25 September 2024

(10.00 am)

Ms Carey: Good morning, my Lady. Please may we call Professor Sir Gregor Smith, who will affirm.

Professor Sir Smith

PROFESSOR SIR GREGOR SMITH (affirmed).

Questions From Counsel to the Inquiry for Module 3

Lady Hallett: As I said to your colleague, welcome back.

Professor Sir Smith: Thank you.

Ms Price: Professor Smith, could you give us your full name, please.

Professor Sir Smith: My name is Gregor Ian Smith.

Counsel 3: Thank you for providing a witness statement for this module of the Inquiry, which is dated 21 February of this year, INQ000484783. I understand you are familiar with that statement and you have a copy of it in front of you, is that right?

Professor Sir Smith: I am familiar with it and I do have a copy.

Counsel 3: Starting, please, with your professional background. You are a general practitioner, is that right?

Professor Sir Smith: My speciality in medicine is general practice, yes.

Lady Hallett: Can you have a speciality in general practice?

Professor Sir Smith: You can, yes. It is a general speciality but it is nonetheless a speciality.

Lady Hallett: I was only teasing.

Ms Price: Prior to taking up an advisory role to the Scottish Government, you were a medical director for primary care in NHS Lancashire – in Lanarkshire, apologies.

Professor Sir Smith: I was, yes, I was medical director for primary care in NHS Lanarkshire for five years.

Counsel 3: In 2012 you became a medical adviser in primary care to the Scottish Government?

Professor Sir Smith: I did, yes.

Counsel 3: Is it right that you became Deputy Chief Medical Officer in 2015?

Professor Sir Smith: That is correct, yes.

Counsel 3: You were the interim Chief Medical Officer from April 2020?

Professor Sir Smith: From April 6, 2020. Yes, I remember the date very well.

Counsel 3: Until December 2020, when you became the Chief Medical Officer?

Professor Sir Smith: That is correct.

Counsel 3: And that’s a role you continue to hold?

Professor Sir Smith: Yes.

Counsel 3: Turning, please, to the role of the CMO in the Scottish healthcare system response to the Covid-19 pandemic. As CMO you lead the CMO Directorate, is that right?

Professor Sir Smith: That’s right.

Counsel 3: You describe your role and that of your team as independent clinical advisers to government. You also say that where a decision taken by Scottish ministers is likely to impact upon the health of members of the public, Scottish Government processes ensure that clinical views are sought at an early stage.

In the context of the Covid-19 pandemic, did this mean that once you took up the role of interim CMO in April 2020 you regularly attended Scottish Government cabinet meetings?

Professor Sir Smith: So, to deal with the different parts of your question, then yes, your interpretation is correct. And my experience of 12 years of working in Scottish Government is that there is early and frequent involvement of clinical advisers in the formulation of policy. The role of myself and my team is to be able to provide that independent advice to officials and to ministers when it is requested, and as part of the response to Covid-19, I gave regular updates by attending cabinet each occasion.

Counsel 3: And it is right that you also attended the Scottish Government Resilience Room?

Professor Sir Smith: That is correct yes.

Counsel 3: You have very helpfully exhibited to your statement a list of occasions on which you attended Scottish Government cabinet meetings. It appears from this that you attended on a weekly basis between April 2020 and April 2023, is that right?

Professor Sir Smith: I think that is accurate, yes.

Counsel 3: You say you attended the majority of Scottish Government Resilience Room meetings. How often did those meetings take place?

Professor Sir Smith: The resilience meetings took two forms. They took meetings primarily for officials or primarily for ministers supported by officials. During those meetings my deputies tended to attend the officials meetings and I attended the ministerial meetings. There was no regular – a regularised meeting schedule. Instead, the Resilience Room met when it was decided that it was necessary for it to meet.

Counsel 3: Is it right that at cabinet meetings you provided verbal updates on the epidemiology of the pandemic?

Professor Sir Smith: That is correct, yes.

Counsel 3: You describe your approach to these verbal updates at paragraph 10 of your statement. You aimed to explain and translate clinical and scientific advice to enable Scottish ministers to understand it and make decisions?

Professor Sir Smith: That is correct. The aim of these updates was to try to enable any decision-making which was to take place at that cabinet to be in the context of what the latest epidemiology in Scotland was suggesting and also to provide information or knowledge of recent breakthroughs or recent evidence that was coming to light in relation to the Covid response, both within the UK but also internationally, where that was possible, as well.

Counsel 3: You explain in your statement at paragraph 13 that ordinarily when advising ministers the CMO would base that advice on trusted sources of evidence such as published peer-reviewed journals. In a novel situation such as Covid-19, the CMO is forced instead to assess whether the evidence that there is is of sufficient quality for the purposes of decision-making.

Can you explain, please, how you go about this task and how you express the level of confidence in the available evidence to ministers?

Professor Sir Smith: So this point and for many, many months of the pandemic response there wasn’t an evidence base which told us how to go about responding to Covid-19. And so we were very reliant on data information and scientific consensus or clinical consensus as to how to respond. We relied very heavily on inference from the response to similar types of disease where that was possible as well.

And all the time in the advisory structures that were put in place across the UK and within Scotland what we tried to do was to create a consensus approach where the centre ground of scientific opinion held the greatest weight, and then from there we would try to judge and try to give a level of confidence that related to that evidence, which we kind of framed of either low, medium or high.

Counsel 3: You refer in your statement at paragraph 17 to the Scientific Advisory Group for Emergencies (SAGE) and the New and Emerging Respiratory Virus Threats Advisory Group (NERVTAG) as being part of the critical function of how evidence is received and considered.

How often did you attend SAGE meetings?

Professor Sir Smith: In the early part of the pandemic I tended to – well, the invites began to come for SAGE probably by about early February to Scotland, where we had observer status rather than member status at those meetings. That still enabled us to kind of gain the information and the knowledge that was being discussed at those meetings without perhaps fully contributing to some of the questions. But over subsequent weeks and months that relationship changed so that we were able to participate much more fully in those structures.

NERVTAG sat a little bit to the side. It was a group which was particularly – had a particular expertise on it, and we received reports from NERVTAG in relation to the discussions, with opinion from those groups as well.

Counsel 3: You describe in your statement there being exceptionally good and professional relationships between the UK CMOs. In response to the Covid-19 pandemic, is it right that you met regularly with the CMOs for England, Wales and Northern Ireland?

Professor Sir Smith: I think the first thing I would want to do in answer to your questions is emphasise those exceptionally good professional relationships, and particularly the willingness to engage and share information between the CMOs was quite extraordinary actually, particularly in those early parts of the pandemic response. It wouldn’t be uncommon for us to meet if not on a daily basis then every couple of days, and at the very least a couple of times a week we may – whenever it was necessary – at any point in the day it was necessary, often evening meetings, often very early in the morning meetings, and we stayed in touch, very, very closely during that time.

Counsel 3: There were also regular meetings between the CMOs and other senior clinicians and scientific advisers. Was this the Quint Senior Clinicians Group meeting that you’re referring to in your statement?

Professor Sir Smith: It is. That was probably the most obvious of the other groups and most important of other groups which met on a regular basis, meeting generally, again, on a weekly basis at the early part of the pandemic. It was made up of senior clinicians from across the UK, the CMOs, the CNOs, the NHS England medical director, national clinical director in Scotland, but also very senior public health officials from across the country as well, where we would examine data that was becoming available or observational studies or evidence from other sources and see how to interpret that and what weight of evidence to apply to that.

Counsel 3: How often did the senior clinicians group meetings take place?

Professor Sir Smith: At the early part it was once or twice a week depending on need, generally settling to once a week schedule. But as the pandemic response over the years began to make it less necessary, it still met but less frequently, sometimes just once every couple of weeks or every month.

Counsel 3: Could we have on screen, please, paragraph 15 of Professor Smith’s statement that is page 4 of INQ000484783.

Six lines up from the bottom of the paragraph you say this:

“The evidence presented at these meetings was discussed and carefully considered and where relevant would be used to formulate advice for clinical/medical colleagues, Scottish Government policy officials and Scottish Ministers.”

Who was presenting evidence at these meetings?

Professor Sir Smith: It would vary according to the meetings. It would sometimes come from different public health agencies. It would sometimes come from invited guests. There would be presentations from some observational studies which were taking place across the UK at that time, CO-CIN, ISARIC. As time went on, we would – feedback from other observational studies such as SIREN or Vivaldi. There would be data which was made available to us from international sources. It was a variety of people, either members of the group themselves or people who had been invited especially to come to present because of the work that they were leading on.

Counsel 3: You discussed the thinking behind the establishment of the Scottish Covid-19 advisory group in your statement, provided for Module 2A Inquiry.

Could we have paragraph 41 of that statement on screen, please. It is page 9.

At paragraph 41 you say this:

“As discussed in the Module 1 DG Health and Social Care … statement … SAGE was a useful source of evidence and scientific consensus from which the CMO could develop advice for the Scottish Government, but a drawback was that observers and Scottish Ministers could not ask questions directly of SAGE participants. This was why the FM arranged for Dr Calderwood, then CMO, to set up the Scottish Covid-19 Advisory Group …”

The Scottish Covid-19 advisory group was established before you took up the role of interim CMO in March 2020, is that right?

Professor Sir Smith: That’s correct, yes.

Counsel 3: Do you consider – and that document can come down now, thank you.

Do you consider that the Scottish Covid-19 advisory group provided a greater opportunity for observers and Scottish ministers directly to question those presenting the scientific consensus?

Professor Sir Smith: So to answer, firstly, your question, I have no doubt it presented a much greater opportunity for people in Scotland to be able to directly question the scientific advisers. We held a number of deep dives into various topics, run by members of the group, that afforded our very enthusiastic ministers to be able to ask the questions that they were really keen to ask of the expertise in the room. And I think that the Scottish Covid advisory group was a really important and significant, beneficial group in terms of the interpretation of the evidence as it applied to the Scottish healthcare system and population.

Counsel 3: Your background being in general practice, how reliant were you on the analysis of the evidence done by the Scottish Covid-19 advisory group, SAGE and NERVTAG, when it came to understanding the evolving nature of Covid-19?

Professor Sir Smith: Although my speciality background is general practice, I worked in government and been involved in public health for many, many years before that. So although general practice afforded me a very good clinical opportunity that I’m very proud of, my specialism had evolved over time. So I am sure like – every senior clinician who was involved in the Covid response have benefited from the advice of expertise, both to discuss different pieces of evidence and compare our interpretation of that but also because of the innate expertise that they also brought to it.

Counsel 3: Was the consensus within these three groups broadly the same when it came to the epidemiology of Covid-19?

Professor Sir Smith: The consensus was broadly the same although there was different levels of discussions in the groups, and the way that particularly the Scottish advisory group was constructed, meant that there was often very lively debate about the interpretation of some of the findings and often quite challenging conversations in relation to that before a consensus was brought forward.

Counsel 3: Can you think of an example of that?

Professor Sir Smith: Just off the top of my head, a fairly good example of that would be about the strategy in relation how we begin to control the rates of Covid in the country. Some within the group advocated for a policy to – for as near to elimination as possible. Others in the group viewed that as being unachievable.

Counsel 3: Is it right that health protection information was provided to you in Scotland initially by – well, by – initially to your predecessor by the health – by Health Protection Scotland, then from April 2020 by Public Health Scotland through the National Incident Management Team?

Professor Sir Smith: Yes, the structure in Scotland at that point in time saw at the beginning of the pandemic Health Protection Scotland as being the lead public health agency for health protection, but during the early stages of the pandemic, a pre-planned move to a separate body, Public Health Scotland, occurred. The same people involved under a different name and under a different governance structure.

Counsel 3: And the information that was provided, was that through the National Incident Management Team reporting to you?

Professor Sir Smith: That was the most important of the routes was the National Incident Management Team, which was constructed of public health specialists from Public Health Scotland but also with representation from each of the Scottish territorial health boards as well, plus augmented by analysts from various other agencies.

Counsel 3: In terms of the limits on the role of the CMO and the CMO Directorate, is it right that the role was and is not one of operational decision-making?

Professor Sir Smith: That’s correct.

Counsel 3: The Inquiry understands that in – the NHS in Scotland was put on an emergency footing on 17 March 2020, is that right?

Professor Sir Smith: That’s my understanding. That’s the date.

Counsel 3: And that was before you became interim CMO?

Professor Sir Smith: Yes.

Counsel 3: What impact, if any, did this have on the role of the CMO in the Scottish healthcare system response to the Covid-19 pandemic?

Professor Sir Smith: I’m not sure that it changed the role to any great extent because the prime purpose of the role, at that stage, before and after, was still to provide that independent clinical advice to officials and ministers. The remit of the emergency footing fell to ministers rather than to the CMO.

Counsel 3: Did it have any impact on the status on the clinical guidance being issued by you to clinicians?

Professor Sir Smith: I don’t think it had any impact on the status per se, other than perhaps to say that it became more prominent in the minds of people who were receiving it perhaps.

Counsel 3: We dealt –

Professor Sir Smith: And –

Counsel 3: Apologies.

Professor Sir Smith: Can I expand on that just a little bit, because one of the important aspects of the Scottish healthcare system that differs quite significantly from the English healthcare system is the lack of the – NHS England as a separate entity.

In England the situation would have arisen where if there was a once-for-the-country approach, NHS England would have overseen that through their governance structure. That same governance structure didn’t exist in Scotland under an NHS Scotland body and, in my view, that’s an area which my preference would be to see developed further.

Lady Hallett: Sorry, I haven’t followed that. Could you –

Professor Sir Smith: Yes. So England has NHS England as a separate public entity, public body.

Lady Hallett: Yes.

Professor Sir Smith: There isn’t an equivalent in Scotland. Instead you have 22 health boards, 14 of which are territorial health boards. So if you want a once-for-Scotland approach, that is much more difficult because you don’t have a national entity.

Lady Hallett: So you recommend it – would prefer –

Professor Sir Smith: My preference, and this is a personal preference –

Lady Hallett: The independent entity?

Professor Sir Smith: Yes.

Lady Hallett: A separate entity, sorry.

Professor Sir Smith: Yes.

Ms Price: You dealt with working hours in the statement you made for Module 2A of the Inquiry.

Could we have on screen, please, paragraph 28 of that statement, which is page 6.

And here you say that after you took up office “as interim CMO in April 2020”, you:

“… reassessed the capacity of clinical advice available to the Scottish Government and identified that having more senior advisers would be beneficial …”

You deal there with working hours for your senior team, which were generally in the order of 12-16 hours each day, seven days a week:

“The intensity of [that] work lasting throughout 2020 and beyond, with very little noticeable reduction throughout the period covered by this module.”

Is it right that you increased the number of deputy chief medical officers from one to three in the summer of 2020?

Professor Sir Smith: Yes, the volume of work was quite incredible at that point in time, and one of the first steps that I took was to enhance that senior clinical team, but also to make sure that we were making far better and closer use of the other senior clinicians who worked within government as well, so the Chief Nursing Officer and the national clinical director as well, and that working relationship became very close over the subsequent response to the pandemic.

But, critically, it was very evident that if we were going to service the volume of demands that we had from different parts of government to provide advice, we had to make sure that there was adequate clinical capacity there.

Counsel 3: That document can come down now, thank you.

Lady Hallett: The stenographer missed it. Did you say made greater use of the Chief Nursing Officer and the national clinical director?

Professor Sir Smith: The national clinical director. That’s – at that point in time was Professor Fiona McQueen and Professor Jason Leitch.

Ms Price: What was the impact on your team of the workload that you described at paragraph 28.

Professor Sir Smith: So the first thing I would want to say is that although I have characterised this for my team here, I don’t think my team was alone in working those type of hours in this response, and I saw similar levels of commitment, effort from other areas of government and indeed they have good service as well. It was quite a remarkable effort.

But it did have an impact on us all, and we were tired, and it was stressful work. And there’s no getting away from that. And there was very little respite from it. So seven days a week, working those excessive hours, certainly has its toll, particularly as leave was just not an option in those – I can’t remember the last – the first time I actually took leave as part of the response. It was – it was tough and it was tough not just for us but for our loved ones and our friends as well.

Counsel 3: I would like to deal next with the four harms and the Four Harms Group in Scotland.

It is right, isn’t it, that the Scottish Government published a framework document in April 2020 setting out the Scottish Government approach to decision-making during the pandemic?

Sorry, if you can give your answer verbally.

Professor Sir Smith: Yes.

Counsel 3: Thank you. In the four broad ways in which Covid-19 caused harm, they were identified in that framework, weren’t they?

Professor Sir Smith: They were, yes.

Counsel 3: Could we have the section dealing with the four harms on the screen, please. It’s page 8 of INQ000369689.

Do I summarise the first harm correctly as being direct harm to people’s health, which in this document was measured by reference to the number of hospitalisations, ICU admissions and deaths?

Professor Sir Smith: Harm number 1 was direct Covid-related harm and there were a number of ways we measured it, including those ways that you have outlined there, but we drew upon data sets which showed rising numbers of infection and, as time went by, we understood that that infection also had impacts on both particular parts of society but also had longer-term sequelae as well.

Counsel 3: And the second harm identified was the wider impact on Scottish health and social care services in Scotland, is that right?

Professor Sir Smith: That’s correct. We refer to these as the indirect health harms.

Counsel 3: The last sentence in the second paragraph, just scrolling down a little, please, acknowledges the “postponement of other types of care and treatment” in the healthcare system.

And then the third paragraph says this:

“Despite the NHS remaining open for those who need it, we have seen significant reductions in people seeking help. This will impact on those most at risk. The health impacts brought about by greater inequalities may themselves be significant over years to come. We must adapt to ensure that our health and social care services can resume this wider care as soon as possible, and this forms part of our planning for the period ahead.”

Was there a recognition by the Scottish Government, even at this early stage, in April 2020 that the pandemic was likely to exacerbate existing health inequalities?

Professor Sir Smith: There was a recognition and this was something which worried me greatly at that time. And the decisions that were faced by the Scottish Government is that there were no easy or no risk-free routes to be taken out of this, and almost any decisions the ministers were faced with at that point in time would lead to some level of harm, somewhere in society. Some of those could have been more facing the direct Covid harms if we hadn’t taken action. But by taking action it had then an impact on the indirect harms. There was no easy route and it was one of the – perhaps the most difficult decision-making processes of all the pandemic.

Counsel 3: What was done in April 2020 to try to mitigate the indirect harm that was anticipated?

Professor Sir Smith: One of the things that I certainly tried to do in my role as CMO was to make sure that messaging to the public that the NHS remained open for people who needed it was as loud and evident as possible, and I spoke about it on several occasions during the daily lunchtime briefings that I gave with ministers.

I was particularly concerned that as we began to receive data that we saw a real fall off in the early referrals for cancer or for possibility of cancer, that people were not presenting with chest pain and heart attacks to hospital. That illness hadn’t gone away, it hadn’t disappeared but people were perhaps absorbing that.

And I think there was a very delicate balance to be given in the messaging to the public, which really had to kind of deal with some of perhaps both people’s altruistic sense of protecting the NHS, which was evident, but also some of the fears that they had about presenting to healthcare at that point in time as well. And that was an incredibly difficult thing to do. But messaging was really important, that people with red flags of one sort or another, whether that be chest pain, whether that be suspicious symptoms of cancer that people were seeking help for that. And through social media, through the lunchtime briefings, through any communication portals that I could use I wanted to emphasise that people should – it was important should still present with that.

Counsel 3: Just focusing on the potential exacerbation of existing health inequalities specifically as opposed to indirect harm, what was done in April 2020 to try and mitigate that effect?

Professor Sir Smith: First of all, I think the most important thing was to recognise that there was an effect and then from there work could be done to try to limit the damage that those inequalities to have. Some of that was about supporting people to be able to make the right decisions for them and for their families, particularly when they had symptoms of Covid, so that they were able to isolate, they weren’t going to work and they didn’t suffer financial losses as a consequence of that.

Some of that was about trying to make sure that information which was available to some of our communities was done in as open and as accessible a way as possible, using community leaders, particularly faith leaders to try to get that message across where there was difficulty in doing that, and recognising that there were lots of channels for that really important aspect of communication that lay beyond just clinicians and government ministers by themselves.

Counsel 3: Just before we leave this document, is it right that the third and fourth harms identified in this framework document were respectively the social and economic harm caused by Covid-19?

Professor Sir Smith: That is correct, yes.

Counsel 3: Could we have on screen, please, paragraph 239 of Professor Smith’s Module 3 statement. That’s page 55.

At 239 you say this:

“Throughout the pandemic, as part of the Four Harms process and the Scottish Government’s Framework for Decision Making, CMOD considered how the advice policies or guidance to which it contributed might impact upon groups such as disabled people, older people, people in, ‘at risk’ groups, members of ethnic minority communities, people from disadvantaged socio-economic backgrounds, and/or people with existing health inequalities.”

Is it right that the CMOD was a contributor to the development of the four harms process through the CMO and DCMO?

Professor Sir Smith: That is correct, yes.

Counsel 3: That document can come down now, thank you.

Was the Four Harms Group the primary forum for discussion of evidence relating to indirect health harms caused by Covid-19?

Professor Sir Smith: At a cross-government level that was the primary group where we would examine that, and the aim of the Four Harms Group was really to try to bring together evidence from different parts of government and to treat that in a balanced way, to look at overall the harms that the country was experiencing as a consequence of the Covid response. I think it was important that both the direct and the indirect harms to the population were harms 1 and 2 and were – had particular importance.

