health and Wellbeing Subgroup, where we interact with external bodies and look at issues like the health and wellbeing of the workforce of the NHS.

So it’s an opportunity to maintain that contract, to bring people together to try and service it, and to produce advice and guidance that goes out into the employing organisation, where it can be picked up and implemented by trade union representatives working in partnership with their employers in the NHS organisations.

It’s a UK-wide body, but within Scotland, Cymru, Wales, and Northern Ireland there are also separate bodies that look at the particular issue for those jurisdictions.

Counsel Inquiry: But it is – I know there is a different meaning in terms of partnership and a more formal kind of partnership arrangement, but the staff council is a kind of partnership between unions, employers and department officials; is that correct?

Ms Sara Gorton: That’s correct. It’s separate to the Social Partnership Forum.

Counsel Inquiry: Yes, yes.

If we can please go to INQ000339374.

I think this is the staff council statement that you were just referring to. Are you able to just remind me, I think you said the date, roughly when this statement was actually made?

Ms Sara Gorton: January 2020, I think.

Counsel Inquiry: Because we can see at the third paragraph:

“At the time of writing, cases and suspected cases of Covid-19 are being managed in specialist units.”

I presume that’s a reference to within an HCID setting at that point in time, so we can kind of identify the time as January from that; is that fair?

Ms Sara Gorton: That’s fair, yes.

Counsel Inquiry: I just want to understand a little about how this statement came to be made. Could you explain the process that led up to this?

Ms Sara Gorton: So this was the result of work mainly through that health and wellbeing partnership group of the staff council, and that is a body of – that’s made up of a mixture of trade union representatives. A lot of those people are people with a good grounding in health and safety, well linked in to trade union health and safety representative structures, working with employers to produce guidance, and, as you can see at the end of the statement, they’ve made reference to quite a lot of the evidence that was available at the time and being produced by the health protection bodies across the UK.

Counsel Inquiry: What was the intended purpose of this statement?

Ms Sara Gorton: So the purpose of the statement, I think it’s fairly clear in the – in setting this out at the start, that what we’re trying to do here is urge local partnerships, by which I mean employers and trade unions working together within employing organisations, to not only use this but to consult the latest advice and to work together to put in place the measures that are described in the guidance statement.

Counsel Inquiry: If we can just go down and have a look at some of those measures, please. Thank you. I don’t – there are … there are 12 on the pages that I have, and there are some further on. I’m not proposing to take you through all of them, but they cover issues such as communicating risk about transmission, identifying and mitigating risks arising from Covid-19, ensuring adequate PPE, making sure there’s sufficient fit testing, training for PPE, maintaining non-Covid services, allowing staff or making sure staff are able to raise concerns in a way that doesn’t impose any detriment, managing risks to vulnerable staff, e.g. those with suppressed immune systems, maintaining care for staff members.

When you read back this statement, what do you think when you actually look about whether you identified essential principles for how a healthcare system should have responded to a pandemic?

Ms Sara Gorton: I think most of the issues that we dealt with throughout the rest of the pandemic, from this point onwards, were rooted here. So all of the key principles to adhere to were set out. I think the question is to what extent those principles were able to be put in place is – you know, that’s – was – and how these were interpreted and implemented at a localised level was the major difficulty.

You can see here they focussed on making sure that people who are looking after Covid patients, who are working with PPE have access to lots of rest, the link between fatigue and burn-out, and you know from your own experience of the pandemic that that situation was not – you know, didn’t come to pass in the way that people were expected to work.

When you look at some of the evidence that we’ve provided in the witness statement, there were signs prior to the pandemic that people were already burnt out. We as trade unions had been raising the impact of the –

Counsel Inquiry: Sorry to cut across you, Ms Gorton, I will be coming to those points. I want to focus on – I think you were calling them the key principles here –

Ms Sara Gorton: Yes.

Counsel Inquiry: – because one point before I forget is you were talking about all the key principles were set out. Do you think in terms of an early stage or, dare one say it, a kind of plan, in the loosest possible sense, of how to respond to a pandemic, is essentially set out in very broad form but set out in this statement?

Ms Sara Gorton: I think the principles are here. Putting them in place is obviously – requires further work at local level, but the principles, yes, I would agree.

