7-07-2025

(10.31 am)

Lady Hallett: Ms Carey, as you know, today is the 20th anniversary of the bombings on 7 July 2005. Fifty-two people died, hundreds were severely injured, and many thousands more were traumatised. I presided over the inquest into the deaths of the 52 victims. The anniversary will be marked in various ways across London. I won’t be taking part in them because of the importance I placed on progressing this Inquiry and this module in particular, but I’m sure our thoughts and prayers are with all those who suffered and are still suffering as a result of the four bombs.

Ms Carey: My Lady, they are. Thank you very much.

Lady Hallett: Thank you.

Ms Carey: Can I hand over to Mr Beech, please.

Lady Hallett: Mr Beech.

Mr Beech: Good morning, my Lady. May we please call Ms Mary Cridge.

Ms Mary Cridge

MS MARY CRIDGE (sworn).

Questions From Counsel to the Inquiry

Mr Beech: Thank you. Good morning.

Ms Mary Cridge: Good morning.

Counsel Inquiry: You’ve provided two very helpful witness statements to the Inquiry already, and just in your statement then you’ve set out that you’ve been with the Care Quality Commission, or CQC, as the director of adult social care since July 2022 and before that during the first wave of the pandemic you were the interim deputy chief inspector for adult social care; is that correct?

Ms Mary Cridge: Yes, I was one of three deputy chief inspectors reporting to the chief inspector at that time.

Counsel Inquiry: And you’re the first, I think, witness in this Inquiry to give evidence on behalf of the CQC and I understand you just wish to make a very brief reflection on that.

Ms Mary Cridge: Yes, thank you.

I just wanted to take the opportunity on behalf of CQC to express our deep sympathy to all those who lost loved ones, relatives and friends during the pandemic, and to emphasise our huge thanks and gratitude to all those who worked in health and care and the supporting services at the time. Thank you.

Counsel Inquiry: Thank you.

You state in your statement that the CQC’s objective is to make sure health and social services provide people with safe, effective, compassionate high-quality care, and you set out that the CQC’s responsibilities include registration, monitoring, inspection, assessment and regulation of services.

Ms Mary Cridge: Yes.

Counsel Inquiry: At the risk of grossly oversimplifying, if we add in taking enforcement action, is that a broad summary of what regulation encompasses?

Ms Mary Cridge: Yes, it is.

Counsel Inquiry: And just very briefly, why is it important that the CQC regulates adult social care?

Ms Mary Cridge: It’s important to have a set of standards that we can all expect to be – that health and care is delivered to, so that those commissioning care, those providing care and, most importantly, those receiving care know what they can expect and what good care looks like.

Counsel Inquiry: And regulation provides both assurance to the government, to central government, and the public about the safety and quality of those services; is that fair?

Ms Mary Cridge: Yes.

Counsel Inquiry: Thank you. CQC also then regulates a variety of regulated activities but for the purposes of this module, it’s fair to say that care homes, both with and without nursing support, and domiciliary care services, fall within CQC’s regulatory remit?

Ms Mary Cridge: Yes, they do.

Counsel Inquiry: And then if we took a snapshot at 1 January 2020, there were some 15,525 adult care homes registered at the CQC and some 9,415 domiciliary care providers?

Ms Mary Cridge: Yes.

Counsel Inquiry: Thank you. And just at the outset then, so if we take that snapshot as 1 January 2020, what matters were the regulator concerned about, about the sector generally? In a state of care report for the year 2019/20, it was noted that there was continued fragility of the adult social care provision. What was concerning the CQC?

Ms Mary Cridge: Well, the – social care has had, at that time, had a number of challenges and the market was fragile. It’s important to understand, it is a market made up of independent providers, a mix of profit and not for profit, from the very small to the very large and all points in between, and that’s a strength, the diversity of the sector. But staffing, pressures on staffing, funding, paying for care, the competition that there are for workers, so access to care, and quality of care, there were a lot of challenges that the sector were facing pre-pandemic.