But really they had to be balanced. In any kind of national response they had to be balanced by the knowledge and to try to offset the risks of the social harms and the economic harms that the country faced as well.

In my view, the four harms process was a very successful way of doing that, and it led not only to really quite rich discussion as to how we might approach different problems at different stages of the pandemic, to try to balance the risks associated with those four harms but also brought the professional advisers in each of those areas much, much closer together within government so that we could have separate discussions as well about evidence as it develops and a better understanding. For instance, for me, of the economic harms and the societal harms that were taking place as well, so we weren’t solely focused all the time on just a narrow remit.

Ms Price: If we have on screen, please, INQ000317490.

These are the minutes of the fourth meeting of the Scottish government CMO advisory group on Covid-19, which took place on 9 April 2020. Is that three days after you took up the role?

Professor Sir Smith: It was, yes.

Counsel 3: At this meeting a paper entitled “Calibrating the impacts of COVID-19 with the impacts of its control measures: informing decision-making on Non-Pharmaceutical Interventions (NPIs)” was – this was authored by Dr Gerry McCartney, who was an inequalities expert and a consultant in public health at Public Health Scotland. That report was considered at this meeting.

We can see from the minutes that you had sent your apologies and Graham Ellis was deputising for you.

Notwithstanding you not being at the meeting, I would like to ask you about the consideration that was given to health inequalities which were likely to result from Covid-19 restrictions.

Looking, please, to page 3, paragraph 4, there is a summary of what the paper was addressing here and starting about four lines down it says:

“The government’s interventions to flat ten the curve have been important to reduce mortality but the negative economic impact will have marked negative impact on health and inequality. The paper included a number of recommendations for how to influence health and wider policy areas, taking the opportunity to address health inequalities that emerge from this.”

The group’s input was sought on the paper’s recommendations.

There is a summary – going four paragraphs down – the paragraph starting:

“David questioned whether papers shared in the group were aimed at shaping policy or commissioning further research. Sheila and Richard noted that government is considering points raised in the paper and expressed that the paper should feed into broader thinking.”

There is a comment on “language –speaking of balancing rather than trade-offs”.

Then in the paragraph below:

“Jim commented that while long term issues are clearly incredibly important, there are urgent issues also to address. In the last week of full reporting there were almost 800 care home outbreaks in England. It is important that we address the issues of today as well as tomorrow.”

It appears from this that the response to the paper was that the expected longer term health inequalities raised in it would be factored into the broader thinking but that this was not, at this stage, a priority. Was that the position?

Professor Sir Smith: One of the ways that we have dealt with this over the years in Scottish Government is to think about a three horizons approach to the way that we try to deal with complex problems like this. I think Jim’s summary at the end of that paragraph characterises this quite well. There were really important issues that were right up close that we needed to deal with or they were going to cause significant harm. And we needed to deal with those. But that shouldn’t stop us beginning work that could have an impact further down the road. And that speaks to perhaps horizon 1, right up close, but horizon 2, slightly further away.

So it doesn’t mean that they are dealt with in sequence but in parallel, I think is probably the way that I would try to kind of frame that.

And that type of thinking about the recognition that there was going to be both health and societal harms as a consequence of some of this response that would still need to be addressed at some point didn’t mean that we should simply kick that down the road and deal with it at a later stage. Actually the thinking needed to start at that point in time.

Counsel 3: That document can come down now, thank you.

Were you made aware that this paper had been brought to the meeting?

Professor Sir Smith: I was not only made aware but I remember reading the paper because Dr McCartney has contributed to many of my pieces of writing over the years and to minor reports, and he is an author who I respect his writing.

Counsel 3: Did there come a time when the Scottish Government was able to focus on the indirect health core harm caused by Covid-19 and the health inequalities that might be caused or exacerbated by Covid-19 restrictions?

Professor Sir Smith: I think the focus on the indirect harms in particular, as I say, started with, first of all, the messaging, about the NHS remaining open, but really in the recovery phase that people would recognise took place in the UK as the NHS began to kind of more fully re-open and services start to get back to – I can’t say “normal” because I do not think it was normal, but certainly to a greater range of services being available to people. All that was factored in all the way through there and the planning was evident all along. But at those initial stages it really did feel like all hands to the pump to deal with the Covid response.

Counsel 3: Is it right that the First Minister established an expert group to consider the impact of Covid-19 on ethnic minorities in June 2020?

Professor Sir Smith: That is correct, yes.

Counsel 3: And later the Racialised Inequalities in Health & Social Care Steering Group?

Professor Sir Smith: That’s correct.

Counsel 3: My Lady, you will hear more about those groups when Nick Phin from Public Health Scotland gives evidence.

I would like to turn, please, to the evolving understanding of Covid-19.

Could we have on screen, please, paragraph 209 of Professor Smith’s statement. This is the Module 2A statement.

And the last sentence of this paragraph you say this:

“Much more often than not, there were no risk free options but decisions where ‘less bad’ choices could be made.”

Can you give an example, please, of a healthcare system related decision of which this was true?

Professor Sir Smith: The most obvious example that I would give in respect to that phrase would be the decision to pause screening. I think that was taken in March 2020 by my predecessor, which was an incredibly difficult decision but it was taken for reasons to try to free up staff and resources to be able to respond to the direct Covid harms.

And there – it certainly wasn’t an easy choice but I think it was the right choice at that time, but no one was unaware that it wasn’t without risk.

Counsel 3: Would you make that decision again?

Professor Sir Smith: Placed in the same position as my predecessor was I would find it probably as difficult as she did to provide advice into that space. The evidence suggested that at that time that it was the right decision to make.

I noticed in some of the papers at that point in time that she questioned particularly some of the screening programmes. I think that was the right thing to do. I think the right questions were asked about it.

And given the information that my predecessor was given, I think I would probably have made the same decision.

Lady Hallett: By “screening”, do you mean testing?

Professor Sir Smith: No, I mean the national screening programmes looking for, for instance, breast cancer screening or cervical screening or …

Lady Hallett: I see.

Ms Price: That document can come down now, thank you.

Did the identification of the least bad option when it came to the Scottish healthcare system response to the pandemic involve a balancing of potentially competing considerations, as you recall it?

Professor Sir Smith: Yes.

Counsel 3: What is your understanding of the precautionary principle?

Professor Sir Smith: So the precautionary principle was something which was applied very often during the response to the pandemic, and where there was doubt in relation to evidence of data in an area that would cause sufficient harm to be concerned about, people tended to err on the side of caution and perhaps over-calibrate a response to that.

Counsel 3: Did the process of identifying the least bad option involve any express consideration of the precautionary principle?

Professor Sir Smith: In the example I gave you, I don’t think you could say that the precautionary principle was applied in that sense because there was an analysis of data and, as I said, by pausing screening it released staff who could be redeployed into the direct Covid response but also, very importantly, lab resources and skills in relation to labs that allowed the scale-up of really important programmes such as testing in that area.

Counsel 3: Could we have on screen, please, paragraph 32 the Professor Smith’s Module 3 statement. That’s page 8.

You deal in this section of your statement with understanding of Covid-19 transmission routes. In paragraph 32 you identify some factors relevant to understanding transmission routes, including:

“Pathogen dynamics, such as viral load;

“Environmental factors …

“Host-related factors … ; and

“Wider … factors, such as prevalence of the disease.”

Then further down the page, at paragraph 34, you deal with why some routes of transmission were easier to measure than others.

Can you explain, please, why it was easier to measure close-range droplet transmission than airborne transmission?

Professor Sir Smith: So that point we were very much dependent on observational studies of the way that people became infected, and droplet transmission at that stage was felt very strongly to be the predominant mechanism by which SARS-CoV-2 spread.

There was at the very, very early stages of the pandemic response, as we were first identifying cases internationally and then in the UK, a lot of reliance on the dynamics of similar infections to try to judge how SARS-CoV-2 might evolve and spread as well.

In that sense, the very close genomic similarity to SARS-CoV-1 – and there is about an 80% similarity – meant that there was a heavy reliance on that and some other respiratory diseases to try to kind of infer what the most likely mechanisms of spread were in that case.

Droplet spread is rather more easy to kind of quantify than aerosol spread because it is so difficult to measure viral particles in any environment like that. But certainly the evidence from these observational studies that – these initial observational studies certainly seemed to suggest that droplet spread was the predominant spread. But I think importantly it didn’t rule out the fact that aerosol spread was still a possibility –

Counsel 3: If I can just stop you there because we will come on to the detail of that, but just in terms of the measuring of those, your position is it was easier to measure close-range droplet transmission than airborne when it came to understand things?

Professor Sir Smith: Through the observational studies, yes.

Counsel 3: Paragraph 35 you say this:

“… there was a need to balance the level of infection risk from a given transmission route with the frequency and likelihood of exposure to this in day-to-day activities. For example, aerosol transmission across a room may present a low risk from any single exposure, but the ability of one infectious person to expose multiple people at the same time, means it could present a higher population level risk in some settings than for close contact with an infectious person.”

Could you give an example, please, of the kind of settings in which one infectious person could expose multiple people at the same time?

Professor Sir Smith: I think the best way to try to explain this would be to imagine a closed, poorly ventilated environment. I’m going to pick a hospitality space of some sort. But if it’s an enclosed space with poor ventilation and there is even a minimal level of aerosol generation of virus, although the individual risk of a person is relatively low in that respect, if it is a crowded environment, with lots of people there, cumulatively the population risk to that group is much, much greater. So closed, poorly ventilated, crowded environments posed a greater risk for the possibility of aerosol spread even at those early stages. And we saw that with some of the studies in the first superspreader events that took place I suspect.

Counsel 3: Would hospitals meet that description?

Professor Sir Smith: Generally I wouldn’t have considered hospitals as being as part of that description, no, because of the improved ventilation and filtering in modern hospitals.

Counsel 3: There were some hospitals in Scotland, weren’t there, and probably still are, where the structure of the building, the age of the building might make ventilation quite difficult. Factoring that in, does your answer remain the same?

Professor Sir Smith: Again, I would say that it is less evident in hospitals because of the space and the less crowded atmosphere than the type of environments that are enclosed. It doesn’t mean that it is impossible but it is less likely than crowded indoor environments such as crowded hospitality settings.

Counsel 3: At paragraph 36 you say that:

“… it was important to retain an open mind [about routes of transmission], as understanding evolved over the course of the pandemic.”

Then in the last sentence of the paragraph you say this:

“It was also important to ensure that absence of evidence was not interpreted as evidence of absence, and that important transmission routes to which there were potential countermeasures were not ignored.”

Why is it so important that the absence of evidence is not interpreted as evidence of absence?

Professor Sir Smith: So, from my perspective, again, it is the precautionary principle that you outlined beforehand, was that you had to keep an open and not a closed mind to some of this.

There was great uncertainty at the beginning as to exactly the range of different ways that Covid-19 could and SARS Cov-2 could spread. Much emphasis has been given on droplet spread but of course at that stage we were also worried about fomite spread, of the faecal spread and even through bodily fluids of other sources as well. So it wasn’t just about droplet versus aerosol but actually these other mechanisms of spread were always part of that consideration as well. Until there was much more learning and evidence which was available from the specific virus itself I think it was important that we kept that open mind to the possibilities.

And as I say, even some of the early observational studies, particularly one that I recall from China, suggested that in a closed environment that there could be, however minimal, at least some contribution from aerosol spread as well, although it was thought to be much, much less significant than other routes.

Counsel 3: Could we have on screen, please, INQ000300579.

This is a message that was posted on Twitter by the World Health Organization on 28 March 2020 which says this:

“FACT: #COVID19 is NOT airborne.”

It goes on:

“The #coronavirus is mainly transmitted through droplets generated when an infected person accuses, sneezes or speaks.”

Then in the box at the bottom the “fact” of Covid-19 not being airborne is repeated again in that bright yellow box.

Is this an example of absence of evidence being interpreted as evidence of absence?

Professor Sir Smith: I remember seeing this when it came out and I felt that at that time it was perhaps unhelpful to state so unequivocally that – the way that this was framed. Because even at that stage and through some of the advisory structures that we had been discussing this, it was felt that, as you say, no matter how small, that there was still the possibility of some aerosol spread at that time.

Counsel 3: You thought it was unhelpful. Did you raise your views on the WHO statement with your CMO colleagues?

Professor Sir Smith: I think we had discussion at various times round about the role of aerosol spread. I don’t remember specifically raising concern about this particular message.

Counsel 3: Did you raise –

Professor Sir Smith: – (overspeaking) – raising about similar messages.

Counsel 3: I’m sorry, I spoke over you. You had concern about similar messages?

Professor Sir Smith: Yeah, I remember similar messages that came out from WHO that I raised concern about, just about perhaps WHO being less forthright about the possibility of aerosol than I thought they perhaps could have done.

Counsel 3: In terms of the timing of those other messages that you raised concern about, this was March 2020, when were the other messages you had concern about?

Professor Sir Smith: I could only say some are mid-summer 2020.

Counsel 3: We will come on to the July messaging. In terms of what you did about your view that this was unhelpful in March 2020, did you raise that view that it was unhelpful with anyone?

Professor Sir Smith: Other than discussion with internal colleagues, no.

Counsel 3: Did you raise it with ARHAI?

Professor Sir Smith: Not specifically, no.

Counsel 3: Could we have on screen, please, paragraph 262 of Professor Smith’s M2A statement. That’s page 65.

Here you say this:

“It was established that the likely principal route of transmission for Covid-19 were respiratory, although secondary routes including faeco-oral were not excluded. From early in the pandemic, three components have been considered potentially important for Covid-19: fomite, droplet and aerosol spread. However, global scientific consensus on the relative importance of these different transmission routes, and the potential role of other routes, shifted as new evidence emerged, and evidence has been continually reviewed as new variants of SARS Cov-2 have become established.”

Notwithstanding the WHO’s message about airborne transmission, is it right, therefore, that aerosol spread was being considered as an important transmission route from an early stage in the pandemic?

Professor Sir Smith: So what I would say is it was considered as a potential route of transmission. The relative importance of it compared to other routes was yet to be established.

Counsel 3: That was the case by the time you took up your role as interim CMO in April 2020 was it?

Professor Sir Smith: At that point in time it was still unclear as to the relative roles of each of the transmission routes, although it was beginning to crystallise more clearly that there was less emphasis in the faecal-oral route and – and the exact contribution from aerosol spread was still unclear but not thought to have been zero.

Counsel 3: Going over the page, please, paragraph 265, you discuss in this paragraph the early inference that was drawn from early studies of transmission routes of other respiratory viruses, in particular SARS Cov-1. Three lines down you say this:

“In retrospect, this provided mixed early indications, on the one hand, the airborne transmission capabilities of SARS-CoV-2 are similar to SARS-CoV-1; on the other, there are a number of important differences such as in timelines of transmission and the much greater role of asymptomatic transmission seen with SARS-CoV-2. As a respiratory virus SARS-CoV-2 carried the potential for transmission via droplets and aerosols, direct physical contact, and indirect (fomite based) physical contact.”

In your statement provided for Module 3 of the Inquiry you describe a comparison of genome sequences with other known human pathogens that indicated that SARS-CoV-1 was the closest related human pathogen, with around 80% genomic similarity to SARS-CoV-2.

With that in mind, was the initial assumption that there was at least the potential for SARS-CoV-2 to be transmitted by the airborne route?

Professor Sir Smith: Yes.

Counsel 3: You go on in this paragraph to say this:

“Existing evidence suggested that close contact with a person with acute respiratory infection carried more risk than a more physically distant contact, implying the importance of close-range droplet and, as now understood, short-range aerosol transmission.”

But there was pre-pandemic research into other acute respiratory infections which was also drawn upon, which you refer to here. And going over the page, please, you say that showed the importance for transmission of exposure in public spaces:

“… including public transport, shops, restaurants, parties, theatres and places of worship, suggesting an additional potential role for more distant, primarily aerosol based, transmission.”

Given that airborne transmission was harder to measure and the importance of absence of evidence not being interpreted as evidence of absence, the potential for this route of transmission had to be taken seriously, didn’t it?

Professor Sir Smith: Yes.

Counsel 3: That can come down now, thank you.

In terms of how the understanding of transmission evolved, could we have on screen, please, INQ000375354.

This is a printout of some WhatsApp message on the CMO WhatsApp group from July 2020, and I would just like to look at the top message, please, which is from you, is that right?

Professor Sir Smith: That’s right, yes.

Counsel 3: And you say:

“I note the less than helpful equivocal statement from WHO this morning on airborne spread. Will no doubt become focus of attention until they produce something more definitive.”

There does not seem to be a reply to this message on this page, and the remainder of the messages relate to different matters. But this WHO statement was referred to by you in a Scottish cabinet meeting on 8 July, the same day.

Could we have the minutes of that meeting on screen, please. The reference is INQ000078577.

This was a meeting attended by a number of cabinet members, including Jeanne Freeman.

Going to page 2 of the document, please.

We can see that you provided an oral Coronavirus update at the meeting, is that right?

Professor Sir Smith: That’s right, yes.

Counsel 3: And paragraph 3 of the minutes deals with the numbers of cases and deaths.

Lady Hallett: Just before you go on, Ms Price, the minutes of the meeting held on 30 June, I thought you said the Scottish cabinet meeting was on the same day as the –

Ms Price: If we can go back to the first page.

Lady Hallett: Ah, right.

Ms Price: I think that’s the first item on the agenda, which is to check –

Lady Hallett: Of course, thank you.

Ms Price: – the accuracy of the minutes.

Lady Hallett: Thank you.

Ms Price: Page 2, paragraph 3 deals with numbers of cases and deaths.

But paragraph 4 deals with the WHO statement, which is said to have been made the previous day. And the summary of your update reads in this way:

“The previous day, a representative of the World Health Organization … had made an equivocal statement regarding the possibility of airborne transmission of the SARS-CoV-2 virus, although further, urgent research was required before a definitive position could be reached. The WHO’s position remained that the virus was spread by droplet transmission, but an WHO official had now acknowledged some evidence to suggest that airborne transmission could not be ruled out in crowded, enclosed or poorly ventilated spaces.”

Pausing there, can you help with why you considered the statement from the WHO on airborne spread to be equivocal and less than helpful, that description from your WhatsApp message?

Professor Sir Smith: So, first of all, the context is that the previous statement – and this had been unequivocal in that and there was no such thing as airborne spread, and, as I’ve already said, I felt that was an unhelpful position to adopt at that stage. Moving to a more equivocal position was at least a positive step in that direction but, in my view, it wasn’t sufficient to really enable the broader societal discussion about airborne spread and the response that that might necessitate as well.

Many of the nations around the world, including our own, placed a great store in the guidance given by WHO, rightly so, given the expertise that they held, but I think that this was one area where there was more uncertainty about the role of aerosol spread than perhaps was generated in their guidance. And, subsequently, as it became ever more clear that at least it had a contribution to make, as we began to kind of re-open society, if I can put it in those terms, one of the most important aspects of that reopening was the emphasis on good ventilation, and my view was that whilst the WHO continued down this track, it made it more difficult to get the necessary levels of investment in place and to convince everybody that actually investing in ventilation was something which was important.

Counsel 3: Was that something that you wanted more investment to be –

Professor Sir Smith: By that stage, and I’m not going to say by that stage I was convinced because there was still uncertainty, but certainly in my mind it was one of the interventions which I thought was going to become much more important over time was particularly in, if you like – in opening up places for people to come together for meeting indoors is the ventilation would have to play a big part in how we responded to that.

Counsel 3: We’ll come back to ventilation but, given the store that was placed in WHO’s statements and guidance, did you consider raising your concerns about the quality of the guidance and statements coming out of the WHO at this stage?

Professor Sir Smith: So not in a formal sense. So, again, recognising the relationship that Scotland has with WHO, it’s not a direct relationship, that becomes difficult. However, there was certainly a discussion round about where WHO were likely to be heading with some of the guidance and their views on aerosol transmission at that stage.

Counsel 3: Did you discuss your concerns about WHO statements and guidance with your CMO colleagues at this stage in July?

Professor Sir Smith: You’ve seen the WhatsApp conversation there and that was never really kind of developed any further than that, as far as my recollection, although my recollection is not complete at that stage.

Counsel 3: Did you consider raising this with someone from ARHAI, given that those considering IPC measures were, it seems, placing a lot of store in what WHO were saying?

Professor Sir Smith: So, again, the – ARHAI I didn’t have a direct relationship with. ARHAI’s relationship was with one of my senior medical colleagues, the chief medicine officer, and although there were certainly discussion between the senior clinicians in relation to this, I don’t know how that was then taken on in terms of the direct discussion with ARHAI.

I do remember frequently discussions both at Quint and in the CMO group about the need to ensure that the national UK IPC cell was continually reviewing the guidance in light of emerging evidence and approaches, not just in this country but from around the world, and that was a point that was pressed home fairly frequently and particularly and most importantly I guess when new variants of concern began to emerge.

Lady Hallett: Sorry, Ms Price, you say that you didn’t raise it with ARHAI because you didn’t have a direct relationship with them, that was with the chief nursing officer but, given your involvement with the chief nursing officer, your discussions with your colleagues across the UK as CMOs, I’m not following the fact that you didn’t have a direct relationship means that you couldn’t raise it.

Professor Sir Smith: So it was raised through the channels that were available for me at that point in time, in terms of we would have a discussion about it and we would decide a consensus as to whether we should take that back to, for instance – it was generally the UK IPC cell which would be looking at that more closely rather than ARHAI in Scotland.

Ms Price: My Lady, would that be an appropriate point for a 10-minute break?