Counsel Inquiry: On reflection, do you think there were any principles that you missed?

Ms Sara Gorton: I think all of the principles are in here. I think looking at that second bullet point, there obviously needed to be a lot more guidance about identifying who might be more vulnerable and anticipating that. So thinking –

Counsel Inquiry: That’s the delivery of this principle, is that what you’re saying?

Ms Sara Gorton: Exactly.

Counsel Inquiry: You’ve got the principle right, how much then delivered is a different matter?

Ms Sara Gorton: That’s right, and all the guidance that might need to sit behind it.

Counsel Inquiry: So in terms of identifying the key principles of a pandemic response and particularly in the early stages of Covid-19, this had been foreseen by a group involving the unions, NHS employers and Department of Health officials in January 2020?

Ms Sara Gorton: I think so, yes.

Counsel Inquiry: I’ll move on now to some of the other points about how they were necessarily implemented but, firstly, what was the resilience level, do you think, of, not the system, but of the NHS staff themselves, whether medical, non-medical, the whole panoply of the members of the NHS. How were they able to withstand a pandemic in January 2020?

Ms Sara Gorton: So this was what I was picking up in response to your earlier question, that there were signs going into the pandemic for the few years in the run-up that the workforce had been largely overlooked and neglected in favour of a government and policymakers who seemed to be obsessed with structure, system architecture, rather than addressing the needs of the workforce. In this –

Counsel Inquiry: Sorry, I phrased the question very badly. It’s their own individual capacity. For example, the TUC report from 2020 entitled “The NHS workforce crisis, a decade in the making” is talking about in 2019 high levels of work-related stress and then it talks about work-related stress. You have the UNISON Safe Staffing forum in 2020 talking about whether NHS staff have sufficient skill mixes on their team.

In terms of that personal capacity, rather than the system’s, in terms of that personal capacity, do you think, how was the NHS workforce at that point?

Ms Sara Gorton: Well, that survey that you just referred to, if you look at that, it paints a picture of people who describe themselves at breaking point. So it talks about the impact that people described just in that one snapshot survey of not having – not having enough staff, not having access to the breaks they need in order to work the shifts, it talks about the pressures that they feel under to accept more work in order to cover the gaps, and it talks about the personal impact that they felt at the time from feeling that they weren’t able, they didn’t have what they needed in order to deliver the services they wanted to the standards they wanted to deliver them to patients, and it describes people feeling very vulnerable, talking about turning up for work dreading their shifts, not being able to be hydrated properly during their working hours, and feeling constantly under pressure while they were there, and that’s not – that’s not a description of a resilient workforce ahead of a major crisis.

Ahead of a major crisis, you want people to feel well motivated and well rested and able to deal with it, and the signs were there in that report, and other evidence, that this was not the condition of the NHS workforce.

Counsel Inquiry: I just want to bookend that with what you set out in your statement about March 2022, about staff wanting to leave the NHS, was the pressure that they felt at not being able to deliver the appropriate quality and standard of care, that staff were traumatised by the ability to deliver care at the level and quality that they’re required to.

Again, leaving aside considerations of funding, is there anything that can be done to prevent staff leaving because of those concerns?

Ms Sara Gorton: So working conditions are everything. You can see in the statement the themes that workers were raising through their unions about not enough access to rest breaks, about not enough access to the rest and recuperation they needed, and trade unions knew – as early as May 2020, we were raising issues at a central level to call for support packages to be put in place to allow the rest and recovery from dealing with that first phase. As it turned out, that was a hiatus rather than an end, as we might have imagined at that point, but the signs were there that the workforce were already suffering and, by the period that you refer to, by 2022, it was really evident that that support hadn’t been provided in sufficient measure to make people feel resilient enough and to make them motivated to want to stay in their jobs.

Counsel Inquiry: You say that you have been raising issues from May 2020, and then you talked about the hiatus, was anything done during that hiatus to help the healthcare workers who had been through that initial wave?

Ms Sara Gorton: So in the statement you’ll see the pieces of work that trade unions contributed to over that time, a lot of work was done to set up what was called health and wellbeing portals, to provide access to the sort of emergency mental health triage, hotlines and on the spot occupational health type interventions, and you can see some of those described in the statement.