Counsel Inquiry: You mentioned there quality of care, and I would like to spend a bit of time this morning exploring one of the mechanisms CQC would use to assess or regulate that in the form of regulatory inspections.

In your statement, you do set out in quite a bit of detail about the various processes, about the various stages of inspections, that they can be comprehensive or focused on a specific issue, and that it would involve collection from the providers, reviews of notifications, followed by the actual on-site inspection and a report.

Again, at risk of grossly oversimplifying, is that a fair summary of what the inspection process would involve?

Ms Mary Cridge: Yes, that’s right.

Counsel Inquiry: Thank you.

If we could please have on the screen, then, your statement at INQ000584245. It’s page 68, paragraph 203.

And at this point in your statement you set out the time frames for inspections of adult social care services. It’s not a straight time frame, it depends on previous outcomes and inspections; is that right?

Ms Mary Cridge: Yes. These we refer to as our, sort of, frequency rules and set the, sort of, general timescales, but there has always been a place for responsive inspection. So we would go sooner than this if we had intelligence of risk of harm, whether we’d had, you know, whistleblowing and so forth. But this is the general sort of framework at the time.

Counsel Inquiry: Are these time frames set out in statute or is this a CQC policy?

Ms Mary Cridge: I’d have to confirm to you exactly the basis of it. I think it is an understood expectation, possibly discussed with the department, but we can confirm that point to you.

Counsel Inquiry: And prior to the outbreak of the pandemic, then, was the CQC consistently hitting these targets of inspecting within 30 months, 12 months, 18 months, as required?

Ms Mary Cridge: I would say generally there were – always the unexpected risk would take priority. So, you know, it was a large inspection programme ongoing, but generally, this is what happened.

Counsel Inquiry: Then if I could just refer to your supplementary statement, at paragraph 41 you set out that:

“The CQC recognises that on-site inspections are integral part of regulation …”

And, at paragraph 42, that they:

“… play a vital role in ensuring the safety and quality of services …”

And why does the CQC consider that on-site inspections play such a vital role?

Ms Mary Cridge: Well, there is something about seeing the place where care is being experienced and delivered. There are the sights, the sounds, the smells, frankly. And it’s an opportunity to observe care being delivered, to get a sense of the place, of the atmosphere, to observe the interactions between staff and those receiving care, and to have a chance to sit and talk to people. So it is a really important part of regulation.

Counsel Inquiry: Would there be any suggestion on the part of the CQC that inspections are in fact normally just box-ticking exercises of little or no merit?

Ms Mary Cridge: I don’t recognise that description of inspections. Of course we have a framework, underpinned by the regulations that set out the standards of fundamental care, the fundamental standards that are required.

We have to have a framework. We have to have criteria by which we make our judgements, because we do aim for, of course, consistency of judgement. But an inspection is based on intelligence, about what we already know, about what people using the service say, and engaging with people and getting feedback, from those in the service, from people working there, from their partners. It’s a rich tapestry of information, certainly not a box-ticking exercise.

Counsel Inquiry: Thank you.

Now I’m going to take you to the period where there was the decision to suspend inspections. You do set out at paragraph 217 of your statement, that:

“Before the pandemic we had already considered pausing some routine inspection activity, albeit only for short periods [of time].”

So there had been occasions in the past, then, where CQC had taken such steps?

Ms Mary Cridge: In healthcare, yes, not social care. That, during a particularly bad winter, we temporarily, for a matter of I think four weeks, paused inspections of urgent care, ambulance trusts, and a – sort of A&E departments, but for social care – so CQC had paused inspections before.

Counsel Inquiry: Thank you. And is there any reason why it was never deployed in adult social care?

Ms Mary Cridge: Well, we had – we hadn’t had the circumstances that would require it. The pandemic was an unprecedented situation, so yes, we hadn’t done it before that.

Counsel Inquiry: Thank you. Well, if we perhaps now just take a look at that decision.