Lady Hallett: We usually take 15 minutes.

Ms Price: Apologies, 15 minutes, my Lady.

Lady Hallett: What we will do is we will compromise. Given it’s 11.07 I shall return in – 11.25.

(11.07 am)

(A short break)

(11.20 am)

Ms Price: And just to be clear, did you consider at this stage, in July 2020, that the WHO was failing adequately to acknowledge the potential role of airborne transmission?

Professor Sir Smith: I think the context for this is that I thought that they were failing to acknowledge the possibility of aerosol transmission, although even at that stage my own view was that although I thought that it was possibly contributing, its contribution was very small.

Counsel 3: Do you think you should have done more at that time in July 2020 to express your view particularly to the groups who were dealing with IPC measure guidance?

Professor Sir Smith: Given that I thought the contribution was very small at that stage in the evidence that was available, no.

Counsel 3: Looking at paragraph 5 of the minutes here, the summary of your oral update continues:

“If confirmed …”

And by that do we take it to mean if airborne transmission was confirmed?

“… this would alter the measures required to protect against infection and could signal new risks: compared with droplet transmission, airborne (or aerosol) transmission was characterised by the much longer presence of the virus in the air when an infected person had been in a confined space.

“6. In discussion it was noted that this unconfirmed development, although potentially worrying, should in any case serve to underline the merits of using face coverings in public. The four Chief Medical Officers of UK countries would continue to monitor closely the research in this area and would be alert to the implications of any changes in the formal position of the WHO.”

Was it your view at the time that if airborne transmission were confirmed as a route of transmission for Covid-19, that different measures would be required to protect against infection?

Professor Sir Smith: My view was that if it was confirmed it was a significant contributor to transmission, and I think the importance there is the clarification as to what extent it was a contributor to transmission overall. Then, yes, I did believe that there would be a need to probably emphasise some parts of the response in a way that was greater than we were currently doing, as I say in particular ventilation.

Counsel 3: Are the measures you refer to here – and you’ve just given the example of ventilation, but are you referring to IPC measures in healthcare settings?

Professor Sir Smith: All of that would have to be kept under continual review anyway and it was kept under continual review, so I was confident that that would be a process that would be ongoing, but, as I say, I was particularly concerned that we may have to introduce additional measures such as a greater emphasis on ventilation, as I’ve already said.

Counsel 3: The position you are putting forward here appears to be that a change in protection measures was not required until this development was confirmed, is that right?

Professor Sir Smith: My view was that unless there was new evidence that showed that there was a significant level of transmission from aerosol spread, then, yes, we didn’t need to take additional measures but we should stay alive to the prospect that that may be the case at some future point.

Counsel 3: Is this not the wrong way round, applying the precautionary principle – shouldn’t such measures be introduced in case airborne spread transmission is confirmed in the future where there is some evidence of it acknowledged?

Professor Sir Smith: At the level of evidence with the level of impact that was felt to be the case at that point in time, no, it would have been inappropriate to apply the precautionary principle.

Counsel 3: This unconfirmed development was said by someone involved in the discussion at the meeting to underline the merits of using face coverings in public. Was there any discussion at this meeting of whether this development should prompt further analysis of the merits of altering protection measures in healthcare settings specifically?

Professor Sir Smith: I don’t recall whether that was part of the discussion or not.

Counsel 3: Well, there’s no reference to it in the minutes. Do you think, therefore, that there was no discussion of it?

Professor Sir Smith: My view is that if it had been a significant part of the discussion it would have been captured in the minutes.

Counsel 3: Do you think this is something that should have been discussed at the time that this development in the evidence or acknowledgement of the development in the evidence was being discussed?

Professor Sir Smith: It was perhaps a discussion that wasn’t for cabinet at that point in time, but should advice have been brought forward to cabinet specifically for that purpose, then I would imagine that it would have been a very appropriate thing for cabinet to be involved in the discussion.

Lady Hallett: Sorry, I didn’t follow that answer, Sir Gregor:

“It was perhaps a discussion that wasn’t for cabinet … but should advice have been brought forward to cabinet specifically … I would imagine it would have been a very appropriate thing …”

Sorry, are you saying it should have been taken to cabinet?

Professor Sir Smith: What I’m saying is that if formal advice had been taken to cabinet because it was felt to be so significant a development, then I’m quite sure cabinet would have discussed it in that respect, but at that – I think – the emphasis that I would want to put in this part here is that this was a very unclear moment as to the significance of the contribution of aerosol spread. At that point in time, it was still felt to be of a very low degree of transmission involved, if any, at that stage, and until there was greater evidence for that, then I can understand wholly why cabinet wasn’t discussing it.

Lady Hallett: You would have been the person to take it to cabinet, would you, the use of a face mask?

Professor Sir Smith: Probably what would have happened in those circumstances would – from the appropriate policy area, submission would have been made to ministers in relation to advice that was given about face masks, and then the appropriate minister, if the decision lay beyond them and it was a decision for cabinet rather than for the minister themselves, then it would have been taken from there to cabinet. As I’ve already outlined I wasn’t responsible for policy in relation particularly to face masks.

Lady Hallett: Can I go back to the point Ms Price was making about the use of the precautionary principle. She established that you accepted the precautionary principle was important, that the absence of evidence doesn’t mean – I can’t get it right now, I’m getting everything wrong this morning, including my maths – the absence of evidence doesn’t mean evidence of absence. Why are you looking for evidence of a significant contribution to transmission before you start considering other measures that might be sensible and in accordance with the precautionary principle?

Professor Sir Smith: Because at this point in time the evidence suggested that the contribution was small and, therefore, the gains which would be made by applying those additional measures would be so small that it would be a disproportionate response.

Lady Hallett: Well, shouldn’t there have been some analysis of whether the response would have been disproportionate?

Professor Sir Smith: Those type of analyses were continually taken in relation to a number of things. I cannot comment on any analysis that was undertaken in relation to IPC specifically. But in terms of face masks for the general population, which I was more closely involved in providing advice around, I know that health and social care analysis teams in Scottish Government looked at the evidence for and against this very extensively, particularly contributions not only to the protection of those wearing them but source control protection of others.

Lady Hallett: Sorry to interrupt, Ms Price.

Ms Price: Not at all, my Lady. That document can come down now, thank you.

It appears from the documents that SAGE provided advice on airborne transmission on 9 July 2020, the day after the Scottish cabinet meeting that we’ve just looked at the minutes for. We can see that reproduced in a submission to Scottish ministers dated 4 August 2020, and that submission was copied to you.

Could we have that on screen, please. It’s INQ000380368.

This submission related to the proposed expansion of mandatory face coverings to indoor public spaces.

Going to page 2 and paragraph 8, please.

The first paragraph of quoted text here, which is quoted text from SAGE, we can see that in the bottom right, says:

“In light of the WHO’s recent communications on the risk of airborne spread, SAGE noted that its papers and guidance have consistently acknowledged that shorter-range aerosol transmission is a risk, especially in poorly ventilated settings featuring a highly-infectious person. The contribution of aerosol transmission relative to droplets and fomites remains unknown, but aerosol is unlikely to be the dominant transmission route. Research is underway on this subject and a UK research consortium has been formed.”

Did this represent the clinical consensus which was being presented to Scottish ministers at this point in time, August 2020?

Professor Sir Smith: So this represented the view that – as I say, I was more closely involved in formulation of policy in relation to face coverings in public, the view that I felt was important and considering when ministers were making decisions about whether to introduce masking for the public.

Counsel 3: My question is really, this is a view from SAGE. It is being put in a submission to Scottish ministers. Was this being put forward at this point in time as the clinical consensus for Scottish ministers to base their decisions upon?

Professor Sir Smith: Yes, it was.

Counsel 3: Could we have on screen, please, INQ000246414.

This is a June 2021 “Review of Physical Distancing in Scotland”, produced by the Scottish Government.

Looking at page 7, please. We see reference here towards the end of the second paragraph on this page to:

“… increasing evidence of airborne transmission over longer distances in some situations.”

Does this reflect your understanding of the picture in relation to transmission at that time, June 2021?

Professor Sir Smith: It does, yes.

Counsel 3: Could we have on screen, please, INQ000362893.

These are the minutes of a Scottish cabinet meeting which took place on 7 December 2021. Again, you provided a verbal update for ministers.

Going to page 3 of this document, please, paragraph 12. The update being provided related at this point to the Omicron variant. There is reference to the suspected increased transmissibility of this variant.

Going then to page 6, paragraph 23, starting three lines down:

“In addition, the public needed to be warned about the increased risks associated with ‘super-spreading’ events (largely as a result of airborne transmission), which must be understood to encompass almost any gatherings in crowded and/or confined spaces.”

As far as your assessment of the evidence went, is it right to say that you were of the view that airborne transmission, including aerosol transmission over longer distances, so not just close contact, was by this point confirmed as a route of transmission?

Professor Sir Smith: So by this point, yes, I would say that my very clear view was that aerosol transmission was very real. Again, the extent to which it contributed was less clear but it was certainly contributing with this particular variant to some of the superspreading events that we were seeing.

Counsel 3: How did you join the dots, so to speak, between your strengthening view on this and the consideration that was being given to in particular IPC measures by others?

Professor Sir Smith: So in terms of joining the dots, again this goes back to the continual review process that was instituted by the IPC cell in terms of how they reviewed emerging evidence. In relation to changes in circumstances, now, those changes in circumstances might be new pieces of evidence that came out or it might be the emergence of a new variant such as Omicron, which would mean a reassessment of the approach.

Counsel 3: Could we have on screen, please, INQ000203978.

This is a statement from the WHO dated 23 December 2021 dealing with how Covid-19 is transmitted.

The first sentence at the first bullet point says this:

“Current evidence suggests that the virus spreads mainly between people who are in close contact with each other, for example at a conversational distance.”

And at the second bullet point there is this:

“The virus can also spread in poorly ventilated and/or crowded indoor settings, where people tend to spend longer periods of time. This is because aerosols can remain suspended in the air or travel farther than conversational distance (this is often called long-range aerosol or long-range airborne transmission).”

Was this the first official confirmation by the World Health Organization that Covid-19 is transmitted by the long-range airborne or long-range aerosol route as far as you’re aware?

Professor Sir Smith: I couldn’t say with certainty that this was the first communication, but what I could say is that this began – this was a communication that began to be much more consistent with my understanding of the situation.

Counsel 3: How did this impact upon your assessment of the evidence relating to routes of transmission?

Professor Sir Smith: It reaffirmed my thoughts in relation to what I felt were the routes of transmission.

Counsel 3: To what extent do you think the scientific consensus in the UK on routes of transmission was led by the official position of the WHO?

Professor Sir Smith: I think you can already see from some of the discussion that we’ve had so far today is that there was always an acknowledgement of aerosol transmission as a mechanism. As I say, the unclear aspect of that was to what extent it was able to contribute in the real world to transmission.

And this was, I felt, a moment in time when the WHO position and the position of many experts in the UK began to kind of become much, much closer together.

Counsel 3: That document can come down now, thank you.

Given that some evidence of airborne transmission was acknowledged by the World Health Organization in July 2020, do you think the scientific consensus in the UK was too slow to recognise its role?

Professor Sir Smith: I think that’s a difficult question to answer, I have to say, The d reason I find it difficult to answer is because I think that there’s evidence of part of the response long before that that showed that the possibility of aerosol transmission was built into the response. So, again, I take us back to a point in time in summer 2020, as we began to re-open society, and in light of the WHO Position Statement and that some of the advice that was coming from the UK groups, some of the international evidence that was beginning to gather a greater degree of strength, as society began to re-open there really was an emphasis, you will recall, on safer spaces being either outdoors or in well-ventilated spaces for good reason, and that was because of the possibility of aerosol spread.

So I think even before that there was certainly an acknowledgement. I couldn’t say whether there was a broad consensus amongst every academic. But it was certainly strong enough for the advice that was being provided to ministers in terms of society re-opening is that we had to take notice of those safer type of spaces and emphasise those particularly during times when the kind of prevailing, higher levels of infection were affecting us.

Counsel 3: Given the groups involved in providing advice it was possible, wasn’t it, for the Scottish Covid-19 Advisory Group to take a different view from SAGE, for example, and to provide different advice. Do you agree with that?

Professor Sir Smith: It was certainly possible. There were very few occasions where the advice differed significantly at all. I would struggle at this moment in time to be certain of an occasion such as that.

However, I think where the Scottish advisory group perhaps placed a different emphasis on some of the advice that was coming out and perhaps either a higher degree of confidence on it or labelled it as being more important, in terms of the response that was taken, again, I would suggest that that cautious approach to re-opening more slowly perhaps than other parts of the UK as we did it, but with a much stronger emphasis on some of the environments that were felt to be at higher risk because of the lack of ventilation and the crowded nature of them, they became one of the features of advice that came not only, I would say, from the advisory group but also from the national INT(?) as well.

Counsel 3: Did you ever instruct your Covid-19 advisory group to look critically at what SAGE were saying in their advice?

Professor Sir Smith: Right from the beginning the advisory group didn’t need any instruction. They were very critical in every discussion that they had of all the advice and papers that they came across.

One of the things that worked very well at the inception of the Scottish advisory group was the reciprocal agreement to share papers with SAGE and from SAGE, from Scottish authors of the advisory group to SAGE and also access obviously to the SAGE papers as well. And what that did was that facilitated really very often direct discussion within the advisory group about the interpretation of some of the evidence.

Counsel 3: Okay. But in answer to my question, is the answer no, in terms of you providing direct instruction to that effect, ie could you look critically at what SAGE is saying about transmission?

Professor Sir Smith: I would have provided direct instruction if it were required, but it was never required because it was inherent in the way that the group operated.

Counsel 3: We’ve touched on the indirect health harms caused by Covid-19 and the exacerbation of the health inequalities. I’d like to come now to the evolving understanding of disparities in outcomes to those affected by Covid-19. You deal with this in paragraph 67 of your Module 3 statement.

To summarise your evidence here, is it right that by February 2020 there was evidence of increased risk of hospital admission for older adults, men and those with certain underlying health conditions?

Professor Sir Smith: Yes. The picture that we were seeing emerging in other countries certainly suggested that there was a – at that stage, there was a more severe impact on these type of groups.

Counsel 3: In addition, you say that:

“… in the first wave, statistics highlighted high rates of hospitalisations among patients of black and Asian ethnic groups compared to white ethnic groups …”

And you cite an ICNARC report dated 10 April 2020 which reported on statistics from England, Wales and Northern Ireland.

Is it right, therefore, that this disparity in outcomes was something you were aware of from an early point in the pandemic?

Professor Sir Smith: It was something which I remember there being discussion on both at the Scottish advisory group but also through the SAGE structures, and people were aware of it. People were also aware that there were many confounding factors which could be contributing to it and which needed to be fully sorted through and understood before there was a definitive position on it. But certainly at that early stage, there was enough evidence to suggest that it really needed to be understood much more clearly.

Counsel 3: I would like to ask you about Public Health England’s report beyond the data understanding the impact of Covid-19 on BAME groups dated June 2020. You deal with this at paragraph 69 of your Module 3 statement if that helps you.

This was an English report. To what extent were the recommendations applicable to England considered, adapted and implemented in Scotland?

Professor Sir Smith: Yes, so there’s many of the recommendations which applied equally to Scotland in the way that we had to respond, particularly round about the quality of the data that we would have and, you know, the data collection systems in particular were areas which were looked at very, very quickly, particularly on hospital admissions. But we also acknowledged the importance of having to look at ethnicity data and how that was recorded in primary care systems as well. It wasn’t recorded as well as it should be, and that was something which we did address.

I recall that ministers also at that point in time set up the expert reference group to examine not only the impacts that pertained to the report but actually some of the broader impacts that related to ethnicity across society as well. I think that was probably August 2020 that that was set up in response to that as well. And subsequently it then reported in November with a series of recommendations which were taken forward as well.

Lady Hallett: Could I issue my usual request. Could you slow down, please.

Professor Sir Smith: I will do.

Lady Hallett: Thank you.

Ms Price: I’d like to come to a new topic, please, Professor Smith, and that is Long Covid.

Could we have on screen, please, INQ000409591.

This is the witness statement of Dr Safia Qureshi from the Scottish Intercollegiate Guidelines Network.

I just want to take you to one paragraph in it, which is paragraph 79, which is highlighted on the screen, which reads as follows:

“In July 2020 the Scottish Government COVID-19 Professional Advisory Group discussed reports of individuals with diverse long-term, persisting symptoms after recovery from acute COVID-19 and supported a proposal for the Clinical Cell to develop national guidance on this topic. It noted that several teams in Scottish Government were working on different approaches to support people with on going symptoms.”

Then the paragraphs which follow deal with which those teams were.

Do you recall discussion at the Scottish Covid-19 professional advisory group of such reports in July 2020?

Professor Sir Smith: I don’t think I was at that particular meeting but I recall the reports that came out of that group and the proposals at that point in time to set up a much closer relationship with SIGN, an organisation in Scotland which is responsible for creating guidelines and a trusted source of information for clinicians in Scotland. And around that same time there were increasing reports from people writing directly but also media reports and social media reports, evidence from other places, of longer-term sequelae in relation to Covid.

None of that should really surprise us, because many viral diseases have that type of impact, but there seemed to be particular nuances that people seemed to be experiencing this that may be unique to Covid itself, and we needed to try to learn more about that. So the proposal to try to bring together all these strands of working in an integrated way but also to explore with other UK nations whether they were doing any work in this and to bring that all together eventually led to the joint project between NICE in England and SIGN and the Royal College of GPs to try to bring forward some formal guidance for clinicians on this.

Counsel 3: You say this should not surprise us. Was any work done – anticipatory work done before reports of long-term symptoms in Scotland?

Professor Sir Smith: I’m not aware of any anticipatory work that was done on this.

Counsel 3: Are you aware of any done in the UK more widely?

Professor Sir Smith: Again, I’m not aware of any anticipatory work that was done on this that I could confidently refer to.

Counsel 3: So July 2020, the summer of 2020, was that the first time that Long Covid, as it came to be called, was raised with you or came to your attention?

Professor Sir Smith: With the degree of confidence that I have in my memory, that would sound about the right time.

Counsel 3: What advice, if any, did you provide to the Scottish Government in July 2020 on Long Covid?

Professor Sir Smith: So the main advice was to take forward this work to try to develop a package of – first of all, to understand what was meant by the term “Long Covid”, because even at that stage there was a recognition that there may be – different people who had long-term symptoms were affected in different ways and to try to understand that a little bit better, so to develop the evidence base for this which might then inform some sort of more cohesive longer-term approach.

Counsel 3: That document can come down now, thank you.

Just a point of clarification on the Long Covid timeline, if I may.

Professor Sir Smith: Yes.

Counsel 3: At paragraph 95 of your Module 3 statement you refer to it becoming apparent by summer of 2021:

“… that many patients have ongoing symptoms after recovery which persisted for longer than three months.”

You cite a Switzerland study from July 2021, and that’s the same study that’s cited in the CMO’s technical report.

By starting the chronology in your statement with the state of knowledge in summer 2021 you were not saying, were you, that this was the first time there were reports of long-term –

Professor Sir Smith: No.

Counsel 3: – persisting symptoms.

Professor Sir Smith: Reports of persisting symptoms were starting to come through much, much earlier than that.

Counsel 3: Because we know the first version of clinical guidance was in place by December 2020; that’s right, isn’t it?

Professor Sir Smith: Yeah.

Counsel 3: In terms of the progress which was made developing a clinical guideline after discussion of the issue in the summer of 2020, there was a Scottish paper dated 2 September 2020, I won’t go to it unless you need me to, but that addressed the need for a guideline, is that right?

Professor Sir Smith: Could you go to the paper just to clarify.

Counsel 3: Yes.

It’s INQ000365757.

Professor Sir Smith: So this is from SIGN, yes.

Counsel 3: Yes. So I think you have seen this document before.

Professor Sir Smith: Yes.

Counsel 3: It essentially sets out what is needed in September, 2 September.

That document can come down now, thank you.

You refer to the clinical guideline which was produced in December 2020 at paragraph 100 of your statement. Is it right that the Scottish Intercollegiate Guidelines Network ultimately collaborated with the National Institute for Clinical Excellence and the Royal College of General Practitioners over the guideline?

Professor Sir Smith: That’s exactly how the guideline was produced. SIGN as our national guideline organisation with relevance for clinicians in Scotland and NICE is the equivalent organisation in England worked with the Royal College of General Practitioners particularly because of the impact on people presenting to general practice and the need for long-term follow-up to produce a guideline. And although what was produced was different in each country, the differences were really in the formatting and familiarity for clinicians, rather than being any kind of real difference in the content of them.

Counsel 3: Can you help with why it took from July 2020 until December 2020 for a guideline to be produced?

Professor Sir Smith: I can’t help you as to why there was that length of time. I could speculate but that’s not what I’m here for.

Counsel 3: In May of 2021 you wrote to the medical directors of the NHS boards about implementation support following the publication of the clinical guideline in December 2020.

Could we have that on screen, please. The reference is INQ000480831.

You refer in the first paragraph – and this is dated 5 May 2021 – to the guideline then in the – you refer in that first paragraph to the December guideline which had been published.

And then in the second paragraph you say this:

“To support the implementation of the guideline’s recommendations, the Scottish Government has produced additional targeted information for primary care teams, developed with input from key stakeholders, including Speciality Advisers to the Chief Medical Officer and senior medical advisers to the Scottish Government. The implementation Support Note provides primary care teams with practical information about implementing the SIGN guideline from a whole system perspective.”