But what’s really clear is that the – what health workers needed was an opportunity for rest and recuperation and, with the levels of staffing in the NHS as they were ahead of the pandemic and compounded by the pandemic, that was really difficult to achieve. So although there were measures put in place, it’s clear that they – you know, it was going to be a really uphill struggle to try and provide support in enough measure and, to an extent, a lot of the impact will take a long time to work through.

Counsel Inquiry: In terms of working through, you do say that the impact of the pandemic on recruitment and retention in healthcare may not become entirely clear for some time. Even now, is it starting to become clear?

Ms Sara Gorton: So, recruitment and retention in the NHS was, I mean, it’s a very complex web and it’s difficult to pick apart exactly what part the pandemic had in this. But you can see from the evidence that we’ve provided that, by 2021, one in five health workers were telling us that they were seriously or very seriously considering leaving their job in the NHS. So it had a profound impact on those workers and in the ability of the NHS to recruit staff.

That came on top of several factors leading up to the pandemic which had made it more difficult to retain staff of the NHS. Lots of those are referred to in the statement, so I won’t go into them in detail, unless you wish me to at this stage, but it’s very clear that the effects of having low staffing going into the pandemic had contributed to the way people felt approaching the pandemic, that that worsened during the pandemic and, as a consequence, it was more difficult for the NHS to recruit and retain staff.

Staff morale seems to be levelling out to some extent, if you look at the latest staff – NHS staff survey for England at least, confidence does seem to be restored in some areas but it’s – the pandemic had a very marked impact on health workers, for all the reasons I’m sure you will be talking about to me and other witnesses.

Counsel Inquiry: In terms of the steps that were taken during the pandemic to increase numbers of healthcare workers, we had the kind of reserve scheme that was brought in, there was the student registration scheme, issues like that across all different types of healthcare workers. From your staffing perspective, what were the merits or the benefits of those schemes, and are there any issues that the Chair should look at in terms of any improvements that could be made to those schemes moving forward?

Ms Sara Gorton: So, I personally, and to my knowledge, the trade union structures weren’t engaged proactively on the decisions to set these schemes up. The point at which I came into contact with them, the core decisions about whether those approaches should be taken had already been made. So we engage –

Counsel Inquiry: Sorry, presumably you didn’t think it was a bad thing to put those in place?

Ms Sara Gorton: Well, it’s not that they were a bad – any of those suggestions were bad, it’s that there are practical and feasibility issues that I think would have been – we could have pointed out if those had been discussed with us in advance.

So, for example, on the Nightingale hospitals, you know, it was very, very impressive that these buildings were acquired and converted so quickly, but I think in the statement we refer to a King’s Fund report that kind of points out some of the practical and feasible difficulties in using them for the purpose that they were – for which they were set up, such as the difficulty transporting people between hospital sites and the Nightingales and, for our part, I think the trade unions would have been asking questions about how the staffing arrangements might have been set up and working. So, as a – you know, was there the capacity to deliver them anyway, given what we knew about staffing in the NHS? What would the arrangements have been between different providers? Some of those issues we were able to work through. Those happened at a much more localised level, but they could have been anticipated in advance. So it’s those sort of issues where the principles seem right but, actually, the ability of those schemes to really deliver was hampered by a range of factors.

Counsel Inquiry: I’m going to put you on the spot a fraction. You say they could have been foreseen. Had you foreseen those difficulties just in and around the time that they were being established? And if so, did you communicate those difficulties?

Ms Sara Gorton: I do remember having lots of conversations about the reserves scheme, and in particular what the people that were signing up – there were lots of very well meaning people who wanted to help out, so the limits about what those people could do, I think I do recall that we had conversations through trade union structures and I personally had conversations about those – about how those people could be used. I think you’ve got evidence in the witness statement about suggestions that trade unions put forward about how the – those volunteers could be used to supplement the testing –

Counsel Inquiry: Yes.

Ms Sara Gorton: – process. So there were some practical suggestions that we were putting forward at that time. But, as I say, we weren’t proactively engaged in the discussions about them at the time those ideas were being developed.

Counsel Inquiry: Okay. So in terms of those who were deemed vulnerable or who were working from home, do you think that sufficient use was made of the skills and capabilities of people who were vulnerable or working from home? For example, could more use have been put into NHS 111 or triaging or using those skills remotely in any way, shape or form?