If I could please have on the screen INQ000398833, please.

And there’s a very helpful heading halfway down entitled “Routine inspections to cease”.

First of all, was this a CQC decision or was it a Department of Health decision? Were CQC the decision maker?

Ms Mary Cridge: CQC was the decision maker. The decision was taken by our gold command.

Counsel Inquiry: And could you just briefly outline what factors led CQC to determine on 16 March that there’s to be a ceasing of routine inspections?

Ms Mary Cridge: Yes, it was routine inspections, not all inspections. We were concerned to assess the situation, support the sector, and allow providers to concentrate on their own delivery of care. We wanted to focus on risk, on where we could make the most difference in these circumstances, and also to protect and safeguard our own staff. We didn’t want to be unwittingly spreading the virus through inspection.

Counsel Inquiry: You said there was a focus on risk. Was there an acknowledgment at that stage in the CQC that adult social care settings posed a particular risk?

Ms Mary Cridge: All care settings pose a risk. What changed at that stage was the level of risk that triggered activity. So in April, we had the test of extreme risk. The other factor was at that stage we didn’t have any access to PPE. So that was another consideration.

Counsel Inquiry: I’ll come on to explore issues about testing and PPE and inspectors in due course.

At paragraph 231 of your statement then you set out that:

“In the early stages of the pandemic, in the healthcare sector, there was mounting pressure from government, external organisations, and the public for CQC to suspend routine inspections.”

Was there any similar pressure to suspend routine inspections in adult social care?

Ms Mary Cridge: I don’t know, reflecting back, if I could distinguish between the pressure in the health setting and social care. There – I recall the pressure was – the question was whether we should stop inspecting. I think there was a sense that it might be a distraction, get in the way and so on, and this is in the early days when we were all still finding our feet.

Counsel Inquiry: You go on, then, to describe in your statement, and this is paragraph 218, that – before 16 March, and you say:

“At the start of the pandemic, prior to supporting routine inspections, we cancelled a number of routine inspections and directed our activities at areas which we considered to have the most risk. We consider that there were some environments (such as social care settings, domiciliary care …) which presented inherently more risk in terms of opportunities for people to success from unseen harm and that they would therefore need to be monitored carefully.”

So before then, before 16 March, there was an acknowledgement that some inspections would have to cease but inspections in adult social care would have to continue. Was that not a perfectly proportionate approach which could or should have continued ongoing in the pandemic?

Ms Mary Cridge: Well, we wanted to inspect, as soon as we could do so safely, and to target the areas of risk, but take into account the three factors that we’ve already referred to, and we had the level of extreme risk. So yes, we did want to be able to continue, and we did, of course, restart in-person inspections once we had access to PPE and the numbers of those inspections grew from May onwards.

Counsel Inquiry: To what extent did the need for oversight of these vulnerable or more at-risk settings play a part? What balance did CQC ascribe the need to continue oversight or monitoring of adult social care when making these decisions?

Ms Mary Cridge: Well, that’s right, it wasn’t all about inspection. And it’s never been all about inspection. We’ve always been – gathered and have received intelligence to help us inform our decisions about what we do, where we do it, and when. But we – there was live discussion at the time about what we could do instead when we weren’t undertaking routine inspections. And throughout the months that followed, we devised a number of different ways to undertake contact with services and monitoring of them.

Counsel Inquiry: And we’ll come back to that also in due course, Ms Cridge.

But just let me ask you, then: the intent was obviously to reduce footfall and protect the homes but would the risk of a solitary inspector or a relatively small inspection team going into a care home with PPE and testing, could that not have adequately dealt with those concerns and ensured that inspections could continue in a more routine manner?

Ms Mary Cridge: Well, yes. I mean, testing – throughout 2020, CQC had the same access to testing as the general public. We were seeking access to testing from about July onwards. And had we had stocks of PPE and the same testing as available, you know, to health services, that would be my hope for the future: that in future we could take a different tack because we could have the wherewithal to continue in the way that we didn’t have in March, April 2020.