Can you recall why implementation support was felt to be necessary?

Professor Sir Smith: Very, very often after significant guidelines we look at actually whether additional support was needed in supporting clinical teams to actually implement the guidelines. In this case, because this was a new condition, it was felt that additional – for instance, one of the most important aspects is being able to identify people who may suffer from this in electronic records, so coding information that was specific to Long Covid, for instance, becomes really important, particularly how that impacts on people. And this was intended to be a supportive tool just to make sure that the actual guidance landed and was adopted as completely and consistently as possible.

Counsel 3: Was there any particular incident or incidence which prompted the decision to provide this additional support?

Professor Sir Smith: No, I don’t recall any.

Counsel 3: Would it have been possible to provide implementation support earlier and would it have been desirable to do so?

Professor Sir Smith: I’m not able to answer that question. I wasn’t directly involved in the development of the implementation guidance, and I – it would be my view that this would be quite an undertaking in amongst all other activities that were ongoing at that time for a team to be able to develop the type of guidance that was then sent to general practice. Whether it could have been shortened or not, I guess it could have been shortened if additional resource, additional people were available to do that, but even then that’s not certain I don’t think.

Counsel 3: In terms of the process, when did you become involved, was it at the point of sending out this letter?

Professor Sir Smith: It was a communication.

Counsel 3: Is it right – and that document can come down now, thank you – is it right that from September 2021 there was a centrally funded Long Covid service in Scotland?

Professor Sir Smith: There was.

Counsel 3: And the funding consisted of a £10 million Long Covid support fund, is that right?

Professor Sir Smith: To the best of my knowledge that’s my understanding.

Counsel 3: Can you explain, please, how the provision of Long Covid services in Scotland differed before and after the introduction of central funding?

Professor Sir Smith: Before the central funding was available it’s my understanding, based on conversations that I’ve had with the policy team who oversaw this clinical condition but also some of the kind of operational clinical directors responsible in the boards, that much of the approach was more ad hoc and dependent on which board – health board patients resided in. There may be a different approach to the service with some being more centralised specialist services and some being led within a kind of primary and community setting.

There were common features across different boards, common features such as rehabilitation support, such as – in mainly psychological support but not an extant national specification in that sense, prior to this, the funding, being available. As it has been described to me, we then saw the funding becoming available and there being a much more consistent approach to the way that these services would be designed and delivered within each of the boards supported by that level of funding.

Counsel 3: And were Long Covid services improved after central funding was introduced?

Professor Sir Smith: I cannot give you an answer to that and I can’t give you the answer to that because I have never seen data which shows whether there were material improvements from people’s perspective in relation to the care that they felt with us.

Counsel 3: Were you involved at all in advising ministers on how Long Covid services should be provided or funded?

Professor Sir Smith: I wasn’t, no.

Counsel 3: Could we have on screen, please, paragraph 104 of Professor Smith’s Module 3 statement. Here you give your reflections on lessons to be learned from Long Covid, and you say this:

“It is important to note for future pandemic preparedness that there may be longer-term consequences of an infection affecting a large percentage of the population, and that adequate surveillance mechanisms should be in place to capture the epidemiology of the condition accurately to allow adequate planning of healthcare resources in the longer term.”

Was the potential for there to be longer-term consequences of infection with Covid-19 something which should have been recognised from the outset of the pandemic?

Professor Sir Smith: I think it is a common feature, as I’ve already said, of many viral infections, not every viral infections but of many viral infections that there are longer-term sequelae as a consequence of that. It’s not unusual of respiratory viruses, although the more common that we see is flu. Even with flu there are some longer-term sequelae that people are aware of. And with Covid-19 it was very unclear as to exactly what those long-term sequelae could be.

Viruses are – for anyone who studies them – are fascinating organisms in the way that they impact on people, not just in the short term but the way that they can some – their effects can sometimes persist in the body either through long chronic infection or through the way that the body’s immune response fails to turn itself back down afterwards.

It was very unclear with Covid at first as to whether it was going to have those kind of effects, but it’s not unreasonable to think any virus infection could have longer-term sequelae, hence the reason for my paragraph 104. It’s, for me, an important part of looking forward and making sure that we have got surveillance systems not only to identify the pathogens but actually the longer-term effects of those pathogens as well.

Counsel 3: Was Scotland prepared to deal with Long Covid?

Professor Sir Smith: The answer to that, in my view, has to be, no, we weren’t prepared at that early stage of the pandemic to deal with Long Covid, partly because it was unknown to what extent Long Covid would impact on the population. If you look at the range of impacts that long-term sequelae can have from debilitating conditions like chronic fatigue syndrome through to incredibly complex and difficult sequelae such as Guillain-Barré syndrome which can be life-threatening, there is such a huge spectrum of disease that you could be dealing with, it would have been very difficult to prepare fully in any respect before knowing what you were dealing with.

Lady Hallett: Going back to Ms Price’s question a little earlier, do you accept that Scotland should have recognised – and it may well be that all the countries of the UK should have recognised – the possibility of long-term sequelae at an earlier stage, given that it’s a known consequence of many viruses?

Professor Sir Smith: Yes. I mean – so I’m going to qualify this answer to you, my Lady, and I’m going to qualify it by saying I think there was a recognition that it was a possibility but we were unclear in what way it would present and then how to respond to that. So there was certainly an awareness that it was a very distinct possibility, but we weren’t prepared to be able to deal with either the volume of long-term sequelae that we were seeing or I think the type of long-term sequelae.

Lady Hallett: So having recognised it as a possibility, was anything done other than recording the recognition?

Professor Sir Smith: It was really keeping alive to the fact and watching for the evidence arising.

Lady Hallett: Right.

Ms Price: Thank you, my Lady.

Moving, please, to infection prevention and control. To what extent were the proposals of the UK-wide IPC cell considered by you and other UK CMOs before they became guidance?

Professor Sir Smith: I don’t recall us ever authorising any of the guidance. I don’t think that it was – there was that type of relationship with IPC’s cell. We were certainly aware of the cell. We received reports from the cell.

Much of their work was channelled through the chief nursing officers, if you like, reporting structures rather than CMOs, although we were certainly aware of the work, but certainly in Scotland IPC fell under the remit of the chief nursing officer rather than chief medical officer, and it was an area which although I was involved in at times and gave views on that I wasn’t closely involved in.

Lady Hallett: Can I just follow that up. That seems to be the case throughout the UK. With no disrespect to the chief nursing officers or any of the people who are members of the cell, do you think in the future that is a sensible way to approach what is such an important aspect of guidance, infection prevention and control, should you have other people basically either in charge or on such a cell?

Professor Sir Smith: From my perspective, the expertise sits with these professions, and the specialisms sits with these professions, and whilst it may be useful to have external challenge in any group, and I don’t single out the IPC as a group that they would benefit from that, that is the route of the expertise.

Lady Hallett: But to ensure you have the proper measures for infection, prevention and control, sometimes, as Covid proves, you have to have some expertise in some pretty complex scientific developments, and I just wonder whether that expertise could properly be analysed by the membership of the cell as it was during the Covid pandemic.

Professor Sir Smith: I think the IPC cell was fairly well equipped for that because not only did they have subject matter expertise and IPC practice but they had public health specialists, they had ventilation specialists. I believe that there was also input from the Health and Safety Executive as well.

Lady Hallett: But do you not need expertise in understanding the nature of the virus that you’re dealing with?

Professor Sir Smith: Which should have come both from the infection control specialists and also the public health specialists in the group.

Lady Hallett: So going back to the airborne droplet debate, if you have expertise in how you can control a certain kind of virus that is droplet-based, surely you need to be able to analyse whatever understanding there is, scientific understanding, of whether it is droplet based? Haven’t you got to have some kind of expertise to help the people in the cell?

So you have somebody who analyses what kind of virus it is and the routes of transmission, and then you pass that to the specialist to say, “Right, how do you now protect against an airborne virus or a droplet-based virus that may be airborne as well?” Isn’t that what you need, that extra level of expertise?

Professor Sir Smith: So my understanding of what you have just described there –

Lady Hallett: Yes.

Professor Sir Smith: – my Lady, is exactly what happened in the –

Lady Hallett: Oh, right.

Professor Sir Smith: – IPC cell is that there was a multidisciplinary input not just from IPC specialists themselves but actually from public health experts in health protection, from ventilation experts and from others who all contributed to the formulation of the guidance.

Lady Hallett: Thank you.

Ms Price: Could we have on screen, please, paragraph 145 of Professor Smith’s Module 3 statement.

In this paragraph you set out some considerations for Covid-19 IPC guidance, and the first of these is emerging evidence on transmission risks.

We spent some time earlier this morning on the developing understanding of transmission routes, and this follows on in some ways from her Ladyship’s questions to you just now. In circumstances where there was some evidence of airborne transmission by July 2020, should the IPC guidance not have proceeded on the basis that there was a need to guard against the risk of airborne transmission from that point?

Professor Sir Smith: I think when IPC guidance was formulated it was formulated on the basis of the best evidence that we had available to them, just now. I cannot comment what evidence that they considered at that time because I wasn’t involved in any of the discussions, I’m afraid, and whether they considered the possibility of airborne and how they considered that.

I think the point that you make about the possibility of airborne spread at that point in time certainly was recognised that there were certain procedures or points in time where that type of spread was much more likely, and IPC guidance that was formulated at that point in time tried to respond to that.

Counsel 3: The second consideration for Covid-19 IPC guidance which you list in this paragraph is international recommendations regarding best practice for IPC, which you say:

“… built on the established evidence base for IPC practices derived from the WHO.”

So are you saying here that there was reliance placed on what the WHO was saying on IPC guidance specifically?

Professor Sir Smith: So that was one of many sources that I understand that the IPC practices were derived from, but I don’t think it was the sole source. My understanding from the reading that I’ve done in this area and from the conversations that I recall from that stage was that not only were they taking advice from international organisations like the WHO, European organisations like ECDC in terms of transmission, but also that they were looking at some of the UK – the broader UK groups who were reporting as well, and I think subsequently there was a subgroup of SAGE which was set up which provided advice into the cell as well.

Counsel 3: The last consideration on this page is:

“Ensuring that guidance is consistent with IPC practice and easily understood by staff and implementable in all …”

Just going over – oh, it is there:

“… and implementable in all health and care settings …”

By “implementable”, are you referring to the practical feasibility of implementing IPC measures?

Professor Sir Smith: Yes.

Counsel 3: To take the example of ventilation, I’ve already raised with you the issue of the design of older hospitals and that might be a factor. Might that be a factor which was considered when deciding on ventilation IPC measures, ie the feasibility of introducing ventilation measures in an old hospital?

Professor Sir Smith: So I can’t speculate whether that was one of the factors that they considered or not but other factors, such as the feasibility of being able to adopt any approach over long periods of time, so, for instance, wearing particular types of PPE over extended periods and how people would respond to that, the feasibility of even either availability or safe checking of the use of certain types of PPE, all of these may have been things which factored into that, but I have to say that some of this is speculative because I wasn’t involved in the discussions.

Counsel 3: Taking an example, could we have on screen, please, INQ000492302.

This is an email chain, and if we can just start with page 1, please.

We can see this is an email chain from January 2020. At this point in time, you were deputy chief medical officer –

Professor Sir Smith: Yes.

Counsel 3: – as opposed to Interim chief medical officer. Going, please, towards the bottom of page 3, which gives the context for the exchange on page 1. Right towards the bottom there is an email from Jim McMenamin, a consultant epidemiologist from Health Protection Scotland to you on 22 January 2020. It’s copied to Dr Ritchie among others.

And going over the page, please – well, further down if we are scrolling, the third paragraph on this page there is this:

“In our PHE led IMT discussion we have been discussing the IPC support for general practice in the event of a symptomatic returning traveller presenting to general practice and then appearing in a consulting room and only then being recognised as a suspect patient who meets the clinical and epidemiological case definition.”

Then if we can zoom out, the shared view of all four administrations on how to manage the situation is set out in those bullet points.

In short, to summarise, and bearing in mind that this was at a very early stage in 2020 the management was to involve the practitioner leaving the room, closing the door and isolating the patient until an ambulance could transfer the patient to hospital. Is that a fair summary?

Professor Sir Smith: That’s exactly what the chain says, yes.

Counsel 3: Then about halfway down the page there is identification of the issue you were being asked for your view on, which is:

“Reflecting the rurality challenge in Scotland we have suggested that there is a risk that patients could need to be isolated for many hours and thus there could be clinical circumstances where a practitioner may feel that they wish to attend their deteriorating patient. In this circumstance we propose to offer a pragmatic infection prevention and control advice which would use gloves and aprons and surgical (fluid resistant) face masks.”

If we go back to page 3, please, of this document. We can see your reply in the middle of the page there, and you say:

“Thanks for this Jim – I think you know that I’m a pragmatist, and I can foresee situations where clinicians will feel compelled to check on patients who have been isolated if there are lengthy waits for SORT ambulance. So being able to offer some protection here is desirable.

“Can I first ask whether there are any other options that have been considered? And if so on what grounds were these discounted.”

When you asked about other options, did you mean PPE options other than fluid resistant surgical masks?

Professor Sir Smith: So I meant all options as in whether there were either other ways of dealing with this in terms of protection that could be provided or other options in managing the patient, practical options in managing the patient in those circumstances, remembering that this was a contingency that was being thought through here.

Counsel 3: Your email is then directed to Dr Ritchie, who responds the same day on page 1 of this document. She says this:

“Re your question about options considered:

“• The option for FFP3 respirators is not one that can be easily and quickly implemented in general practice nor effectively sustained – specifically given the need for fit testing.”

To place this exchange in context, it is right, isn’t it, that Covid-19 had been designated as a high consequence infectious disease earlier that month from 13 January? Would you agree that the consequence of that was that respiratory protective equipment was required for healthcare workers treating infected patients?

Professor Sir Smith: So, in those circumstances, that would have been the – very much the desirable approach to this, and the context for this discussion is probably the most important.

Counsel 3: I understand that the context for what you were being asked for your view on is nuanced.

Professor Sir Smith: Yes.

Counsel 3: But that was the position in terms of the guidance at the time –

Professor Sir Smith: Yes.

Counsel 3: – or the requirement. What Dr Ritchie was saying in this email was that FFP3 respirators, as an alternative to fluid-resistant surgical masks, could not easily and quickly be implemented in general practice, specifically because of the need for fit testing.

It was in the context of GPs in Scotland in rural areas and it was quite a specific situation.

After you enquired about other options, you were told that this eventuality was discounted because it couldn’t be implemented. Is this an example of a specific IPC issue on which there was not consensus being escalated to DCMO level for a view for the correct way to proceed?

Professor Sir Smith: So I think this is perhaps an example of – again, because of my links back to general practice of understanding the nature of general practice, and where general practitioners prior to the pandemic were responsible for providing their own protective equipment within the practice. So my knowledge of that enabled me to – well, really to know that many practices would have very little or no protection, and certainly very little knowledge of how to use some of the more advanced types of protection such as FFP3 masks. Fit testing in general practice is not something that has been undertaken in the UK. And I suspect that in this occasion this was something which they came to me specifically for advice on because of my links back to general practice.

Counsel 3: Is it also an example of an occasion on which the difficulty of implementation as a consideration has overridden the other Covid-19 IPC guidance considerations which you identify in your statement?

Professor Sir Smith: So this is – as I say, the context is really important here, this is about contingency. This is about making sure that some protection is better than no protection and ensuring that at least there is something at this stage which is being done to try to offer people protection –

Counsel 3: I understand –

Professor Sir Smith: – in very difficult circumstances.

Counsel 3: – that in terms of the rationale. But just in terms of the decision that’s been made, it appears that the ideal would be for them to have FFP3 respirators in the context and in the moment in time that this is, and the reason that that couldn’t happen was because of the impossibility of implementation. So am I right in saying that this is an example of a time where the impossibility or the practicability has overridden the other considerations?

Professor Sir Smith: So just to be clear, the ideal situation is for these patients not to be anywhere near general practice at all. The ideal situation is to make sure that the full HCID processes can be deployed when assessing a patient within an environment that’s appropriate for that level of concern and a disease. This was a contingency in the event that someone should literally pitch up in general practice waiting to be seen and there may be a suspicion that this could be Covid that was causing it. I’m not aware that it ever happened at this stage of the pandemic. But this is about ensuring that all eventualities have been covered just to make sure.

Counsel 3: I appreciate this may be another example of the least bad option, but the IPC decision has been made on the basis that –

Professor Sir Smith: It’s pragmatic.

Counsel 3: – another option cannot be implemented, would you agree?

Professor Sir Smith: In these circumstances, yes, I agree that’s the case.

Counsel 3: Just going further up the page please. Your response was:

“Thanks Lisa – so I think we have a consensus and I’m content to support the approach that’s been outlined.”

So, in the circumstances, were you content that this was the right decision?

Professor Sir Smith: I was content that it was the least bad option.

Counsel 3: That document can come down now, thank you.

As the evidence about Covid-19 transmission developed, do you recall the difficulty of implementation being a barrier to changes to the IPC guidance when other considerations weighed in favour of measures which might have afforded greater protection to healthcare workers?

Professor Sir Smith: As the response progressed, particularly as we began to develop greater knowledge of the virus and stronger supply chains, I don’t remember the implementation of the guidance or I certainly was not aware that the implementation of the guidance became a significant problem. But that perhaps is best – a question that is best directed at some of the operational directors who were responsible for implementing the guidance.

Counsel 3: I would like to ask you, please, about another Covid-19 IPC guidance consideration.

Could we have on screen, please, INQ000117069.

This is an email from Jill Vickerman, the Scottish national director of the BMA. It is dated 29 April 2020. It is sent to the DGHSC but it is copied to you. It attaches a letter to the BMA dated 28 April 2020. I don’t intend to go to that letter in the interests of time but I understand you’ve had an opportunity to see that letter recently.

Professor Sir Smith: Yes.

Counsel 3: That document can come down now, thank you.

The letter stressed the need for risk assessment of healthcare workers given their personal characteristics might impact upon the risk they face at work. It raised two points in relation to ethnicity. The first was the disproportionate number of deaths among BAME healthcare workers as well as the disproportionate number of BAME patients admitted to ICU. The second was a result of the BAME survey which found that almost double the proportion of BAME doctors felt pressurised to work in settings where aerosol-generating procedures were being carried out with inadequate PPE.

Was the increased risk for ethnic minority healthcare workers a consideration which was taken into account when decisions were being made about Covid-19 IPC guidance?

Professor Sir Smith: So the first part of your question I think would be better directed at people who were involved in the direct formulation of the guidance because they would be able to give you an informed answer on that.

What I can say to you is that it was a consideration as we received the guidance and interpreted the guidance for use in Scotland. For instance, we were aware of additional staff concerns in some areas. That eventually led us to creating some additional flexibility in what PPE was worn, particularly when using AGP procedures in non-Covid areas.

So if we understand the hierarchy of controls approach to IPC, that has a multilayered approach to how you begin to reduce the risk associated with infection. One of the – you know, the last component of that is actually the personal equipment that people wear in relation to that, and there is many stages before that.

But in the non-Covid pathways that had been set up in terms of the advice that was given for what PPE could be worn, in Scotland we adopted an approach that tended to strengthen that and give a little bit of flexibility. It became particularly evident as concerns were raised about what PPE should be worn in response to cardiac arrest. And again, my view in terms of my input to that area, and I know it was shared by other clinicians, was that finding a pragmatic approach that allowed a greater degree of local risk assessment and the deployment of PPE for the circumstances was something which was important.

Counsel 3: Others may be better placed to assist the Chair on the detail of the work that was done on individual risk assessments for healthcare workers in Scotland, but having been made aware of the increased risk linked to ethnicity as well, in that letter, as age, sex and comorbidities by the BMA, did you ask for anything to be done to ensure that Covid-19 IPC guidelines could be adapted to account for the vulnerabilities of these workers?

Professor Sir Smith: I recall raising it at one of the Quint meetings that we referred to beforehand, as to whether this was something which needed deeper exploration by IPC authorities across the country.

I think there was an action from that meeting, if I recall, that PHE would look at some of the detail of that and then report back.

Counsel 3: I would like to turn, please, to the impact of a lack of complete consensus when it came to Covid-19 IPC guidance.

At paragraphs 146 and 147 of your statement, you acknowledge that despite strong relationships between relevant organisations across the UK, broad consistency of approach across the four nations and collaboration and co-operation of external stakeholders, there never was complete consensus across all professional groups, is that right?

Professor Sir Smith: Yes, that’s correct.

Counsel 3: I would like to explore, please, the impact of this lack of complete consensus.

Could we have on screen, please, INQ000478114.

This is the statement to the Inquiry of Professor Colin MacKay, provided on behalf of the Glasgow Royal Infirmary. At paragraph 127 here, Professor MacKay says this:

“One of the issues which caused greatest staff anxiety was the management of cardiopulmonary resuscitation (CPR). In the event of cardiac arrest, HPS guidance was to use RPE for endotracheal intubation (as this was considered an AGP) but not for chest compression. This would allow immediate resuscitation to commence while full PPE was donned. This pragmatic guidance caused anxiety for staff who felt all aspects of CPR posed significant risk to staff and the situation was further inflamed by Position Statements produced by Royal Colleges and others, stating that chest compressions were also aerosol generating. The circulation of conflicting guidance by colleges and other organisations proved unhelpful and caused unnecessary anxiety for staff across the NHSGGC. The leadership team were clear on the necessity to adhere to statutory guidance rather than ad hoc position statements from other organisations, however well-meaning.”