Ms Sara Gorton: I think the only comments I can offer on that topic are about the impact that suddenly converting to having to run services from home had on the people that I talked to, the health workers I was working with. So most of these were people who do jobs where their job satisfaction, their whole role is in providing face-to-face services, the bond they feel with their patients is really deep and is part of their work, and in the scramble to turn their services into Covid-safe services, a lot of that was lost, and that had a profound impact on the job satisfaction for those people. They felt it had a profound impact on the services that they were able to provide.

And if you think yourself about the way that we suddenly had to adapt and find new ways of reaching people through our computer screens and our phones, that’s very different from the services that had previously been provided by staff working in therapy services. If you imagine being an occupational or a physiotherapist, suddenly having to deliver interventions through a computer screen, that had a very – a very big impact. So I think that’s the extent of the response I can give you on those issues.

Counsel Inquiry: Well, in terms of people who are – obviously the ideal is that people would not be moved out of their patient-facing roles. In the event of a future pandemic, say that was unavoidable for a myriad of reasons, is it going to be beneficial for those workers – and for the NHS or HSE – to make use of those workers, and is it also going to be beneficial for them that use is made of them if they have to be at home, rather than not being able to assist in any way?

Ms Sara Gorton: Completely. And I think in the statement we do refer to evidence that we heard from people who were available for work but not called upon, and those people felt – you know, felt disenfranchised and forgotten. So I think for future learning it’s very important to consider how the planning can take those people into account.

You know, I think there are probably lessons about fragmentation that may need to be looked at. Certainly the fact that the test and trace effort was being run separate to the health service probably meant those people couldn’t be integrated into that effort in the same way. I’m sure you’ll have other expertise on those matters.

Mr Scott: My Lady, I think that may be a convenient moment for the afternoon break?

Lady Hallett: Certainly. I shall return at 3.10.

I hope you were warned, Ms Gorton, that we take breaks.

(2.59 pm)

(A short break)

(3.10 pm)

Lady Hallett: Mr Scott.

Mr Scott: Thank you, my Lady.

Ms Gorton, you were talking earlier on about the partnership – sorry, you referred earlier on to the partnership. I would like to move to that now.

The NHS Social Partnership Forum, can you describe what that is, please?

Ms Sara Gorton: The Social Partnership Forum body is an England-wide structure that brings together trade unions with employers and policymakers through a central body called the Social Partnership Forum. We have our terms set out in a formal partnership agreement that all parties signed up to, and we discuss workforce policy matters through a series of formal meetings with a wider group meeting that is held, normally quarterly, chaired at ministerial level.

Counsel Inquiry: Okay, so I think the way that you say it in your statement is that it ensures ministers, civil servants and system leaders are made aware of the real-time concerns of healthcare staff?

Ms Sara Gorton: That’s true.

Counsel Inquiry: Were there equivalents in Scotland, Wales or Northern Ireland?

Ms Sara Gorton: Yes, they’re all structured slightly differently but there are bodies across the whole UK that bring trade unions and policymakers together.

Counsel Inquiry: There was a separate group, the Covid-19 SPF – I’ll just shorten it to SPF, if you don’t mind – engagement group, which met from 30 March, and weekly initially, until July, when it started to meet fortnightly, which provided detailed conversation upon topics like guidance policy positions. Is that a summary of the engagement group?

Ms Sara Gorton: Yes, so at the start of the – the start of the lockdown, we adapted the Social Partnership Forum structures and those loosely fell in three different groupings. So we created a new group, the Covid Engagement Group that, as you say, met weekly, and we had a standing agenda and you’ve got a sample in the – in my statement of some of the issues that were regularly discussed through that meeting, topics like PPE, testing, vaccines, as that was added to the – that was added to the suite of measures, as we went on.

So that was the Covid Engagement Group. We also used social partnership structures to subsume some of the work of the staff council which I talked about earlier. So we had been able to influence, through trade union routes, a set of temporary terms and conditions that were put in place to support the safe working and to prevent financial detriment on the health workforce, for people who were – had to work during the pandemic or were in, you know, a variety of different categories, like self-isolating, shielding, et cetera.