Counsel Inquiry: There was extensive correspondence between the department and CQC on the issue of testing and I think it takes until December for regular asymptomatic testing to be put in place?

Ms Mary Cridge: Yes.

Counsel Inquiry: On the issue of PPE, when do you consider that the CQC had ample PPE in place to be able to conduct a meaningful …

Ms Mary Cridge: Okay, so like many organisations, we were scrambling to get hold of PPE. I think it was 28 April, certainly late April, that we had a stock of PPE in our Newcastle office, but getting hold of it was a challenge. At that stage, there was great demand on courier services, and it could take five or six days to get the PPE from the office to the inspector, and – but supplies eased and processes got easier as we went on, and it was something, by the autumn, that inspectors could order in the same way they’d order stationery, and the delivery was much quicker.

Counsel Inquiry: If I may return, then, to the proposition underlying my question. Had there been testing and PPE available in March 2020, would it have been necessary for the CQC to make its decision?

Ms Mary Cridge: I think – my personal view is that a different decision would have been made if we could have continued safely, wearing PPE, observing infection control procedures, yeah, I think it would have been different.

Counsel Inquiry: Just moving on, you’ve mentioned a couple of times already this morning the threshold, if I may use that terminology, of extreme risk.

Last week the Inquiry will have seen a series of messages between the then chief executive and the then Secretary of State for the Home Department. I don’t think we need the actual text on-screen but if we could have your statement at INQ000584245, page 84, paragraph 256, please.

In this exchange you set out what was in those texts, the Secretary of State’s request to “pull back more than they are currently planning on inspections & data collection”.

And the response from the CQC chair was then: we already have “pulled right back on inspections”, only “where we believe abuse or serious harm may be happening”.

How was the CQC to get that information about abuse or serious harm in the absence of, as you say, being the eyes and ears of getting in and smelling the place?

Ms Mary Cridge: Well, actually, it isn’t usually a routine inspection that flags up abuse and harm. We receive a great deal of information. People proactively contact CQC. We have our customer contact centre and we have – there’s a place on the website where people can contact us. We’ve got a process called “Give feedback on care” for people and their relatives to complete, and we have contact from staff in services.

And during this time, we saw a huge increase in the amount of contact from both the public and from people working in services. 50% increase from the public, 55% from people working in services. Over the course of pandemic, we had some 2.5 million contacts, so we weren’t short of information.

That sort of intelligence informed where we went when we got out in May, and in most of those early inspections, we did indeed find serious issues, and took immediate action.

So that’s how we got that information, through people contacting us.

Counsel Inquiry: And if we could turn then almost to – that’s how you got the information. If I could turn to the threshold applied of, if you’ve said, extreme risk, as it says there “where we believe abuse or serious harm may be happening”.

On reflection, was that threshold too high in a scenario where you’re relying on whistleblowing or safeguarding or contacts with care homes? And in the absence of being there, was the threshold of only where you believe there was abuse or serious harm too high to ultimately end up going into care homes to see what was happening?

Ms Mary Cridge: Well, the extreme risk was lowered, and we had a separate process to make decisions. It wasn’t – and it wasn’t a case of we’re not going to inspect so nothing happens. We wouldn’t leave the service like that. So we’d be in contact usually with the local authority, who often are the commissioners of the service, and we would do what we could to help. There was a lot of sort of practical help going on in those early days. I know we’re going to come on to talk about the monitoring, but of course we were talking to services themselves during this time, so it wasn’t a case of we’re concerned and do nothing; it was a case of we’re concerned, does it meet that threshold for us to go out? And if it doesn’t, who else can help? What can happen in the meantime?

Counsel Inquiry: And just then on reflection, do you consider that the decision to pull right back on inspections, it’s expressed here by the Chief Executive, was likely or could have the potential for exposing vulnerable service users to harm?