At the time, were you aware of the lack of consensus on which aspects of CPR were classified as AGPs?

Professor Sir Smith: Yes, I was.

Counsel 3: Were you aware of the difficulty that this was causing on the ground, at least, it appears, in this hospital?

Professor Sir Smith: Yes, very much so, and I was aware that there was a very live discussion not only on the ground but actually with many of our – in the regular discussions we had with the medical royal colleges, they expressed their concerns over some of the conflicting advice in this space as well.

Counsel 3: What was your view at the time on whether chest compressions should be categorised as an AGP?

Professor Sir Smith: My view at that time was that I had no reason to dispute the evidence or the approach that was being taken by the IPC cell. They had considered it very carefully and the evidence that they presented around – about chest compressions seemed reasonable.

Counsel 3: That document can come down now, thank you.

Is it right that on 20 May 2020 a joint statement was issued by you, the Chief Nursing Officer and the national clinical director dealing with PPE and aerosol-generating procedures?

Professor Sir Smith: Yes.

Counsel 3: Could we have that statement on screen, please. It is INQ000477445.

We can see there that joint statement heading.

Going to page 2 of this statement, the third paragraph on this page says:

“Having reviewed the available evidence, NERVTAG concluded that it does not consider that the evidence supports chest compressions or defibrillation being procedures that are associated with a significantly increased risk of transmission of acute respiratory infections.”

It goes on:

“NERVTAG also states that whilst it is biologically plausible that chest compressions could generate an aerosol, this is only in the same way that an exhalation breath would do. An expiration breath, much like a cough, is not currently recognised as a high-risk event or an AGP in addition, NERVTAG states that defibrillation is not likely to cause any significant breath exhalation. Based on this evidence review and NERVTAG’s findings, UK IPC guidance will not add chest compressions of defibrillation to the list of AGPs.”

Underneath:

“However, we are an unprecedented times and it is paramount that frontline healthcare professionals are supported to find a pragmatic solution to ensure their safety and that of their patients. NERVTAG recognises that the evidence-base is extremely weak and heavily confounded by an inability to separate out the specific procedures performed as part of CPR, ie chest compressions, defibrillation, manual ventilation and incubation (airway management).”

“Therefore, CPR within a hospital setting should be considered as a continuum which is likely to include an AGP as part of airway management. In this case, the precautionary principle should apply and the healthcare professional should be supported by their organisation to make a professional judgement about whether to apply airborne precautions; which would include FFP3 face mask, long-sleeved gown, gloves and eye/face protection. NHS Boards must ensure that this PPE is available for these frontline staff.”

Can you explain, please, why you and your colleagues took this position and issued this joint statement?

Professor Sir Smith: I think the key statement for me, particularly in that last paragraph, is the idea that CPR within that hospital setting is a continuum of activity. It’s not just about a team arriving and starting manual chest compressions because within a hospital setting it’s inevitable that that will progress to other forms of intervention as well. And, therefore, recognising that that is a continuum right from the beginning it’s important and pragmatic to make sure that people feel fully supported in how they approach this.

By writing this letter, myself and the other clinicians involved, wanted, first of all, to show that we understood that there was uncertainty in this area, to recognise that. And, as we state in the letter to – in this case to apply that precautionary principle given that continuum and given local flexibility for teams to be able to adopt the PPE that they felt was appropriate in those circumstances.

Counsel 3: Was this statement well received by those on the ground, as far as you’re aware?

Professor Sir Smith: I am actually not aware. There was some feedback from the medical royal colleges who we were grateful for this clarification of the position. I don’t know how it landed on the ground.

Counsel 3: Professor MacKay in his statement that we’ve just looked at makes no mention of this statement, in fact saying that they were telling staff they must follow the IPC guidance. What was done to ensure that NHS health boards had got this message?

Professor Sir Smith: It was spoken about – so, first of all, it was communicated to the executive clinical directors within each health board. It was communicated with the medical royal colleges and updates to them. It was spoken about at meetings with the executive clinical directors as well. So these are all points in time when these messages are able to be conveyed.

Counsel 3: Was this position that healthcare workers could decide that they wished to wear PPE which protected against airborne transmission in this context, so CPR, maintained in Scotland or did it change?

Professor Sir Smith: It was maintained.

Counsel 3: That document can come down now, thank you.

Turning, please, to IPC measures for preventing nosocomial spread to patients. The Inquiry has heard that a Covid-19 nosocomial review group was set up in Scotland meeting for the first time on 7 May 2020, is that right?

Professor Sir Smith: I’m aware of the group but I was not a member of the group.

Counsel 3: The evidence that the Inquiry has heard is that although you were not a member of the group, the group reported to you as it did the chief nursing officer, is that right?

Professor Sir Smith: It is not, no. It reported through the chief nursing officer but it also had – what it did do was it provided input to the advisory groups, the CMO advisory group. But the group itself did not report to me.

Counsel 3: Does it follow that you did not attend the meetings of that group?

Professor Sir Smith: I was not a member of that group.

Counsel 3: Were there any issues reported to you even indirectly by the nosocomial review group which led to you providing advice to Scottish ministers?

Professor Sir Smith: I don’t recall any specific instances when that was the case. That would have been unusual for me to provide direct advice to Scottish ministers on any elements of IPC as it lay out of the scope of my directive.

Counsel 3: Could we have on the screen, please, INQ000203933.

This is the UK CMO’s technical report on the Covid-19 pandemic in the UK.

Going to page 363, please.

I should say it is dated 1 December 2022.

The second paragraph down summarised the findings following computational modelling done to assess the effectiveness of IPC interventions in England during the first wave of the pandemic.

That modelling identified that the most effective interventions for the prevention of nosocomial Covid-19 infections in patients were decreasing occupancy, increasing spacing between beds and testing patients on admission.

The study referred to here was published we find from the footnote in 2021. Were you aware of the results of the modelling done in England during the period relevant to this module, so 1 March 2020 to 28 June 2022?

Professor Sir Smith: So I wasn’t aware of the specifics of the modelling but some of the outputs from that modelling and I recall it being discussed at meetings such as Quint.

Counsel 3: Was any equivalent modelling done in Scotland, as far as you were aware?

Professor Sir Smith: I’m not aware. I wasn’t involved in any modelling.

Counsel 3: That document can come down now, thank you.

It has been suggested by some that the focus of IPC measures in healthcare settings was primarily on healthcare workers, such as through testing healthcare workers and universal masking, as opposed to means of preventing spread between patients. Do you agree with that?

Professor Sir Smith: I don’t wholly agree with that because I recall being involved or listening to discussions in relation to hospital capacity and bed spacing in particular and how important that was, concerns at times being raised about the ability to be able to adequately space beds because of volume of people and to maintain that over time.

As people began to look at various solutions for increasing capacity, one of the very strong things which I remember being pushed back was narrowing the bed spacing between people for the very reason of the responsibility of spread between people.

Counsel 3: You’ve mentioned ventilation a number of times this morning. As the evidence about modes of Covid-19 transmission changed, did you ask for or receive any advice or briefings from the UK IPC cell or any other group about the impact of ventilation or access to clean air?

Professor Sir Smith: I don’t recall having any briefing from the IPC cell in relation to that.

Counsel 3: How about ARHAI?

Professor Sir Smith: I wouldn’t be able to answer that with confidence.

Counsel 3: Do you recall there being a discussion or any advice from anyone on the impact of ventilation and access to clean air on nosocomial infections specifically related to patients?

Professor Sir Smith: Again, I couldn’t answer that question with confidence. I think it may have come up during advisory group meetings but I couldn’t say with confidence that that was the case.

Counsel 3: So you think that – sorry.

Professor Sir Smith: Could I qualify that by saying there was an awareness that ventilation was an important issue in that respect.

Counsel 3: Given that you were aware that it was an important issue, do you think that you should have asked for work to be done on ventilation access to clean air in the context of either nosocomial infections affecting patients or affecting healthcare workers?

Professor Sir Smith: I think it’s a reasonable activity to have undertaken, to try to establish the effectiveness of ventilation, particularly in areas where there were concerns about the ventilation if those were arising. Again, I have to say that I wasn’t directly involved in these conversations because I didn’t oversee any of the infection prevention and control procedures or policy.

Counsel 3: Do you think that ventilation and its role in the prevention of nosocomial infections was given sufficient attention in Scotland?

Professor Sir Smith: I remember it being a very, very live topic and one that ministers in particular were very interested in. I think it was given a great deal of attention and I remember the chief nursing officer spending a great deal of time in relation to it.

Ms Price: My Lady, that brings me to the end of a topic. Would that be a convenient moment?

Lady Hallett: Certainly, I shall return at 1.45 pm.

(12.45 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Ms Price.

Ms Price: Thank you, my Lady.

Professor Smith, I’d like to deal next please with some specific PPE challenges and the response to those, starting with the impact of supply constraints.

You refer in your statement at paragraph 167 to there being widespread concern expressed informally and formally that measures being recommended were insufficient based in part on a concern that this was being driven by supply constraints rather than science.

Dealing first, please, with what those supply constraints were in Scotland. There were three related submissions to the cabinet secretary for health and sport on stock and supply issues with FFP3 masks and the use of time expired FFP3 masks, and those submissions are March 2020. Do you know the submissions I’m referring to?

Professor Sir Smith: I do, yes.

Counsel 3: They were all copied to you. Have you had a chance to review those recently?

Professor Sir Smith: I have, yes.

Counsel 3: Is that right?

Professor Sir Smith: That is right.

Counsel 3: Could we have on screen, please, the last of these submissions dated 24 March 2020, please.

It is on the screen.

Go to page 2, please.

Is it right to summarise the background to this submission in this way: the Scottish supply of FFP3 masks was “critical”, and that was the word used in one of the previous submissions; efforts had been made to obtain more stock but this was proving difficult because of international supply delays; ministers’ approval had been sought to preposition time expired stock of FFP3 masks following UK-wide stock validation testing, which had been arranged by Public Health England; and that approval had been given, is that a fair summary?

Professor Sir Smith: That’s my recollection of those events at the time, yes.

Counsel 3: This submission sought ministerial approval to use the time expired stock which had passed quality assurance tests, is that right?

Professor Sir Smith: Again, that’s my recollection.

Counsel 3: Paragraph 4 set out the position which had been reached:

“My submission of 21 March noted the fragile position in relation to current FFP3 stock and in relation to new supplies. National stockpiles now hold only 16K, after distribution to Boards of 73K last week. We have retained around 1.5 million FFP3 masks (made by 3M) which had recently gone out of date (after previously shelf-life extension), from a total of 19 million held across the 4 nations. We are now moving to a position where we need to consider using this stock.”

What steps did you take at this stage, if any, to ascertain whether health boards were still experiencing shortages in supply of FFP3 masks? There was a reference in the earlier submission to reports of a shortage in supply.

Professor Sir Smith: So, personally, I didn’t take any steps because, again, this lay – this responsibility lay with a particular team within Scottish Government, a particular directorate and that had been formed looking at the subject of PPE and the supply chains that were related to that, and as one of the health and social care directors we received reports back from that team during the discussions that we had in relation to the position. So I was certainly aware of the difficulties from that perspective but this wasn’t an area that I was particularly involved in and active in at that stage.

Counsel 3: So you were being copied into this submission not because it was your responsibility but to keep you informed –

Professor Sir Smith: This was about information rather than anything else.

Counsel 3: Over the page, please, at paragraph 13. Deployment of the stock:

“The priority is of course to secure deliveries of new stock and to deploy that or other in-date stock to any which is not technically in-date. However, it will also be important to deploy the respirators in a way that maximising they are usefulness. Therefore, it is likely that we would wish to deploy them immediately, and that they will continue to be issued concurrently with any new stock which becomes available, in order to reduce fit testing burdens on Boards and staff.”

We then have fit testing dealt with at paragraph 14 below:

“If approved to release the 3M FFP3 stock, additional assurance on safety in using these masks will be provided through the use of the ‘Portacount’ machines, used to fit test the masks to staff. These machines are already being deployed across Boards. These will be greatly speed up fit-testing, reduce burdens on Boards and have been improving fit-test pass rates to help ensure safe usages in practice. Such results will help to improve staff confidence in their own safety.”

Is it right that approval was given for the time expired stock to be released to health boards for use?

Professor Sir Smith: Again, that’s my understanding.

Counsel 3: At this time, did you have any concerns about time expired FFP3 stock?

Professor Sir Smith: Given that they had been through a quality assurance process and passed by the health and safety equivalent, no, I didn’t have – express any concerns.

Counsel 3: Were any concerns raised with you about this, at this time?

Professor Sir Smith: No.

Counsel 3: Were the porter count machines provided to health boards to assist with fit testing as had been planned, do you know?

Professor Sir Smith: I wasn’t aware of that information.

Counsel 3: Could we have on screen, please, INQ000478114.

This is Professor McKay’s statement which we looked at earlier provided on behalf of the Glasgow Royal Infirmary.

Could we go to paragraph 124. That’s already on screen.

Professor McKay says this about the Glasgow Royal Infirmary’s experience:

“By the second week of March 2020, we had used the bulk of our FFP3 supply to complete the fit-testing of our staff. We then received a supply of FFP3 masks … from the national stock which proved difficult to fit – the initial failure rate being 75%. Fit testing is mask-specific, so the national stock being different to that which we had originally tested our staff to meant that the fit-testing exercise had to be repeated. This was a surprise to us and proved time consuming. A further batch of different FFP3 masks was delivered … which had [a] failure rate of 45%. These dated from 2012 and although they had been revalidated for clinical use, there were concerns that the elastic had lost its resilience there was evidence that some of the straps snapped when donning these masks (these cannot be tightened as fixed straps).”

Were you aware at the time that Glasgow Royal Infirmary had these problems with fit testing and there were concerns about the straps on time-expired stock?

Professor Sir Smith: No, I wasn’t.

Counsel 3: Were you aware of wider concerns about time-expired stock falling apart, the filtration device might work but the parts holding an FFP3 together had denatured? That was evidence that the Inquiry heard recently. Were you aware of that at the time?

Professor Sir Smith: I’m afraid I wasn’t, no.

Counsel 3: Did you or your team ever follow up on what the impact of using time expired stock was on healthcare workers?

Professor Sir Smith: Again, that wouldn’t have been the remit of my team to follow that information up. That would have been the specific team set up to deal with PPE. And I’m not aware of any of my team being involved in any form.

Counsel 3: Had these concerns come to you in your role as CMO, or deputy CMO, as you might have been at the time, do you not think there might have been a responsibility to look into the issues, given that they were experiences on the ground of clinical practitioners?

Professor Sir Smith: So if these – if these issues had been raised directly with me and not through other sources, yes, then I would have taken those issues to the responsible team to look into further.

Counsel 3: I see. So you would have responded had they been raised to you, but following up on the stock issue and the experience would not have been your role, is that the distinction you draw?

Professor Sir Smith: Yes.

Counsel 3: The last Covid-19 IPC guidance consideration you listed at paragraph 145 of your Module 3 statement was the impact of the guidance on workforce moral with the aim being to support and reassure clinicians. Some insight into the question of whether clinicians felt supported and reassured was provided by the BMA PPE survey, the results of which were available in April 2020.

Could we have a screen, please, INQ000117023.

This is an email from Jill Vickerman to you dated

I think that’s the day after you took up the interim CMO role, is that right?

Professor Sir Smith: It would be yes.

Counsel 3: She is flagging up the results of the UK-wide survey, and it appears from this that a call was to be set up with you to discuss the Scottish figures, is that right?

Professor Sir Smith: I have to say I don’t recall any such call being set up at that point in time. It may have happened but I’ve no recollection of that period, the specifics of any call. I know that there were certainly liaison with Jill and other members of the BMA at that time and regular meetings with other members of my team, myself or very often with healthcare workforce who were often responsible for the relationship with the BMA.

Counsel 3: Did you come to have an understanding of what the Scottish figures specifically showed?

Professor Sir Smith: I am not aware of that understanding, no.

Counsel 3: Can you help with whether the Scottish figures broadly

reflect the UK-wide picture?

Professor Sir Smith: Not at this time, no.

Counsel 3: The email which was forwarded to you by Jill Vickerman

summarised the UK-wide results.

At the bottom of the first page is the result that:

“More than two thirds of doctors have told the April 2020. 7 British Medical Association in a new survey that they do

not feel safely protected from Coronavirus infection

where they work.”

Going to page 2 of the document. Paragraph 3:

“According to the survey, more than half of doctors

working in high-risk environments said there were either

shortages or no supply at all of adequate face masks,

while 65% said they did not have access to eye

protection. Alarmingly, 55% said they felt pressurised

to work in a high-risk area despite not having adequate

PPE.”

The next paragraph records that:

“Almost 90% of GPs in contact with Covid patients

reported either shortages or no access at all to eye

protection, and 62% reported problems with supply of

facemasks. More than half of GPs who responded said

they felt they had had to buy their own facemasks or eye

protection, with only 2% saying they had felt fully

protected against the virus at work.”

So this survey was suggesting that doctors felt that they did not have access to the PPE which was being recommended. Looking at the paragraph below we can see here the survey shows the doctors are not being provided with the appropriate protective equipment as specified by the government’s own guidelines. So this wasn’t a disagreement with the IPC guidance it was a – there wasn’t enough PPE to comply with the guidance.

What did you do to address the concerns about PPE which were being raised by the BMA on behalf of its members in April 2020?

Professor Sir Smith: So at that point in time there was significant pressure I remember on many of the supplies in relation to PPE, and my recollection, and this is a recollection, again I would emphasise that I wasn’t directly involved in the provision of PPE. So this is my recollection from discussion in directors’ meetings was that the PPE directorate were establishing those supply lines and had successfully been able to enable central supplies of PPE within Scotland and retain those central supplies.

Some of the difficulties that we became aware of was in the – not in the central part of the supply chain but actually at the very ends of the supply chain and ensuring that within some of the units that were using PPE, that there was problems actually getting them in sufficient numbers to the people who were delivering the care.

Subsequent to that, this was an area that after this discussion our cabinet secretary at the time, Jeanne Freeman, took quite a significant interest in and set up a helpline that any worker who was concerned about the supply of PPE – availability, rather, of PPE in the units that they worked, they could phone this central number to express their concerns and so that those could try to be addressed as quickly as possible. I’m certainly not aware of any direct contact that I or members of my team had in relation to that.

And I am aware, again through discussion in particular forums and with the cabinet secretary at the time, that the helpline appeared to be working well in terms of being able to address some of the concerns.

Counsel 3: That document can come down now, thank you.

You have been directed by the Inquiry to a number of paragraphs from Dr Barry Jones’ statement to the Inquiry as well as the statement of Ms Gillian Higgins. The paragraphs to which you have been referred, refer to two meetings which you are said to have attended with Ms Higgins, the first being on 21 April 2020 and the second being on 13 April 2022.

Do you recall meeting with Ms Higgins now?

Professor Sir Smith: I recall parts of the meetings in both cases. The first meeting I rather more recall the general demeanour of the meeting rather than the specifics.

Counsel 3: What was the general demeanour of the meeting?

Professor Sir Smith: Generally constructive, positive listening. It was a meeting – a chance really to listen to the concerns that were expressed.

Counsel 3: Could we have on screen, please, paragraph 57 of Ms Higgins’ statement. It is page 16 of INQ000421873.

This paragraph is referring to the 21 April 2020 meeting, the first of the two and it says this:

“I also specifically recall that the CMO stated that while protecting staff was important, the Government did not wish to ‘overreact’ by implementing measures of a higher standard than we needed and that couldn’t be sustained. My colleague contributed that he did not agree that protecting the workforce, in particular vulnerable members of our community with higher risk of death from COVID-19, with evidence based solutions was an ‘overreaction’. I also reiterated that high quality RPE is readily available, would be more cost-effective, and would lead to less nosocomial infection, staff illness and death.”

Do you recall expressing this view or a similar one at the meeting that the government did not wish to “overreact” by implementing measures of a higher standard than were needed that couldn’t be sustained?

Professor Sir Smith: So I wouldn’t be able to tell you the exact language that I used, but I do remember speaking about the need to make sure that the response was proportionate, proportionate to the risk that had been identified through the various groups that were examining this, and that in responding in a way which was disproportionate it might actually lead to more concern if those items which were being specified were not sustainable, and the really kind of difficult position of where an over-specification had been made higher than was thought to be necessary by the expert group but wasn’t sustainable and we would create unnecessary worry in the minds of staff. Very difficult to retreat from a position of higher specification to lower specification, whether it was necessary or not, and particularly if it was unnecessary – thought – felt unnecessary by these groups. And that was certainly a concern.

Counsel 3: That document can come down now, thank you.

Do you recall the potential for re-usable respirators being discussed in the two meetings with Ms Higgins?

Professor Sir Smith: I recall that perhaps more from the second meeting in 2022.

Counsel 3: Of which there are minutes, which I think you’ve seen?

Professor Sir Smith: I don’t think those were minutes but those were –

Counsel 3: A note of the meeting.

Professor Sir Smith: A note of the meeting and perhaps involved a Teams chat associated with the meeting.

Counsel 3: What do you recall from discussions about the potential for reusable respirators?

Professor Sir Smith: So I remember the evidence that was presented at the meeting and the discussion that followed, and I remember it was quite a difficult meeting. I think it was at a time when there were some very difficult conversations which took place during the meeting, and one of my – I guess one of my regrets of that meeting in particular is that I probably didn’t take my best self into that meeting as well because of other stresses on the day.