So we also had a standing terms and conditions group that met – I think at certain points they were meeting several times a week in order to take forward the technical work, and then we were able to convene one-off workshops or meetings on specific topics, and in the statement I give a few examples of the kind of topics we discussed.

Counsel Inquiry: So really it gave you a very good close access to a number of central decision-makers about the healthcare system, dealing with important topics and policy points; is that it, in a nutshell?

Ms Sara Gorton: It did bring us into contact with people. I think two points that I think are probably important to make: one is that obviously the range of topics that we were discussing and the busyness of the people we were discussing them with, obviously we did our best, on the trade union side, to marshal our resources properly and to use that time as efficiently as we could. So we would have pre-meetings, for example, before every meeting, knowing who was coming, so that we didn’t duplicate questions, that we asked things as efficiently as possible, and didn’t waste the time of people who were managing big parts of the pandemic response.

But the other point I would make is that the really critical work, to keep workers safe and interpret all the central guidance, happened within – at organisation level, so this was the work that trade union representatives in every workplace did with their employers, in order to take what we were doing at national level, take that guidance and convert it into measures to keep people safe, to interpret all of the – all of the information that was coming out and, most importantly, to feed back up to us issues where guidance was being received, you know, and wasn’t clear, or where there were issues where there was confusion or clashes, perceived clashes, between different pieces of advice.

Counsel Inquiry: Just to follow on though with that thread, was there a difficulty in doing that because there had effectively been a loss of the middle layer of engagement?

Ms Sara Gorton: So the structural reforms that had taken place in the NHS over the preceding decade had stripped out the sort of middle layer in the NHS, so the layer that was previously there in England and filled by the strategic health authorities. And those were a route often for trade unions to have intervention and engagement with employers and with officials over workforce policy matters and practical measures.

So that layer wasn’t there, so that had denuded systems and structures to an extent, but the same pressures that I talked about that were on health workers, you know, trade union representatives are health workers themselves in the NHS, so the trade union structures had also been reporting through the staff council for a few years before the pandemic that people were saying to us that they were finding it more and more difficult to get access to time to participate in those structures. So there were signs of strain on capacity from the trade union side as well, and it was more difficult, particularly for people in clinical roles and from team leader roles, to participate in partnership working at trust level.

Counsel Inquiry: Ms Gorton, you have an excellent habit of foreshadowing all of my questions, so I’m just going to ask you about some of the conversations that were taking place.

If I could please have up on screen, and I hope I have the right number here, INQ000119027. Thank you.

So this is the SPF wider group, this is the group as opposed to the forum; is that right? So the slightly more detailed analysis.

Ms Sara Gorton: So the wider group is wider because it involves more people.

Counsel Inquiry: Right. Thank you.

And this is 3 June 2020. If we can go down, please, to page 3, and it’s that bottom header:

“BAME Strategy/Action Plan …”

Then:

“What response can they make to the disproportionate impact due to Covid?”

So this is a presentation from people from NHSE; is that correct?

Ms Sara Gorton: That’s true, yes.

Counsel Inquiry: So it’s been recognised, even in June 2020, that this was an issue, about protecting, engaging and supporting staff, those were the key questions.

Then if we can just go over the page, please, and if we can just, please, go to the fourth paragraph, if that could be highlighted. So this is the note of the meeting:

“Aware of the trust and psychological issues that have arisen amongst BAME colleagues due to support and PPE and other issues. These colleagues do not trust us. They are looking to their communities for support and we need to go there to assist. It is not a one size fits all approach. Some of the engagement has led to cultural awareness of some of the policies and procedures impacts on some colleagues …”

That seems quite an open and honest assessment, that NHSE had lost the trust of a number of healthcare workers. Was that the impression that you were taking from those meetings at that time, in June 2020?

Ms Sara Gorton: I recall this conversation very well, and it was an honest response to the issues that were coming through in the data and the issues that we were referring as trade unions as well. So I think your categorisation was correct, yes.

Counsel Inquiry: What was done after June 2020 to rebuild that trust? Maybe you’re not the correct person to answer this question, but from your perception.

Ms Sara Gorton: So I was going to say, you know, I’m not the person whose trust was breached, and, you know, you will be able to follow up with others. But the –

Counsel Inquiry: Well, can I ask it a slightly different way. From your perspective, from your role with the staffing, was enough done to rebuild the trust?