Ms Mary Cridge: Well, as I’ve said, it – the history of routine inspections is very valuable and we get a lot of information, but that is not usually where the most problematic information is found. People put on a good front for an inspection, whereas the intelligence that comes to us, by what people experiencing that service tell us and their families, that is invaluable. It points us where to look. But I would say that – you know, as you’ve prompted me to say, if we had our time again, with the PPE in place, we could have continued in a different way from that which we were able in April 2020.

Counsel Inquiry: Thank you. If I could move on and perhaps move back to INQ000398833. And you state there:

“In adult social care, in the absence of a single national oversight body, CQC will act as a support for registered managers – our inspection team will be there to produce advice and guidance to the providers throughout this period …”

First of all, you note the absence of a single national oversight body. First question, is that the CQC? And the second question is, if it’s not, who should it be?

Ms Mary Cridge: Well, we aren’t the single national oversight body in the sense and in the same way that NHS England were and are for the NHS, in that we don’t direct the services, don’t tell them how to do things. But in the context that we’re discussing, we thought, you know, we know these sectors really well, that we could be a voice piece alongside those who represent providers to – in discussions with the department and government to help the sector be understood and help to get the best support for them that we could.

Counsel Inquiry: Does this shift, if it is even a shift, moving to supporting registered managers to provide assistance and guidance, did that reflect a shift in the CQC’s position away from regulating and scrutiny, if I can use that word, to a slightly different approach of “We’re going to help managers”?

Ms Mary Cridge: I would say that our approach has always been to be supportive, because actually what we’re all interested in, providers and CQC, is good quality safe care and people having positive experiences, and in social care, it’s about people living their best lives. So I’d say we were supportive. We’ve always given guidance on how we expect the regulations to be met and so on. What was very different was the level of practical guidance. So a conversation with an inspector about “we haven’t got enough PPE”, that, you know, normally an inspector would not then be ringing round to both the local authority and other providers, and organising for PPE to be shared. And it’s that level of practical support that was different.

But I would say, generally, we are – well, we are supportive of the sector and of providers.

Counsel Inquiry: We’ll come to work through, perhaps, some of those mechanisms and support momentarily. Just while this document is on the screen, however, the – “Continuing the use of provider information returns” – it’s noted there that this would continue and they would be a source of information. They were subsequently stopped on 15 April 2020. Why, having expressed on 16 March that these returns would be important, were they then stopped by the time we get to 15 April?

Ms Mary Cridge: Well, I wasn’t directly involved in that to know exactly, but the – those PIR returns are information about a service, and we use it to plan and take account of, in our routine inspections. So I think it would have been much clearer in those – between those two decisions. What we didn’t stop was formal notification. So we continued to get information from providers. But yes, we did pause PIRs and when they came back, they came back in a reduced form. That was all about lifting burden.

Counsel Inquiry: I think the Inquiry, in your statement, can see that there were ongoing notifications and they also had been enhanced –

Ms Mary Cridge: Yes.

Counsel Inquiry: – during that period, but I suppose the question is: did those notifications answer a slightly different question from what was in the PIR in terms of they are more about this is the current state or Covid, or Covid issues in the home, whereas these PIR returns were more focused on regulations and issues? You know, was there a gap created whenever that was stopped on 15 April?

Ms Mary Cridge: I would say not because we weren’t doing routine inspections at that time and we already had banked information from each provider and we were in contact, through the different forms of monitoring that we’ll come on to discuss, so the important thing was that notifications continued. So I don’t think we had a significant gap through that suspension.

Counsel Inquiry: Okay. Thank you.

Now, just then, if we move on to the issues or the mechanisms by which CQC received assurance and/or provided support in the absence of those inspections. We’re going to come on momentarily to discuss the Emergency Support Framework. However, it’s understood that that only came into place at the very start of May 2020. So what was the CQC doing mid-March to the end of April 2020 to ensure that it was regulating, it was monitoring what was going on? And also, as you say, supporting as well?