That said, one of the things I was unhappy about over the course of the meeting was what appeared to be members who had come to speak advocating for a particular company to be approached. It’s something that I find quite difficult in the role is that commercial contacts I don’t think are part of this role, and I need to keep my independent advice. And particularly in relation to this meeting, it felt as though we had things the wrong way round, and rather than specifying a level of product or approach, which we all agreed was necessary, and then going out to an open procurement process to identify who was best placed to be able to supply that best value, what was being advocated was a particular company who should be approached in order to look at this, and that seemed to me the wrong way round, and I was concerned where the conversation was going.

Counsel 3: Did you have any involvement in decision-making in relation to the use of re-usable respirators?

Professor Sir Smith: No, I didn’t.

Counsel 3: Moving, please, to shielding and the highest risk list. You explain at paragraph 203 of your Module 3 statement that:

“The four UK CMOs jointly identified certain health conditions which could, based on risk from respiratory illnesses [like] flu, mean someone was potentially at higher risk of negative outcomes it they contracted Covid-19.”

Is it right that there was no divergence across the UK in respect of this identification?

Professor Sir Smith: At that point in time, yes, there was no divergence. Perhaps the only slight divergence that there was, wasn’t in the six groups that was identified, but in Scotland we also gave, I think, a greater degree of flexibility at the outset for clinicians to identify additional people that they thought was beneficial to add to the list.

Counsel 3: And just in terms of the date of that, is it right that it was 18 March 2020 that the agreement of the CMOs was reached as to which groups should be on the list?

Professor Sir Smith: That would be consistent with my recollection of data during that period. I remember that Dr Calderwood was still CMO at that point in time, but I also remember being involved in some of the conversations myself.

Counsel 3: Given that you were DCMO at the time, to what extent were you involved in that agreement process of the UK CMOs?

Professor Sir Smith: It was primarily – primarily led by the four UK CMOs but with input from DCMOs on specific items.

Counsel 3: And what was your view at the time on the approach and the conclusions reached by the UK CMOs?

Professor Sir Smith: So in the absence of other evidence at that stage, it acted as a good starting point from which we could begin to build further information particularly, as I say, in Scotland I felt it was important to have an additional layer of flexibility for clinicians to identify people.

Counsel 3: Do you think that support for those shielding was adequately built into the initial design of the shielding programme?

Professor Sir Smith: I think this was an incredibly difficult thing for anyone to even contemplate what was being asked of people who were asked to shield, and, you know, when you look back on that time and what people who eventually went onto that shielded list were asked to do and asked to sacrifice in particular, I think it’s such a – such a difficult undertaking.

The supports that were built in round about it were placed as best as they can to try to support people, but I think inevitably for anyone who is essentially cutting themselves off from society and is surrounded by fear because we’ve said to them, “You’re at a higher risk”, inevitably there’s additional things that I think we could have done. And I often wonder whether having some sort of inbuilt mechanism for greater mental health support during that period would have been of an additional benefit for them.

Counsel 3: Do you think that would be of additional benefit if such a situation were to arise in the future?

Professor Sir Smith: I sincerely hope that we never have to revisit a situation like shielding, but certainly if there was evidence that it was beneficial, then one of the things I would certainly want to do would be to make sure that we had a much greater degree of mental health support for people who are put in that position.

Counsel 3: Do you recall discussions about the dividing line between the clinically vulnerable and the clinically extremely vulnerable?

Professor Sir Smith: I don’t actually.

Counsel 3: Do you think you weren’t involved in those discussions?

Professor Sir Smith: I’m not sure that I was involved in those particular discussions, but I’m happy to say, from my view and my perspective, is that I think that those were often discussions which were really difficult to judge as to where a line could or should be drawn, given the evidence that was available, and it was very much about using as much clinical judgment in that space.

I guess we should remember it wasn’t just the four UK CMOs that drew up these groups and that they in turn received advice not just from the DCMOs who were involved in some of the discussions but also from other clinical groups as well during that time and that this tried to create as judged consensus as possible as to how to take this forward.

Counsel 3: What was your role as CMO in relation to communication with those on the shielding later named Highest Risk List in Scotland?

Professor Sir Smith: So, as CMO one of the things that the policy team who was overseeing this part of the response was keen to do was to establish, if you like, a trusted route of communication to people who were shielding. That was something that I was very happy to take part in. So whether it be in terms of the numerous letters that we used to try to communicate with this group or whether it was in the daily briefings just trying to kind of target specific information, I was quite happy to try to be a part of that. And there was a feeling, and I think it is a legitimate feeling, that that communication coming from a senior clinician was better.

It also meant that before communications were actually sent out to people, myself and my clinical team could look over those communications and make sure that they captured any clinical information that was contained within them, or information about risk, as fully and as articulately as possible to be understood by the people that were going to be receiving them.

There was a lot of concern, particularly in the initial stages, that some of the information which was coming across our desks but I don’t think actually made it out to people was perhaps too full of jargon or terminology that might not be fully understood. So working with various groups and working with the clinicians who were involved just to try to make these as plain English as possible was something which I think we tried to contribute.

Counsel 3: Was the question of whether the list should be extended to a wider cohort within the clinically vulnerable revisited by the CMOs?

Professor Sir Smith: It was revisited on several occasions, and both in CMO meetings and at the Quint meetings that we referred to this morning. There would be on occasion a proposal which would come forward with data to consider whether such a group could reasonably be asked to undertake shielding as part of the response to try to keep them safe.

There were very few groups where the data was so compelling that we actually felt it was – we should expand the shielding list to include them, as I say, given the scale of the undertaking. But there were – nonetheless, there were – I can think of two to three groups where that decision was made at a later stage to bring them onto that list.

The other thing that worked well for Scotland and which gave us an additional degree of flexibility was in that so-called group 7 that we had where if a clinician, be they a consultant or a GP, felt that one of their patients was at such sufficient risk to undertake shielding there was a mechanism by which they could be notified to the relevant central authorities to add them to the list so that they could be provided with the support necessary. And that was particularly something which worked well with some neurological conditions such as motor neurone disease and some other conditions as well.

Even just the prospect of – in Scotland we have a significant issue with frailty and multi-morbidity, and sometimes just the cumulative collection of diseases that people gather over the years might have been thought to put them at an additional risk that would have allowed clinicians to add them to the list if they felt it was necessary.

Counsel 3: Is it right that the original advice was to shield for at least 12 weeks?

Professor Sir Smith: Yes, that’s my recollection.

Counsel 3: This was to come to an end on 18 June 2020 –

Professor Sir Smith: Yes.

Counsel 3: – but was extended to 31 July 2020, is that right?

Professor Sir Smith: Yes. Again, that’s my recollection of events.

Counsel 3: You deal at paragraphs 208 to 209 of your Module 3 statement with the approach in Scotland to the phasing out of strict shielding. Is it right that following 31 July 2020 there was no return to strict shielding, albeit that guidance to those on the Highest Risk List was amended in accordance with the level of risk in Covid-19?

Professor Sir Smith: That is correct. The strict shielding that we asked people to undertake in those early stages and which was so onerous on them I don’t think was ever revisited at all. That doesn’t mean to say there wasn’t periods of times where we asked them to consider additional precautions, but there was an attempt to try to move towards a more risk-based strategy where people were able to – or provided with sufficient information to be able to try to manage their own risk, recognising that you or I or anyone might have a different attitude to risk or tolerance about what – given what was important to them.

Counsel 3: What was the rationale behind the shift in approach?

Professor Sir Smith: It was that recognition that shielding as a process had the potential to cause harm, had the potential particularly to cause isolation, and what we wanted to do was to try to recognise that each person was different, each person had a different attitude to risk, if isolation was so difficult for them that it was interfering with their health in other ways, to equip them with the ability to be able to assess that risk for themselves and take the approach which was most suited to their risk tolerance.

Counsel 3: Can you help with the transition phase that there was between 19 June and the end of July 2020 and its purpose?

Professor Sir Smith: Yes, I remember the conversations relating to that particularly around about the timing of when we could cease the formal approach to shielding, particularly because at that point in time wider society had already begun to open up quite significantly and we were already starting to see fluctuations and case profiles at that time.

Counsel 3: I would like to deal, please, with additions to the shielding list and in particular the addition of adults with Down’s syndrome and the addition to the list on 30 September 2020.

Have I got the date right there, as far as you’re aware?

Professor Sir Smith: It would certainly be consistent with my recollection, a date around that time.

Counsel 3: It’s right, isn’t it, that this was a UK-wide decision made collectively by the UK CMOs?

Professor Sir Smith: Yes.

Counsel 3: Could we have on screen, please, INQ000470017. This letter is dated 30 October 2020. It is a standard letter in your name which was to be sent to every adult with Down’s syndrome in Scotland. We can see that in the first line of the letter.

Can you help with why it took a month between the agreement of the UK CMOs that adults with Down’s syndrome should be added to the list and the letter to adults with Down’s syndrome in Scotland being drafted?

Professor Sir Smith: No, I wouldn’t be able to give you an explanation for that.

Counsel 3: I hesitate to say “sent” because it does appear to be a pro forma letter. Can you help at all with the timeframe of how soon after 30 October that was sent?

Professor Sir Smith: I’m afraid I wasn’t involved directly in the sending of these communications, other than to agree the content.

Counsel 3: Looking at the terms of the letter, and in particular:

“Firstly, this letter is not asking you to start shielding, but we want to talk about why we are adding you to the shielding list in Scotland.”

That follows quickly upon:

“[I’m] writing …

“1. To tell you that you have been added to the shielding list in Scotland.”

Do you think it was potentially confusing for a recipient of this letter to be told that they were being added to the shielding list but not being asked to shield?

Professor Sir Smith: I think the terminology was difficult at that time, because the terminology that was still in common usage by the public was that of “shielding”, and certainly there was a desire to move away from that as a term and to speak about people – the clinical and most vulnerable as a group.

With the benefit of hindsight, I would far rather have had a letter that tried to explain things in different terms there. I don’t like the term “shielding”, I have to say now. I think it was used perhaps out of necessity as the best description that people had for what was being asked of – at that time, but given that we moved away from shielding as an intervention so early in the pandemic, I think we should have moved away from the terminology and almost started afresh.

The terminology is different, of course, from the identification of individuals who needed some level of enhanced protection, whether that be about how we started to sequence people in the vaccination programmes or how we started to communicate people who might be at additional risk at times of changing epidemiology. I just think that by that stage the term “shielding” was probably already out of date.

Counsel 3: That document can come down now thank you.

In terms of review of the impact of shielding, which became the highest risk list, is it right that the Scottish Government commissioned Public Health Scotland to develop an evaluation framework for the shielding programme in 2020?

Professor Sir Smith: That is correct, yeah.

Counsel 3: Did this work inform the change in approach in Scotland away from strict shielding or did that happen later?

Professor Sir Smith: I think that – if memory serves me correctly, and I am not sure, I think most of the approach – the change in the approach to shielding was actually led by feedback directly from people who were – who had been asked to shield. I think there were perhaps some preliminary findings from that report by Public Health Scotland which also informed the change in approach but I couldn’t say that with certainty to you.

Counsel 3: It appears from the documents that there was a deep dive into the impact of shielding done by the Covid-19 advisory group, the Scottish group, and certainly you may have seen in the documents some evidence of feedback. Is that what you are referring to?

Professor Sir Smith: Yes.

Counsel 3: The Scottish Government shielding division produced a report with the results of a January 2021 Covid-19 shielding survey in February 2021.

Could we have that on screen, please. It is INQ000147410. Starting on page 32 please.

Under the heading “Gaps in support and access”:

“Survey respondents were asked whether there was anything they were struggling to access at the moment to try to identify where more or additional support could be provided.”

“The majority were struggling with challenges that are not easily addressed by government support …”

And there are a number of things listed there:

“However, there are still people struggling with access to healthcare appointments (23%) which has been identified in previous research with this group.

“Many of the comments in the open text responses … were aligned with existing categories such as healthcare appointments and exercise, but people wanted to provide more specific information about the types of appointment they were missing out on. A number of responses … highlighted challenges …”

Which is after they returned to work, so unrelated there.

What was done by you or your team to address the difficulty that survey respondents were having accessing healthcare appointments, and can you help with what the main reason was for these access difficulties?

Professor Sir Smith: Again, I remember conversations which took place with shielding division in relation to some of the findings of this and with other parts of the health service as well. And one of the common things that came through in feedback was the sense of fear in particular that people had in attending healthcare settings at that point in time. That was something which we found in the general population as a whole, particularly in those earlier stages before people began to get vaccinated, but it seemed to be more disproportionate and more evident in people who had been asked to shield as a consequence of that.

There were various ways that we could try to deal with that, and one of the ways was to – where it was appropriate to do that, was to make a greater emphasis on some of the digital platforms that we were now using for healthcare consultations, such as NHS Near Me and whether that would be a potential medium that could be –

Lady Hallett: Could you slow down, please.

Professor Sir Smith: Yes. Whether that could be a potential medium that would enable people to access healthcare in a way that they felt safer to do so.

It didn’t fix every case because – sometimes because of the underlying nature of people’s conditions that these tended to be people with chronic illness. Sometimes it meant that attending healthcare facilities or having clinical staff come into their homes to see them was necessary, and that was still a time of, I remember, great apprehension from many of them.

Ms Price: Setting aside the apprehension and the fear, it sounds on the face of this survey as though there was a difficulty – a logistical difficulty in accessing appointments. Did you see any evidence of that?

Professor Sir Smith: I can say that I wasn’t involved in any conversations that related to logistical difficulties, but those may have taken place with other parts of government.

Counsel 3: As a final question on shielding, is there anything about the shielding Highest Risk List programme in Scotland that you would do differently with the benefit of hindsight?

Professor Sir Smith: Shielding was a really horrible undertaking to have to be asked to do I think. And isolation, I don’t think that any of us who were not in that shielding group can really understand what the sense of isolation and fear must have felt like. And people that I’ve spoken to, that’s the bit that comes across more than anything else.

So is there anything I would have done differently? I think it was always a question as to whether it was absolutely the right thing to do. But even with the benefit of hindsight, given the information that was available at that point in time, it did seem like one rational way of trying to protect people who were recognised as being at additional risk.

The one bit I would change was – was to ensure that there was a greater degree of mental health support for people who were undertaking the shielding and whether additional supports could be made available just to reduce that sense of isolation that people felt.

Counsel 3: I would like to move, please, to escalation of care protocols.

Could we have on screen, please, INQ000485979, page 26.

This is a statement provided by Caroline Lamb to the Inquiry.

Paragraph 103 here deals with the ICU uplift short life working group, which she says made recommendations to you, the CMO and the COO and then the Cabinet Secretary for Health and Sport, is that right?

Professor Sir Smith: Yes, I remember that that was a group which was very active particularly in the early part of the pandemic.

Counsel 3: Of the group’s work, Ms Lamb said this:

“The [cabinet secretary] took the final decision to implement an additional 30 Level 3 intensive care beds (for patients requiring highest levels of clinical support) across Scotland on a permanent basis.”

Is this referring to the permanent increase in ICU capacity in Scotland which was decided upon?

Professor Sir Smith: So this is part-way through the pandemic when the temporary increase – the doubling of ICU capacity has already taken place with the ability to be able to go up to three times the previous limit. And what this group had recommended was that there should be an additional 30 permanent beds even within that structure within Scotland.

Counsel 3: The last sentence in this paragraph says this:

“The SLWG do not have decision making authority. The SLWG was reconvened in November/December 2021 with a reduced membership to make recommendations on changes to the ICU surge escalation policy.”

Can you help, please, with what the original ICU surge escalation policy covered?

Professor Sir Smith: So the original surge escalation policy was – examined how the ICU beds and available equipment in Scotland would be reconfigured to allow, first of all, doubling of capacity within ICU with ability to be able to surge further to a tripling of capacity, should it become necessary.

As far as I can recollect, I don’t think it ever went beyond that doubling of the capacity, but sufficient particularly ventilator equipment was either purchased or repurposed in order that there was sufficient ICU beds to double the capacity across Scotland through that initial work.

That was a very rapid piece of work that, which was led by, at that point, the chief operating officer with strong input from the Scottish Intensive Care Society. Some of my advisers in government also participating in that and the Royal College of Anaesthetists.

The equipment was available to repurpose in Scotland, particularly the ventilatory equipment, particularly with the theatres being less used at that point in time. One of the rate limiting steps was in having sufficient trained staff, particularly trained nursing staff, to be able to safely provide care to all the available beds. That was looked at. People were redeployed, retrained to try to augment that working force.

I have to say that this was an area of clinical practice where I have nothing but a huge amount of respect for the huge variety of clinicians, because, you must remember, it’s not just doctors and nurses who worked in these ICU units, but there was a whole variety of inputs from various clinicians and the work they undertook in often very difficult circumstances was incredible.

Counsel 3: Was it any part of this group’s role to look at escalation in care protocols, and by that I mean, for example, clinical prioritisation guidance or tools –

Professor Sir Smith: I’m not –

Counsel 3: – or, is that escalation simply a reference to the number of beds?

Professor Sir Smith: That surge is – that escalation there is just about number of beds which were available.

Counsel 3: So logistics rather than what to do if there aren’t enough beds?

Professor Sir Smith: Yes.

Counsel 3: I would like to ask you, please, about decisions which were made at UK and Scottish level about whether to issue guidance on escalation of care or clinical prioritisation in the context of capacity challenges.

Could we have on screen, please, INQ000048276.

This is an email chain from March 2020.

Could we start, please, on the top of – on page 7, the email dated 27 March 2020.

This is between DHSC employees. It refers to work which had been done on guidance on capacity challenges in critical care.

And just scrolling down, please, the information contained below, which is being forwarded in this email by way of background, explains the issue:

“The four UK CMOs commissioned experts to develop guidance for clinicians on clinical prioritisation for Covid19. It has been led by [a number of people being named].

“The guidance has been developed with engagement and input from a number of stakeholders including the BMA, GMC, National Voices, Royal Colleges and a Moral and Ethical Advisory Group.

“It is intended to provide clinicians with a decision-making protocol for use during the COVID-19 outbreak when ICU beds are in unprecedented demand.

“Although clinicians ordinarily make ethical judgments as part of their work, this tool would [bypass] usual processes and is intended for use when judgements must be made quickly and possibly by more junior clinicians.

“The protocol is based on a scorecard system which takes into account age, co-morbidities and frailty to determine the most appropriate clinical pathway for an individual in the event that there are not ICU beds.

“It is intended to provide a fair, consistent, ethical and compassionate framework for clinicians to make decisions about critical care pathways.”

Going up a page to page 6, please, there is an email about halfway down the page sent the same day, again between DHSC officials, and it says:

“Hi both

“I just spoke to [an official], who had just come out of a meeting with the 4 CMOs and the guidance team. They want to send the guidance and the graphics to Ministers for clearance on Sunday afternoon ideally. So we agreed it would be important to have the comms handling sent up at the same time, as Minsters/CMO are likely to have strong views on how this is communicated.”

Going to page 2, please, and the email dated 28 March 2020.

In the middle of the page:

“I’ve just heard from CMO’s office that this isn’t going to ministers tomorrow and has been paused for now.”

Then underneath we can see some bullet points there:

“SoS and Simon Stevens have spoken and have cancelled the Ministers implementation group tomorrow (was due to be 11am and specifically to discuss the clinical prioritisation tool).

“- This is because both are unhappy with issuing this tool as it stands (noting how potentially controversial it is/difficult landing).”

And, finally, going up to page 1, the email dated 30 March. This is from their private secretary and deputy head of the office from the CMO England office:

“This is now paused indefinitely, possibly never to be picked up again, now that there is less/no need for it given early signs suggest demand may stay employee capacity.”

Taking this in stages, can you explain, Professor Smith, what work the UK CMOs commissioned and why?

Professor Sir Smith: I wasn’t involved in that, so I’m afraid I can’t explain that. This pre-dated my time as CMO, and this didn’t involve my role as DCMO.

Counsel 3: You had no involvement when –

Professor Sir Smith: No.

Counsel 3: – you were in your DCMO role?

Professor Sir Smith: No.

Counsel 3: Did you receive any handover from your predecessor about this?

Professor Sir Smith: No.

Counsel 3: Were you aware this work had been done at all?

Professor Sir Smith: I was aware during March that there was some work which was being looked at in relation to escalation policies, but I’m afraid I wasn’t in any way involved in it.

Counsel 3: Does it follow that you can’t assist with who decided that there would be no UK-wide guidance –

Professor Sir Smith: Yes.

Counsel 3: – issued on clinical prioritisation?

Professor Sir Smith: I’m afraid I would be unable to offer you any insight into that.

Counsel 3: That document can come down now, thank you.

Did you consider whether such guidance was necessary?

Professor Sir Smith: I was aware that there was similar guidance which had been put in place as a document in response to the pandemic flu, written by NHS England in the early 2010s, in relation to what steps may be necessary if a health service became overwhelmed with cases of a pandemic flu. At that point in time in the pandemic response, although it was certainly becoming evident that there was going to be quite significant pressures on healthcare services, the agreed strategy, if you like, was to try to expand the capacity of key points of the service rather than look at these type of escalation policies.

Counsel 3: Did you give any consideration to issuing such guidance in Scotland regardless of what the UK position was on guidance?

Professor Sir Smith: No.

Counsel 3: The last email we looked at suggests that the decision to shelve the draft guidance was ultimately made because it was felt that capacity would not be reached after all, would you agree with that reading of it?