Ms Sara Gorton: I was at an event that the TUC held last week where we had the opportunity to talk to staff who had been through the pandemic, staff from black backgrounds, and the feeling in the room was clearly that not enough had been done, either before the pandemic or since.

I think what you’re seeing on this set of notes is that there is a recognition of the need to look at these issues. I think you will need to take further evidence from people better suited than me to tell you how successful that has been, but I think I refer in the – elsewhere in the witness statement to a set of evidence that was given to the EHRC and to other bodies during the pandemic about the particular impact on black staff. And, you know, the issues that are set out here are specific to looking at some of the practical effects of the pandemic, but they don’t reach into some of the concerns about structural racism that had been raised prior to the pandemic and still persist beyond it.

Mr Scott: Okay.

Ms Gorton, given your very helpful statement and evidence today, my questions are covered.

My Lady, I’ve no further questions.

Lady Hallett: Thank you very much, Mr Scott.

I think there are some core participant questions. Who is going first? Ah, Ms Hannett. There you are.

Questions From Ms Hannett KC

Lady Hallett: The questions are likely to come from either behind you or to the right, could you make sure that you do speak into the microphone because that’s where we get your evidence recorded. Thank you.

Ms Hannett: Ms Gorton, I appear on behalf of the Long Covid groups and I want to ask you a couple of questions arising out of a letter sent by healthcare unions to the Prime Minister, Boris Johnson, on 18 February 2021.

Please could we have INQ000114832 on the screen. Ms Gorton, for your ease of reference, I think that’s also at tab 15 of your bundle. Thank you. You see the date is at the top, 18 February 2021, addressed to the Prime Minister and the health ministers of each of the four nations.

The title you will see is “Protecting healthcare workers” and, at the bottom of the first page, the last paragraph:

“Health and care workers are at three to four times greater risk of developing and dying from Covid-19 than the general public.”

Over the top of page 2:

“… now no scientific doubt that Covid-19 spreads via the airborne route.”

The third paragraph:

“The current UK Infection Prevention and Control … guidance … does not accurately depict the airborne risks …”

The letter then sets out five potential courses of action to be taken. Then the paragraph immediately after those five points, towards the bottom of page 2:

“We have addressed this letter to you because your agencies and departments have not yet sufficiently responded to our concerns. While we are aware that a review of the IPC guidance has been carried out, we cannot agree with its apparent conclusions that the guidance should remain the same.”

Questions following on from that document: why did the TUC not have confidence in the review of the IPC guidance?

Ms Sara Gorton: So I think the issues around PPE and around the IPC guidance that I refer to in the statement flag up, firstly, the impact – the practical impact of having a set of guidance that’s constantly updated. The trade unions worked really, really hard. We knew right from the start of the pandemic that if we had all worked separately and all re-interpreted the guidance and put those out through our separate networks, that would be 17 different sets of contrary guidance.

So we worked really hard to work together, not only producing advice as joint unions but actually making sure that, wherever we could, we were a reputable source of information and referring people back to the original source documents, so the official IPC guidance and, in particular, the PPE specifications that were laid out in those, and worked with employers to supplement those through frequently asked questions to respond to issues of detail. And we produced those, and they were checked by the IPC specialists.

Now, obviously, there were areas where the trade unions had been reflecting either confusion amongst the workforce with the status or the content, or where there were gaps. So early on in the pandemic, the – there was no reference to the situation that needed to be adopted in either community settings or ambulance settings, and we were hearing from workers in both of those settings that they were being expected to go in and out of homes where potentially they were being exposed to people who were Covid positive and, if you remember, at that time, there was no testing, so they had no way of telling, people had no way of telling, other than having symptoms, whether they were Covid positive or not.

So it’s gaps like that that we were able to flag. But this particular issue of the airborne nature was a gap that lots of professional bodies had been raising. I think it’s important to note that the trade union structures themselves are industrial relations structures, so we don’t have a role in setting or challenging scientific evidence. But I do remember this being a very hot topic, and what we did through trade union routes is that we were able to identify to policymakers where this was a gap and to bring people together with policymakers to try and address it.

And my recollection is that, on this particular issue, we had a specific workshop convened through the Social Partnership Forum to bring together some of the professional bodies that were raising these issues around ventilation, around the airborne transmission route, together with the experts from Public Health England and other bodies to discuss the guidance.