Professor Sir Smith: Certainly the capacity with the ability at that stage in the modelling we were receiving suggesting that there was still sufficient capacity should we need to increase, if you like, the next stage of surge planning, which was to increase the capacity in ICU to three times the original amount, that we still wouldn’t reach that capacity, I would not have said that there was a need to address that through this type of guidance or policy, whatever you want to call it, at that stage.

Counsel 3: Research conducted on behalf of the Inquiry for Module 3, by way of a survey of 1,683 healthcare workers in the UK is summarised in the report at INQ000499523.

Can we have that on screen, please.

Have you had an opportunity to look at this report?

Professor Sir Smith: I have, yes.

Counsel 3: If we could go to page 14, please.

It is reported here that for both the first and the second waves of the Covid-19 pandemic, over half, 54%, of respondents reported that some patients could not be escalated to the next level of care due to lack of resources.

We needn’t go to it, unless you wish me to, but the executive summary also records that A&E doctors, at 71%, and paramedics, at 62%, were more likely to have been unable to escalate care due to a lack of resources at either wave.

Accepting that it’s not possible to know what proportion of the respondees were based in Scotland or the relevant areas, do the results of this survey surprise you?

Professor Sir Smith: In some sense they do. So particularly – they don’t surprise me in terms of the overall capacity within hospitals, which was running at a level which was really quite – the number of people who were in hospital was really quite immense and exceeded capacity on several occasions, with hospitals having to adopt novel approaches to how they used other clinical areas to effectively provide care in as well.

Where it surprises me is that, given that there was the ability to be able to – certainly in Scotland, and I can only speak for Scotland in these circumstances – to expand the capacity for care further, particularly with ICU capacity, and the fact that we at no stage went into that further expansion of capacity, it surprises me slightly from that perspective that that was never necessary.

Counsel 3: Were you told at any point in the relevant period for Module 3 that resource-based escalation of care decisions were being made in Scotland?

Professor Sir Smith: No.

Counsel 3: That document can come down now, thank you.

I’m helpfully being told could we have that document back up, please. The bottom of page 8, please.

We can see that there are – 138 of the respondees were from Scotland, which is about 8%. Just to make sure that we’re being complete about it.

Professor Sir Smith: Yes.

Counsel 3: Had you become aware that healthcare workers were finding themselves in the position of having to make resource-based escalation of care decisions, would it have changed your view or would it have informed your view on whether there was a need to have a clinical prioritisation tool or set of guidance?

Professor Sir Smith: So I think, first of all, I would have wanted to fully understand exactly why people’s perception was that they were unable to escalate care and what resources were limiting that fact, and if that was a resource which could be rectified, which could be addressed either through expanding into pre-planned surge capacity or by additional equipment, my preference would certainly have been to make sure that we were taking steps to do that.

If, however, it was an issue of overwhelming demand that was meaning that people could not expand beyond the existing capacity either through lack of equipment or lack of space to expand into, then I think that leaves very, very difficult decisions for clinicians. It’s one of the reasons that during the early part of the pandemic in Scotland certainly we set up a network of ethics committees within each of the health boards to assist clinicians when they were faced with difficult decisions about treatment for patients. Those ethics committees provided support to clinicians in each of the health boards, but there was also a central ethics committee that they could refer back to if necessary or mutual aid if an ethics committee in one area in particular became overwhelmed by requests, and that would have been a second stage, I think, prior to adopting a formal escalation policy, because, you know, let’s be clear, by adopting an escalation policy we are asking clinicians to make very, very difficult decisions about who goes onwards for particular types of treatment and who doesn’t. Often that’s clear-cut, that’s the role of clinicians to be able to do that, to be able to take decisions based on the clinical evidence as to who might benefit from a treatment or for whom unfortunately we have to say a particular path of treatment is futile and is the wrong approach.

But what we were asking – potentially asking patients to do – if the service was becoming completely overwhelmed in those circumstances really asking clinicians to kind of pre-select and judge, even when treatment may have some beneficial impact, who should go forward for that as well. So that’s not a place that any clinician or anybody wants to be and, therefore, I would see an escalation policy that started to outline that type of approach as very much an approach of there’s nowhere else to go and nowhere else to explore first.

Lady Hallett: How should this information have got to you? If this is how the healthcare workers felt, I appreciate it wasn’t by any means a perfect world, but, you know, what would be the system for getting that information to you or to people at your level?

Professor Sir Smith: I mean, it would usually rely on chains of communication. So your particular areas were reporting that there was a clinical governance issue. And I’m going to use an example of, let’s say, an acute medical ward which finds that it’s so overwhelmed with seriously ill people that can’t escalate out of there –

Lady Hallett: Yes.

Professor Sir Smith: – to ICU. So that would be a clinical governance incident, if you like, which would – at a local level, using the local governance structures would be looking to see what we could try to do about it.

Lady Hallett: But there ought to be in place a chain of communication that would then get the information –

Professor Sir Smith: And that relies on the regular dialogue that we have – certainly from my position with medical directors around the country, from a medical director’s point of view with the clinical directors that they have within the hospitals and so forth, that relies on that chain of communication being as strong as possible.

And there’s also, it has to be said, that in Scotland certainly, and I can, again, only speak for the Scottish experience, there is the ability for people who feel that their concerns are not being addressed or listened to, specific whistle-blowing channels that people can take to raise that information as well.

Ms Price: Thank you, my Lady.

Any consideration that was given to whether there should be guidance issued on this subject, would it have been an important consideration to assess the impact particularly of a scoring system on older people and those with comorbidities or disabilities? And would that have been – that consideration have formed a factor in the decision one way or the other?

Professor Sir Smith: It would have to have been. An important part of the consideration is to look to see how this was impacting in different groups. I think – and I think that’s the basis of my point here is that what we’re – it should – should you enact a policy like that, you have to be very, very clear about the ask that you’re making of people and how that impacts on individuals and their families.

Counsel 3: Turning, please, to the use of DNACPRs, starting, please, with the policy and guidance on this. Is it right that there was in place before the pandemic a do not attempt cardiopulmonary resuscitation policy dated August 2016?

Professor Sir Smith: So there was a policy which related to DNACPR which formed part of a wider process, which was about anticipatory care planning.

Counsel 3: Could we have on screen, please, INQ000429278.

This is the policy which is dated August 2016. Going to page 17 of the document, there is a section on advance decisions about CPR decision, about CPR treatment.

The paragraph underneath the heading says:

“Advance decisions about CPR can be difficult and can cause considerable emotional distress but, when discussed in the context of goals of care and choices about available treatment options, they can also be extremely reassuring and a huge relief for some patients. There is evidence that patients experience conversations about DNACPR as positive and empowering when they happen within the context of wider discussion about emergency care planning and end of life care goals … The appropriateness of CPR should always be considered on an individual patient basis. There is never a justification for blanket policies to be in place.”

And then it goes on to set out the two situations in which an advance decision that CPR should not be attempted can be made.

So it was clear from this guidance, wasn’t it, that DNACPRs should be always considered on an individual basis, and there is never a justification for a blanket policy, would you agree?

Professor Sir Smith: I agree very strongly with that.

Counsel 3: Could we have on screen, please, INQ000429276.

This is a letter from you to GP practices and chief executives of NHS boards dated 10 April 2020.

The letter deals with anticipatory care plans for vulnerable and high-risk patients which a DNACPR might be part of but should not be equated with, is that right?

Professor Sir Smith: And I think that’s a very important point that you have picked up on there as well: not to conflate the two issues of anticipatory care planning and DNACPR.

Anticipatory care planning is a much wider approach to how you express preferences of a patient in the way that they receive their care. DNACPR may be a part of that but does not have to be a part of that, and that’s an important aspect of this type of ACP planning.

Counsel 3: You refer in this letter to an earlier letter which was sent to GPs and hospital clinicians addressing plans for supporting patients identified as being at the high risk of mortality and severe morbidity from Covid-19. That earlier letter included the wording in bold towards the bottom of the page which says:

“In addition for some patients in this group it may be appropriate to discuss their Anticipatory Care Plan. This discussion should be done by a clinician but again it doesn’t have to be a GP.”

The letter goes on:

“In fact for many patients in the very high risk group it would be more appropriate for them to have their ACP conversation with their treating consultant, who may be in a better position to discuss appropriate treatment options based on the patient’s individual circumstances.”

The reader was signposted to an ACP template. There are some key points about ACPs set out in the letter.

Then at paragraph 4 over the page, please, there is this:

“We recognise that DNACPR discussions are always difficult ones to have, even more so when being done over the telephone. It is recognised that CPR has a very low chance of success when cardiopulminary arrest is in the context of severe Covid illness. Therefore we would like to reassure clinicians that there is no specific requirement to have a DNACPR discussion as part of this ACP conversation, unless the patient raises this and wishes to discuss it, or the clinician feels strongly that they need to discuss it. Instead the focus should be on supportive discussions with patients about what matters to them should they call ill with Covid. The HIS ACP template provides a framework for your discussions, with the option to complete the DNACPR section, if this is discussed.”

And then there’s guidance about difficult conversations attached to annex B.

The Inquiry understands that there was a statement made on 7 April 2020, so just before this letter, by a group of UK age sector organisations, including Scottish Care and Age Scotland, and they raised concern that blanket decisions appeared to be being made around the care and treatment options available to older and vulnerable people who had felt pressurised into signing DNACPR forms.

Do you recall that statement being made?

Professor Sir Smith: I don’t recall the particular statement you’re referring to actually. What I do recall, and just to expand on my answer there just a little bit, I do recall we had become aware from feedback from sources – and I can’t remember what those sources were – that there were some concerns about the interpretation of how ACPs were being conducted in some places.

Counsel 3: The reference we looked at on the first page of the letter, the wording in bold from the previous letter, was there a concern that that previous letter had been interpreted wrongly as saying that DNACPR conversations should be happening?

Professor Sir Smith: I don’t recall any specific concern in relation to that but, given the concerns that were being raised from other sources, one of the things that I wanted to do was to reinforce actually what the purpose of the letter was, and that was to have good conversations with people about their wishes for care and to be able to – one of the important aspects of the anticipatory care plan is to be able to capture that in a way that is shared across the healthcare system. It seems ludicrous in this day and age that we don’t have systems that talk to each other across primary care into secondary care, and so we rely on mechanisms such as this.

In Scotland we have this instrument we call the electronic key information summary that acts as, if you like, a portal and a conduit in sharing the most important information about people’s care from that primary care setting into secondary care setting.

Counsel 3: Okay.

Professor Sir Smith: And this was really an attempt to make sure that we had got this right and that people were concentrating on information that was relevant and important to people about their care, and not to be conflated with anything else.

Counsel 3: At the time of writing this letter, were you aware there were concerns of blanket policies –

Professor Sir Smith: Yes, I –

Counsel 3: – and a lack of individualised assessment?

Professor Sir Smith: I would be – I couldn’t say for certain I would be aware that there were – this was being interpreted as a blanket policy, but I was certainly aware by this stage that there were concerns about the interpretation of how some of these conversations would be conducted.

Counsel 3: What I want to understand is what this letter was aiming to address. Was it aiming to address reports of inappropriate use of DNACPRs?

Professor Sir Smith: Primarily it aimed to address the importance of getting the right information at an ACP and please don’t be distracted about conversations around DNACPR, but if you’re going to have them, do them in the proper way.

Counsel 3: If there was a concern being raised about blanket policy, something which is clearly not justified on the face of the policy that was in place at the time, wouldn’t it have been better to have said that in terms in this letter?

Professor Sir Smith: I don’t think that – I couldn’t say to you whether we had that information or not at the time that this letter was written. I do recall being questioned by a journalist about it at one of the lunchtime briefings that I gave, but I couldn’t say with certainty whether that was before or after this letter was written.

Counsel 3: Did you see any evidence of a correlation between the use of DNACPR notices and the availability of beds, staff, ventilators or oxygen supply?

Professor Sir Smith: No.

Counsel 3: Could we have on screen, please, INQ000236625.

This is the statement of Jim Elder-Woodward on behalf of Inclusion Scotland.

Going to page 11, paragraph 40, there is this:

“There is an absence of official data on the number of DNACPR notices made during the pandemic. In England, the Care Quality Commission was commissioned by the Department of Health and Social Care to conduct a special review of DNACPR decisions taken during the Covid-19 pandemic. No equivalent investigation has taken place in Scotland.”

Do you agree with Mr Elder-Woodward’s observations about an absence of official data on the number of DNACPR notices made during the pandemic?

Professor Sir Smith: I would agree, and I have to say that I’ve never seen any data in relation to that.

Counsel 3: Is it right that there has been no review in Scotland of DNACPR decisions taken during the pandemic?

Professor Sir Smith: You could certainly question as to why that there hasn’t been a review –

Counsel 3: Well, my question, first of all, is, is that right that there hasn’t been?

Professor Sir Smith: Yeah. I mean, I think it’s – it’s a reasonable question to ask, to which Scotland would not have an answer.

Counsel 3: Okay. So you can’t help with why there has been no review?

Professor Sir Smith: No.

Counsel 3: Do you consider that such a review should take place?

Professor Sir Smith: If the data were available to be able to provide an accurate review, then it would certainly add additional learning into the practices that were undertaking at that time. I would – my own view would be it would be more useful not to examine just the DNACPR notices but also to examine the wider ACP production at that time and to try to determine how useful they had been in terms of the care that was provided.

Counsel 3: I would like to turn, please, to stay-at-home messaging. You refer at paragraphs 229 to 230 of your statement to reports that during the stay at home messaging periods there was anecdotal evidence that urgent suspicion of cancer referrals was falling and that some data suggested reduced presentations at emergency departments for chest pain or myocardial infarctions. What did you and your team do to address these concerns?

Professor Sir Smith: This became a concern that people either through altruistic motives or through – as I think I’ve said before, through apprehension and fear of attending healthcare facilities, they were simply avoiding them, even at times when they were particularly ill. The data suggested the presentations for chest pains and myocardial infarction at emergency departments were lower than we would have expected. I mean, given that that illness is not suddenly going to change within a population that that was a great concern. But also urgent cancer referrals had dropped off really quite significantly as well. And, again, there’s no logical explanation as to why that should happen.

So it suggested there was unmet need within the population. So trying to address that was about allaying fears about presenting, and trying to discourage those particularly who had altruistic motives to put those aside and to seek the help that they required.

So through various communication channels, mainstream media, through our lunchtime briefings, through social media we tried to really raise the message that – certainly in Scotland the message was not “protect the NHS” but actually if you’ve got a problem that has serious and significant symptoms, particularly if those symptoms are lasting, then you should seek attention for it.

Counsel 3: Do you think the stay at home message got the balance of risk right, that is the risk to people contracting Covid-19 with the consequences of that risk and the risk that people would take the message at face value and not seek medical help if they needed it?

Professor Sir Smith: I think the stay at home message by itself probably got the balance of risk right, I think where additional messaging was layered on top of that. So I think k the stay at home message had to be layered, nuanced and be accompanied by, however, you know, if you need medical attention you should continue to seek it.

There was perhaps messaging from other parts of the UK at that point of time which was less useful in terms of influencing people’s way of approaching care.

Counsel 3: Coming, finally, please, to lessons learned and recommendations. Looking back at both the things that went well and the things that went less well in the Scottish healthcare system response to the pandemic, are there any key lessons learned or recommendations that you would like to tell the Chair about that we haven’t already covered?

Professor Sir Smith: One of the things that I think was really evident in terms of the response was just how flexible, agile and committed the staff was over the whole course of the pandemic. I think in retrospect we were too slow to provide support for those staff, and that’s something which we could have looked at at a much earlier stage, particularly psychological support, safe space for them to debrief, in particular after what was quite harrowing experiences for many of them, and that’s something which I would like to have seen more of.

I think that there’s many lessons that we learned along the way and that we adapted. I mean, the sheer – the sheer scale of the response and the way that we were able to deploy new ways of treating people so rapidly, when you think the research in normal times takes something so long to be applied consistently across practice and yet sometimes within days people were completely changing their approach to care, whether that be through the use of greater use of anticoagulation or through the greater use of proning, or introduction of new agents such as dexamethasone. The speed at which that was done was really quite incredible. And I think if there’s any learning from me, it’s actually about how you then replicate that in normal times to make sure the breakthroughs, advances in therapy are consistently replicated in that same way for the future.

And we innovated, we innovated, very, very quickly. So platforms, again like I’ve mentioned, NHS Near Me and the way that that was – went from a fairly small-scale project, nonetheless really useful, particularly for patients in a rural environment, the digital platform that was then used extensively right across Scotland, and actually not only supported care at a difficult time but perhaps even enhanced care because people were suddenly able to attend with others, and perhaps were enabled and supported to ask questions that they should be asking about any aspect of their care. So NHS Near Me, that type of innovation I think is something which again we want to make sure that in the future we don’t(sic) embrace.

But the biggest risk for me just now in all of this is that, given what we have done over the last five years with the healthcare system, how we have expanded, innovated, how we have valued it at times, is that we lose sight of the fact that healthcare has to continually evolve, and it’s an expensive business, and we must continue to make sure that we invest in our healthcare system, our healthcare workers in a way that allows us to keep pace with innovation and developments that are necessary to make it a much more resilient and sustainable service in the future.

Ms Price: My Lady, those are my questions. Perhaps that is an appropriate moment.

Lady Hallett: It is, thank you very much.

We will come back at 3.20 pm for the last session and I promise you we will finish today.

(3.11 pm)

(A short break)

(3.25 pm)

Lady Hallett: Ms Mitchell, I think you are going first. You have been asked questions by Ms Mitchell before, Sir Gregor.

Questions From Ms Mitchell KC

Ms Mitchell: We have heard earlier in the evidence about the complaints from healthcare professionals about lack of PPE. I would like to ask you about the experience of the Scottish Covid Bereaved, whom I represent, as instructed by Aamer Anwar & Company.

We have heard that when visiting hospitals there was insufficient PPE for them to use and on occasions they were asked to use their own. Firstly, were you aware of this difficulty?

Professor Sir Smith: I have to say to you that no, I was not aware of that type of difficulty that people were experiencing.

Ms Mitchell KC: Earlier in your evidence you also spoke about chains of communication and dialogues with clinical and medical directors. Should you have been made aware of it?

Professor Sir Smith: It would probably have come up through a different route if it was being escalated to Scottish Government, to be honest. It would probably have come up to a route where the responsibility for the provision of PPE and IPC lay rather than through the channels of communication that I had.

Ms Mitchell: But should you have been made aware of it?

Professor Sir Smith: I certainly would have liked to have been made aware of it.

Ms Mitchell: And if you had been made aware of it, what could you have done about it?

Professor Sir Smith: The most important thing that I could have done in that circumstance would have been to engage both with colleagues within Scottish Government but also with the locations where people were experiencing particular problems to make sure that adequate supplies were made available to people.

Ms Mitchell: And just taking that point and moving on from her Ladyship’s questioning earlier, does that mean that there is some lacuna or there should be some lacuna fix to ensure that the CMO is getting decisions – is getting information from, as it were, the hospital floor that you would be interested in? Is that something that could be remedied in the next pandemic?

Professor Sir Smith: So in that specific example that you are giving, of course I would have been interested in it. If you like, the chain of governance that existed there would have been through infection prevention and control policy areas that have the levers as to try to address any problems there are there. So that would – as I say, although I would have been interested in, that the Chief Nursing Officer would have been probably equally if not more interested in learning that there were issues with that.

Ms Mitchell: Moving on in respect –

Lady Hallett: Just before you do – and it won’t come out of your time, Ms Mitchell, don’t worry – I’m just getting the impression – I mean, you are meant to be advising the Scottish ministers, but because you have all these different subgroups, specialised groups, there are different chance of communication and it is not coming to you. How can you advise Scottish ministers properly on policy if this information isn’t coming to you?

Professor Sir Smith: I guess because I’m one of many advisers to Scottish ministers, all with specific areas of remit around about the advice that they provide. So the Chief Nursing Officer, for instance, would provide specific advice to Scottish ministers in relation to infection prevention and control, and that usually wouldn’t be an area that the CMO would provide or be the prime focus of advice to Scottish ministers.

Ms Mitchell: I’m obliged. When my lady looked at me I actually thought she was meaning for me to move on!

Lady Hallett: No, no, I was wondering if I could interrupt.

Ms Mitchell: That’s why I didn’t do that.

Moving then on to a further issue, again another experience of the Scottish Covid Bereaved was that when trying to visit loved ones, different health boards, hospitals, wards even, took different decisions in relation to visiting. The decisions weren’t consistent, including whether or not end-of-life visits would be allowed. Were you aware of this inconsistent approach being used?

Professor Sir Smith: I wasn’t aware of the inconsistent approach but I was very clear at all times that end-of-life visiting was an incredibly important aspect of care that people were able to provide and it was very important that people could have time with loved ones at such an important moment.

Again, I was – it is possibly not correct to say I wasn’t completely unaware because there were one or two instances I remember which were discussed and which were then taken back to individual units or hospitals by the person-centred team who looked after this to try to make sure that they were adopting and interpreting the policy correctly.

Ms Mitchell: Well, it is certainly the experience of the Scottish Covid Bereaved that a number of people didn’t get to visit their loved ones before they died. And these inconsistencies have caused much distress to the members of Scottish Covid Bereaved, and no doubt others not in the group, some of whom are finding out that others were able to visit their loved ones, and they blame themselves for not having, for example, pushed hard enough or tried to escalate matters to get them to be seen.

Ought a consistent approach to have been taken to those visits and how can we ensure that happens in the future?

Professor Sir Smith: The first thing to say is I’m very sorry to hear of that experience that people had and I can only imagine the impact that that has had on them not only at the time but the enduring impact that it has had. And you are absolutely right to say that there should have been a much more consistent application of that approach across the system.

Ms Mitchell: I wonder if I could now move on to DNACPRs. We have heard – one of my questions was, do you agree that the blanket approach ought not to be used, and we have heard in strong terms you say it shouldn’t. Can I check with you on that question, what do you actually mean by “blanket approach”? What is it an approach of or to?

Professor Sir Smith: What I will tell you should happen, rather than what shouldn’t happen, is that any discussion with any person, or their family if the circumstances dictate that, in relation to anticipatory care planning or DNACPR should be individualised to that person. It should be mindful of the circumstances which they find themselves in.

And I really struggle to see how any approach to proper anticipatory care planning or DNACPR can be conducted if it is done in a blanket fashion, without recognising the individuality and the preferences of a person who is at the centre of it.

Ms Mitchell KC: Can I just check, do you mean a blanket approach in relation to, for example, classes of people or a blanket approach as in a one-time decision taken on DNACPR which covers the future of that person’s healthcare?

Professor Sir Smith: So I mean both, because one of the most important aspects of anticipatory care planning – and again I use the broader term here, DNACPR being part of that – is the need to continually review that process that’s been done, to re-visit it. It is a dynamic process rather than a once-and-done process.

Ms Mitchell KC: So you would agree that each decision should be taken after consultation with the patient and, if possible, their family?

Professor Sir Smith: Yes. And it should be revisited at an appropriate timescale as well.

Ms Mitchell KC: Are you aware, as CMO, of any breaches of professional codes of practice or ethical practice in Scotland in relation to the use of DNACPRs?

Professor Sir Smith: I’m not aware of any of those breaches, and I’ve not been made aware of any cases that have been taken by any of the regulatory authorities against any clinicians in relation to that.

Ms Mitchell KC: Again, I suppose following up on the first question, should you be aware of or should someone be making you aware of the answer to that question?

Professor Sir Smith: So, if those – in Scotland we have a series of what we call responsible officers, particularly – and I can only speak to the experience of medics here in the system, doctors in the system, and the first point of call should any of the regulatory authorities, in this case the GMC, be taking action against any clinician because of a breach of their professional responsibilities, and in that case it would be to their responsible officer on a health board level.

It wouldn’t be escalated to the CMO unless there was a suspension put in place for a particular practitioner or – I’m trying to think of any other circumstances where it might be escalated to me in normal times. Really it’s only if someone was suspended or there was such a pattern of an approach that the GMC felt it was necessary to notify me over.

Ms Mitchell: I’m just over my time, so I’m obliged, my Lady. Perhaps if there is such a review those matters could be looked at.

Lady Hallett: Thank you, Ms Mitchell. A special what in place? You talked about:

“It wouldn’t be escalated to the CMO unless there was a …”

Something or other.

“… in place …”

And both I and the stenographer missed it.

Professor Sir Smith: Okay. So it wouldn’t be escalated to me unless there was a theme that emerged that was so important that the GMC felt it had to be noted –

Lady Hallett: A “special theme”, was that the word?

Professor Sir Smith: Yes.

Lady Hallett: Thank you.

Can I just go back, pursuing questions that Ms Mitchell asked, to the point about revisiting DNACPRs. You talked about them being time-limited. I mean, I’m just a bit troubled by this idea that I might go to see a GP on X day and agree care planning because I’m feeling in a huge amount of pain and I’m feeling pretty low, and I might say, you know, “I’ve had a good life, that’s it”, but then I – the pain might ease a bit and – I’m just a bit concerned about this idea that I might say do not attempt to resuscitate me and it gets transferred when my circumstances are changed.

So help me when it comes to when you talk about “ought to be revisited within a certain time period”, what kind of circumstances are they?

Professor Sir Smith: So we have to be very clear about the circumstances, and if we go back to the document that was shown by counsel in terms of the guidance to the circumstances when the DNACPR conversation might be appropriate for someone, and generally that’s when it’s evident that actually the process of CPR would ultimately be futile in terms of achieving its aim of resuscitation someone whose heart has stopped. Okay?

The circumstances that you’re describing there for me wouldn’t warrant a DNACPR conversation. It would warrant certainly an ACP to be formed about the preferences for your care, but we’re not in a situation that you’ve described there whereby approaching CPR would actually be kind of a futile response to your circumstances.

Lady Hallett: So basically every decision ought to be a clinical decision. So whatever the patient has agreed with the GP, when the patient gets to hospital it ought to be a clinical decision by the hospital doctors, after consultation with the patient and their family if possible?

Professor Sir Smith: That should be the case in every aspect of care. Every aspect of care should have an element of what we call sheer decision-making in it.

Lady Hallett: You can’t have any transfer of agreement to –

Professor Sir Smith: That is the purpose of ACPs, is to be able to express within the ACP what certain preferences are so that that can then be picked up by the hospital clinician, and it act as a really good starting point with the conversations with people about the care that they’re going to receive.

Lady Hallett: But it was only a preference expressed at that time which will still remain a clinical decision on the day –

Professor Sir Smith: And shared decision-making must be the method by which we are undertake that decision-making.

Lady Hallett: Thank you.

Mr Dayle, where are you? There you are. Can you see Mr Dayle over there?

Questions From Mr Dayle

Mr Dayle: I ask questions on behalf of the Covid-19 Airborne Transmission Alliance, or CATA, and I have a few questions.

There was a step-down from FFP3 to FRSM which occurred in mid-March 2020. CATA considers this to have been driven by lack of resources, a shortage of FFP3s for healthcare workers.

Do you agree that the moral and ethical position should have been to inform healthcare workers of the shortage and assure them that the appropriate protective equipment would be provided as soon as possible?

Professor Sir Smith: I’m not aware that there was such a critical shortage that they weren’t available for the appropriate circumstances that had been identified by the expert groups who were examining this just now. So I’m not sure I understand the whole nature of your question.

Mr Dayle: Assuming that that proposition is a – or CATA’s contention is factually accurate, would you agree that it would have been the appropriate route to take, that is to inform healthcare workers of the shortage and assure them that the appropriate protective equipment would be provided as soon as possible?

Professor Sir Smith: We appear to be talking about a hypothetical situation here, and I guess my – the point I would make in response there is that communication and dialogue is really important with people as to the reasons why any particular route is being taken and, in the circumstances, again I back to my point, is that the level of PPE which had been identified by the expert groups, that was identified on the basis of the evidence that was available to them and wasn’t dictated by supply chains at that point.

Mr Dayle: Very well. My next question, do you accept that a significant number of healthcare workers might have lost trust in organisations or institutions that are supposed to keep them safe in terms of guidance and so on?

Professor Sir Smith: I think that there was a very marked response from clinicians at that point in time and as a result of their experience, and many of them felt let down by the organisations they were working for. I think that’s evident from the survey which we have already examined earlier on today and some of the feedback which was certainly evident through the BME membership.

The reasons for that I think are complex and deal with a range of things from supply issues, which were evident in some places, through the personal risk that people thought that they were personally experiencing as a result of them working in a very hostile environment, I have to say, at times in terms of their busyness and overloaded with various considerations as they tried to kind of treat cases, but also just because of the conflicting information, which was very evident at that point in time, and I think that conflicting information, some of which had unfortunately no basis, led to a reduction in trust in people.

Mr Dayle: Are you concerned that this loss of trust as it exists might have implications for future pandemics when healthcare workers weigh up the risks to themselves and their families if they do go out to work?

Professor Sir Smith: I think there’s lots of learning we need to take from this last pandemic, and the purpose of this Inquiry is to try to distill as much of that as possible so that we can learn from it and implement that in the future. I think much of that, as stated towards the end of my own evidence, was about how we value our workforce and how we support them to do the jobs that they want to do. And it is becoming increasingly evident for many, many reasons that the number of people choosing careers in healthcare is falling.

Now, as I say, the reasons for that are very, very complex, but there’s never been a more important time to make sure that our workforce does feel valued and is given the proper equipment and capacity within the teams to do the jobs that they come to work to do.

Mr Dayle: This is a reflective question. Do you believe today that the approach that was taken then was consistent with the precautionary principle?

Professor Sir Smith: I believe that the approach that was taken at that point in time was consistent with the precautionary principle on the basis of the evidence that was available at that time.

Mr Dayle: In what you referred to as the second meeting with our Dr Gillian Higgins in April 13, 2022, and this was in her capacity as founder of Med Supply Drive UK, which is a charity set up to address issues of appropriate RPE for healthcare workers, during this meeting Dr Higgins suggested a range of manufacturers and universities that might help, and this is referenced just for the record at paragraph 62 of her statement, and I should point out, by the way, that she states there – she declared a complete absence of any commercial interest in the potential sources of reusable respirators.

So healthcare workers, at the time of your meeting in 2022, they were being permitted to request RPE. But the meeting, it was clarified, the point of it was really to allay anxieties and concerns about safety, rather than an acceptance of the scientific evidence on airborne route of transmission.

In light of the expert witness evidence provided to the Inquiry to date, what is your understanding now of the route of transmission of Covid-19? That is, do you accept the airborne route of transmission of Covid-19?

Professor Sir Smith: So I think we’ve already gone over this in the evidence that I’ve given today is that there are a variety of ways that Covid is now known to transmit. Through droplet, absolute short and through longer range aerosol, all of these, there’s a much greater degree of evidence now for those routes of transmission than there was. There’s less evidence and less thought about the kind of spread through fomite routes that were thought to be more important in the early stages of the pandemic. But it’s my view and, as I’ve stated earlier on today, I have held the view for a long time that aerosol transmission has certainly played a role.

Mr Dayle: And, finally, do you support a change in the current guidance in the national IPC manual, given the evidence the Inquiry has heard about airborne transmission?

Professor Sir Smith: I am confident that the IPC cell will continue to keep all available evidence under review and based on that evidence will make the best recommendations for what protective equipment should be used and how IPC should be approached.

Mr Dayle: Thank you.

Lady Hallett: Thank you very much, Mr Dayle.

Mr Wagner.

Questions From Mr Wagner

Mr Wagner: Good afternoon, hello. My name is Adam Wagner and I ask questions on behalf of the Clinically Vulnerable Families.

I want to ask you, first, please, about the recommendation in relation to face coverings for the general public and the fact that FFP2 and FFP3 masks were not specifically recommended.

I want to ask you about one subsection of the public, which is hospital patients. Do you accept that the risk of being infected with Covid-19 in hospital was at times high?

Professor Sir Smith: The evidence would certainly suggest from nosocomial data that there was – there were points in time when there was a high risk of infection within hospital.

Mr Wagner: And do you accept the evidence from Professor Beggs – if I refer to Professor Beggs, do you know of that evidence that’s been given to the Inquiry?

Professor Sir Smith: Could you expand on that?

Mr Wagner: Professor Beggs has given evidence about the – about the routes of transmission, particularly for the Inquiry, and also he’s given some evidence as an expert on FFP2 and FFP3 masks, and one of the things he says, and I’ll check whether you agree with this or not, is that FFP2 and 3 masks offer good protection to the wearers of the masks from inhaling infectious aerosols as compared to surgical masks or face coverings that don’t?

Professor Sir Smith: So there is certainly evidence that FFP3 masks give the wearer more protection against inhaling aerosols. That also comes unfortunately with the downside of wearing those masks as well, which is often overlooked, and that’s the length of time to which people can generally wear them comfortably, and also some of the skin problems that people suffer as well as a consequence. But I think it’s generally accepted that FFP3 masks give more protection than the other masks, such as fluid resistant surgical masks.

Mr Wagner: Well, bearing those two points in mind, the high risk of Covid-19 in hospitals at times and the fact that FFP3 masks give higher protection against aerosol transmission, do you now think it would have made sense to recommend FFP2 masks – sorry, FFP3 masks for at least some hospital patients?

Professor Sir Smith: That would have been something which could have been risk assessed in local circumstances, but it would have been an onerous undertaking. I think – guess we should remember that masks, the personal protect evidence equipment, were only part of a range of protections which were in place, each one layered on top of each other which gave protection to both patients and staff within hospitals, and the consistent application and implementation of all measures of that – under that hierarchy of controls was certainly one of the most important aspects in the kind of research findings as to how you provided effective protection within hospitals.

So it may not have added a huge amount of additional protection and could have added something at a cost to the individual wearer, particularly if asked to wear them for long periods of time within a hospital bed.

Mr Wagner: But it may – would you agree, it added some protection, particularly for vulnerable patients?

Professor Sir Smith: It may or it may not. That’s yet to be determined, I think.

Mr Wagner: What about in July 2020? And I just want to ask you, you gave evidence earlier about clinically extremely vulnerable people being given advice as to shielding, and once the shielding programme was ending. Should they have been advised about the potential benefits of wearing higher-grade masks like FFP3 to help them more safely return to the community?

Professor Sir Smith: My own view in this is that with the benefit of hindsight, given the fear and apprehension that many people experienced at that point in time, then it’s something that could certainly have been considered as to whether the provision of those masks – type of masks would have given them greater confidence to re-establish themselves in society.

Mr Wagner: You say it could have been considered, should it have been considered?

Professor Sir Smith: Again, we go back to whether it would have given, in the real world, an additional amount of benefit which would have actually protected the patient. Particularly with those kind of higher grade of masks where fit testing is necessary as well. Sometimes, if not worn properly, if not applied properly, it can give a false level of reassurance that actually could be detrimental.

Mr Wagner: But that can be overstated, can’t it, because it is a 10/15-minute fit test and then it’s done?

Professor Sir Smith: If people are able to apply it and use it consistently.

Mr Wagner: I want to ask you about the Chief Medical Officer’s technical reports which you were shown earlier. It says in the IPC section that feasibility of implementation was one factor in choosing to recommend that the public wear face coverings rather than particular masks.

Once the supply chain pressures eased for the higher grade masks, do you think recommendations about mask wearing should have changed for the general public?

Professor Sir Smith: My own personal view is no.

Mr Wagner: Do you want to expand on that?

Professor Sir Smith: Again, I go back to the acceptability of – for the general public of particular approaches, and to mandate particularly high levels of mask wearing for the general public I think would have been – the biggest risk with that would have been to ensure that more people didn’t follow the guidance in relation to – when you are wearing particularly the highest grade of mask for prolonged periods of time, it can be quite an unpleasant experience, and I think there were points of time in the pandemic where you could begin to see that even wearing the lower grade masks was something which many members of the public found difficult.

Mr Wagner: What about the public guidance – and I’m talking about guidance not mandates here – explaining relative benefits of one kind of mask over another? Do you not think that would have at least allowed people to make their own decisions about whether, on the one hand, there is the possible discomfort of wearing the mask, the 15-minute fit test, and on the other there is the risks to them, particularly for vulnerable people, of getting Covid. Do you not think it would have been better to have put that in the hands of the public rather than just saying face coverings are fine?

Professor Sir Smith: At this stage, it is difficult to give you an answer to that, I have to be honest, because it would have been interesting to know to what level many members of the public wanted to protect themselves. Many of these masks were freely available to purchase and the FFP3 masks were more difficult to come by and, as I say, had to be preceded by fit testing to make sure that they were appropriately used as well.

I don’t know where the public’s mind lay in all of this. It is something that could have been explored but unfortunately it wasn’t.

Mr Wagner: I want to ask you about the implementation of the shielding policy. I appreciate you explained before that you weren’t as involved in the earlier stages of shielding as you were in the slightly later stages. I think it is right to say that the UK chief medical officers were tasked with identifying which people should be classified as clinically extremely vulnerable and therefore go on to the shielding lists.

Now, in England, there was then a division where I think NHS Digital were tasked with tracking the people down once the groups were identified as a cohort, and they had some difficulties accessing that data and there is a national audit report, for example, that says it took three weeks from when a decision was made to expand the shielding list initially to getting those names on the list, getting the letters out.

Do you know whether any of those kinds of issues were replicated in Scotland?

Professor Sir Smith: I recall that there was huge efforts made both within the digital teams, who worked primarily in the organisation, the NHS organisation, the NSS, but also working with clinicians, particularly in general practice, to make sure that the correct coding was in place for patients who might need to shield. Without that clinical coding in the digital electronic record, it was very difficult to identify patients. And it has to be said that in not all instances was that coding leading to the identification of people who either should be shielding or sometimes it led to the identification of people who actually didn’t require to shield, although that was less – seldom a problem.

The way we tried to overcome that in Scotland was to give flexibility for clinical teams to add people to the list themselves, if they felt that their patient was at sufficient risk, but there was a period of time of intense activity to make sure that data sharing arrangements were in place to be able to identify them.

Mr Wagner: Did you or your office give any advice when developing and maintaining the shielding programme about how many of the people who fell into the clinically extremely vulnerable cohorts lived with other people and particularly with other people who weren’t shielding?

Professor Sir Smith: We didn’t give specific advice, nor were we asked to give specific advice in relation to that but it was a consideration that I remember being discussed on many occasions about the impacts not only in the clinically extremely vulnerable people but also in their families and family life as well.

Mr Wagner: So when designing or amending the shielding programme, did you consider and take into account the feasibility and the real-world challenges of individuals who were asked to shield who lived with other non-shielding people, for example, with children who had to go to school every day?

Professor Sir Smith: Those things were discussed frequently. I remember conversations about the difficulties taking place.

Mr Wagner: And was it ever considered whether the focus should be changed or amended so that you weren’t just advising the shielding people but you were advising almost like a separate cohort, the non-shielding individuals who lived with them how to manage that dynamic?

Professor Sir Smith: It was – if the question is, was it ever considered to expand it to those who were living in the same household as well, then, no, it wasn’t considered in those terms, but certainly there was consideration about actually what advice could be given to support people living in those households to live as easily as possible, given the huge undertaking.

It was less of a problem at the beginning of the process of shielding because of the national response on all of us essentially being confined to our houses, but it became more evident as the response went on and as people started to enter society again, and at that point we became aware of some apprehensions that existed within households about actually family members going back out into society and risking coming into contact with Covid as well.

Mr Wagner: Thank you, those are my questions.

Lady Hallett: Thank you very much Mr Wagner.

And, lastly, I think we have Ms Hannett.

By all means look at Ms Hannett when she asks the question but she won’t consider it a discourtesy if you then turn to me to make sure your voice is in the microphone.

Questions From Ms Hannett KC

Ms Hannett: Thank you, my Lady.

Professor Smith, I appear on behalf of the Long Covid groups. I have a small number of questions for you on the approach to Long Covid in Scotland.

Starting off that in your evidence this morning you described Long Covid services in Scotland as being ad hoc and as being dependent on the particular health board. The experience of the members of the Long Covid groups has meant this has been a profound difficulty for some of them in accessing treatment. So, for example, a healthcare worker member has found that in the absence of specific Long Covid clinics in Scotland she was unable to access the care she needed and had to pay for the services required.

Similarly the expert report of Professor Brightling and Dr Evans on Long Covid says that the small number of boards that set up dedicated Long Covid services were unable to meet the demand for them.

In the light of all of that, do you accept that the variation in Long Covid services within Scotland meant that very many patients had difficulty in accessing suitable care?

Professor Sir Smith: Apologies for turning away from you as I answer –

Ms Hannett KC: Not at all.

Professor Sir Smith: – but, yes, I do accept that many patients do had problems accessing the care that we would have wanted to be able to provide them with Long Covid. And more than that, I think that some of those problems are enduring and they still need to be fully addressed with greater long-term understanding of what services have the biggest impact for people who suffer Long Covid and how we can figure those in a way that they are easily accessible at the right time to maintain people in employment, and that we continue to learn and research this area so that perhaps in the future there will be different options for treatment as well.

Ms Hannett KC: Thank you, Professor Smith. In your evidence this morning you also said that you were not able to assist the Inquiry with whether the Long Covid services had improved after September 2021 as there is an absence of data.

Are you able to assist the Inquiry as to why there is an absence of data on the efficacy of Long Covid services in Scotland?

Professor Sir Smith: I’m afraid I’m not, no.

Ms Hannett KC: And, finally, third, what recommendation would you ask the Inquiry to make now to ensure equitable access to Long Covid healthcare to adults across the four nations and in particular in Scotland?

Professor Sir Smith: One of the most important things that we can do when considering Covid is the fact that across services in the healthcare sector we’ve essentially absorbed activity that’s associated with a high volume infectious disease, and that continues to be the case even to this day, is that we will continue to see a high volume of cases as a consequence of Covid with all the sequelae, whether that would be Long Covid or whatever as a consequence of that.

And we need to make sure that rather than just expecting healthcare services to, forgive the term, but consume their own smoke in terms of how they respond to that, is that sufficient additional resources are made available to make sure that we are able to provide the care that clinicians want to provide to care in every circumstance.

Ms Hannett: Thank you, Professor Smith.

Thank you, my Lady, that is all from me.

Lady Hallett: Thank you very much. I think that completes the questions now from the core participants.

Thank you very much for your help, Sir Gregor. I’m sorry, as I said to your colleague yesterday, I can’t give you an undertaking I’m not going to impose upon you again. We do understand the demands we make upon you and your office when we do ask you to assist the Inquiry, but I’m very grateful for your help in preparing the statement obviously, and today I hope it hasn’t been too bad a day for you.

Professor Sir Smith: Thank you.

Lady Hallett: Thank you. Tomorrow at 10 o’clock, please.

(4.05 pm)

(The hearing adjourned until tomorrow at 10 o’clock)