So our role was to flag the gaps, to identify where there was confusion, but it was very important to the trade unions that we were seen as a reputable source of information and that we were there to flag up where the guidance had gaps and needed to be supplemented with other advice, and this issue was one of those – was one of those gaps that was very, very clearly identified.

Ms Hannett KC: Ms Gorton, that’s helpful, thank you. Can I just check that the points at bullet point 1 to 5 of that letter reflect the position of your union in February 2021?

Ms Sara Gorton: So I think if you look at the signatories of the letter, that grouping is a group of professional bodies who have got specialisms in respiratory issues and in ventilation specialisms. That’s not my own union’s position, but we raised suppose issues through Social Partnership Forum structures.

Ms Hannett: I’m grateful, Ms Gorton.

Lady Hallett: Thank you, Ms Hannett.

Mr Wilcock?

Questions From Mr Wilcock KC

Mr Wilcock: Thank you, Ms Gorton. I represent the Northern Ireland Covid Bereaved Families campaign and I think it’s right that your union, UNISON, has 50,000 members in Northern Ireland, so you have some familiarity with the situation there.

In your evidence this afternoon and in your statement, you spoke of the positives of the social partnership system which, as I understand, is primarily an English NHS system, but there are equivalents in the devolved nations. You mentioned those positives, including the fact that they enabled unions to ensure that ministers, civil servants and the system leaders were made aware of the real-time concerns of healthcare workers.

Are you able to give us any examples of how the system could have worked better in England, first of all?

Ms Sara Gorton: So I think my reflection on partnership as a principle is that it works best when people listen and then take action, and I think the statement identifies some areas where unions might have been saying things but they weren’t necessarily acted on, and there were some clear policies like vaccination, as a condition of deployment, where unions had been advising a particular course of action would be detrimental to a good vaccination campaign, for example.

I referred earlier to the stripping out of that middle layer of the contact structures, and I think that – that means that, without that middle layer, either issues are more frequently raised, fast-tracked either through to NHS England through employer structures or through to people like me and my colleagues in sort of UK trade union structures, or, what’s most likely, not raised at all.

So I think you do miss out on those, and I think the lack of involvement in the planning, particularly – you know, I was thinking on the way in about previous experience in the run-up to the – I can’t remember the terminology, I think it was H1N1, the bird flu campaign, and I think we had quite a lot more involvement in the planning stages prior to that than I recall in Covid.

So those are the three areas that I would just flag. Partnership working is only as good as the people that – and the trust that you can generate in doing it, and it is dependent on those relationships that are cultivated. What we did at national level, you know, was set out opportunities for proper partnership working at local level, but that feedback loop was rarely closed.

Mr Wilcock KC: If I can stop you there, only because I’m obviously representing families from Northern Ireland, and you said a lot of it depends on the trust that exists, and we know that the healthcare system and the political system in Northern Ireland is different. Are you able to make the same sort of comments but this time specific to the situation in Northern Ireland?

Ms Sara Gorton: So I was chair of the English partnership structure, so I wouldn’t want to speak for colleagues in Northern Ireland. I know there’s some reference in the statement to Northern Ireland but very happy to address specific questions in writing afterwards through those colleagues.

Mr Wilcock: We might take up on that. Thank you very much.

Lady Hallett: I’m more than happy you should, Mr Wilcock, if you decide you want to.

Mr Wilcock: Thank you.

Lady Hallett: Ms Sen Gupta, I think you are – where are you? There you are!

Questions From Ms Sen Gupta KC

Lady Hallett: Can you see, if you look –

Ms Sen Gupta: I can see Ms Gorton. My Lady, I’m sorry that I’m not directly –

Lady Hallett: Don’t worry, I’ll survive.

Ms Sen Gupta: Ms Gorton, I represent the Frontline Migrant Health Workers Group, and we have been given permission to ask you a few questions which relate specifically to the position of Filipino healthcare workers.

First, I’ll provide some brief context for the questions. Filipinos are the third largest national group in the NHS, after British and Indian, but official data gathering does not include Filipino as an ethnic group for monitoring. The significant and disproportionate impact of Covid-19 on the Filipino community has been referred to by community organisations such as Kanlungan.

In the first months of the pandemic, up to May 2020, Filipinos accounted for only 3.8% of the nursing workforce but 22% of Covid-19 deaths among nurses.

At paragraph 135 of your statement, you refer to the government’s awareness of the potential disproportionate impact of Covid-19 on black, Asian and minority ethnic workers from a relatively early stage of the pandemic, and you also there refer to recognition of an urgent need to act to mitigate this impact from at least 6 May 2020.

Given your experience in advocating for NHS health staff, are you aware of any actions that were taken by NHS management during the relevant period for this module, which is 1 March 2020 to 28 June 2022, to monitor and/or address the disproportionate impact of Covid-19 on Filipino nurses?

Ms Sara Gorton: So I think the two aspects I would refer to, and I think are covered in the statement, are that from that upon onwards, so from May/June of 2020, there was a re-engagement with that principle that’s set out in that early staff council statement of the need for risk assessments, and – so I am aware, we were asked to contribute to a – to the provision of very specific risk assessment tools that were put together specifically to address issues of disparity, and there’s evidence in the statement of the work of the – through the Social Partnership Forum to provide input into that.

So the principle of risk assessment was that people’s individual circumstances should be taken into account, so not just a tick box that was done looking at somebody’s work environment, but actually taking their wider experience into account.

So things like taking into account how people travelled to work, their living circumstances, their family circumstances, et cetera, as well as looking at other factors like other – whether people had other health conditions, as well as the environments that they were working in.

So risk assessments was one area where we know that piece of work was stepped up and the figures that we were given, or we were –

Ms Sen KC: Let me take this opportunity just to focus on the question that I was asking, which was about monitoring and addressing the disproportionate impact specifically –

Ms Sara Gorton: This is what I was coming to, because we were given – we were asked to participate in the production of the tool, the risk assessment tool, and we received some information about compliance with the risk assessment tool. So I think at one point that I refer to in the statement we were assured that 95% of trusts had completed their risk assessment processes. But what we asked for was information coming back to us about what was happening as a consequence of that, so what had changed for those people as a consequence of having those risk assessments. And that’s the type of information that we didn’t get back.

So yes, there was work done, but I’m not aware of – and we didn’t get – responses to questions about what had happened as a follow-up.

The other aspect of work that was – that I’m aware did take place and into which trade unions had some input was the matter I referred to earlier about setting up of the health and wellbeing portals and the helplines, and I know that there were conversations about providing culturally specific elements of that, of that helpline services. So those are the two areas of provision that I’m aware that NHSE put in place.

Ms Sen KC: Thank you, Ms Gorton.

Is the disproportionate impact of Covid-19 on Filipino nurses an issue that was specifically raised by the TUC or UNISON with NHS management during that relevant period?

Ms Sara Gorton: I do remember us talking about the disproportionate impact on black staff in general, and I remember specifically in relation to the issue of the helpline discussions about impact on Filipino nurses, and other Filipino workers. But beyond that, I can’t – I can’t recall specifics.

Ms Sen KC: Ms Gorton, Filipino nurses wouldn’t come under the categorisation of black staff, I’m asking you specifically about –

Ms Sara Gorton: Sorry, I should explain, I’m using black in the way that UNISON defines black, so within the broader definition of black and minority ethnic staff.

Ms Sen KC: Looking to the future, Ms Gorton, do you agree that the inclusion of Filipino as a separate category of ethnic group in equality monitoring would assist in preventing and addressing such issues in the future?

Ms Sara Gorton: I can’t offer a view from my own organisation, but personally it would certainly give visibility, yes.

Ms Sen Gupta: Thank you very much.

Thank you, my Lady.

Lady Hallett: Thank you, Ms Sen Gupta.

That completes the questioning for you, Ms Gorton. I’m extremely grateful for your help, and I have got your written statement and I promise you, people always think the Inquiry is only about the oral evidence. It’s not, it’s about the oral evidence and the written material, so I can assure you, don’t think on the bus on the way home, “Oh my goodness, I wish I’d said that”, because I will take it all into account.

Thank you very much.

(The witness withdrew)

Lady Hallett: Right, I shall return for a 10.30 start on Monday, 16 September.

(3.42 pm)

(The hearing adjourned until 10.30 am on Monday, 16 September 2024)