Ms Mary Cridge: In social care, before we had – what the Emergency Support Framework gave us was literally a framework, a means of capturing information, and, you know, a managed conversation. We can come on to talk about that. It took us that time to set up the mechanisms by which we could undertake that and record, but ahead of that, the instruction we gave to inspectors was to call the registered managers of the services they had on their individual portfolios. So each inspector had their list of organisations that they were responsible, the relationship, that they had the relationship with, and it started with – but it was very informal without that structure, but make contact – make contact with them, start with the ones you’re most worried about, but then that got – the framework gave more formality and some of those staff were of course involved in the design and building of the means to do that.

There were some that returned to the frontline of delivering services and there were some that went on secondment to various places, including the department, and some local authorities. So there was a movement round. But we were getting – the vast majority were still there calling providers, getting the information – and dealing with the massive increase in queries that we were getting from both members of the public and providers.

Counsel Inquiry: Perhaps it’s a good point, then, to launch into the Emergency Support Framework. In your witness statement you describe it a structured phone conversation between the registered manager and the inspector. You stated:

“They were not inspections but supportive conversations with providers about challenges they were experiencing.”

And you also state at paragraph 279:

“The outcome of an ESF call did not lead to a change in the provider’s rating but would inform the ongoing assessment of the provider in relation to the level of risk present.”

Appreciating that these calls performed a supportive role, what, if any, assurance from a regulatory perspective could be gleaned from these structured phone conversations which were primarily focusing on support as opposed to those regulated activities?

Ms Mary Cridge: Yeah. Those conversations did give us a picture on what was happening in that service, some practical matters about access to PPE, aspects of infection control, staffing issues, were there any issues with supply of medication, access to medical care is needed. So it gave a picture of the service.

And the judgement such as it – it wasn’t a rating, but the inspector would form a view as to whether this service was managing or whether it needed support. And that – the conversation was written up and sent to the provider as a record.

So I would – it’s nothing like an inspection report but it was a record of the conversation that went back to the provider, and it informed both the action on that – if some – those cases where we thought they weren’t managing, we didn’t leave it there. We’d be attempting to access support for them. And it would also – once we were in a position to inspect, those obviously that weren’t managing were a priority for us.

Counsel Inquiry: If I may have up on the screen, then, INQ000231915, please, which is correspondence from The Residents & Relatives Association of 22 May. If we could perhaps highlight the third paragraph there, thank you very much:

“CQC produced an Emergency Framework on 1 May but this did not include detailed policy or practice guidance to help providers ensure good communication to reassure families or to help to argue for and organise central supplies to protect staff and older people using services. No reassurance was provided for them or their representatives on how safety and wellbeing would be promoted with the disappearance of visits from family members and others.”

Do you accept The Relatives & Residents Association’s views that these calls provided no reassurance?

Ms Mary Cridge: Well, I can see why they would say that. But from the information that we’ve – I’ve set out in my statement and my experience of this, is it did give us information to point to who was managing and who wasn’t.

We will perhaps come on to discuss guidance, but our view is that, in a pandemic situation, the best people to issue guidance are the government, and our advice would always be to providers to follow that government guidance.

It’s important the guidance is relevant for the sector, and I’m sure we’ll come on to discuss that, but no – I have exhibited our response to this letter as part of my supplementary statement for the detail, for the Inquiry as to the answer to this, but no, I don’t accept that it didn’t give us information and assurance.

Counsel Inquiry: Just to clarify, you don’t accept that it didn’t give us information? That’s perfect.

Just then in terms of, if I may call it rather crudely, regulatory output, at paragraph 293 of your statement you set out that there were 11,935 calls between May and October. Out of those, 301 care home providers needed support and 100 were inspected within six months. On inspection, is that a relatively low output of both regulatory action and also support from these phone calls?

Ms Mary Cridge: I think what it demonstrates is how incredibly well the vast majority of the sector providers performed in unprecedented, you know, situation. It was a – I mean, it was an awful time, and going back to the previous item, it was so hard for people not being able to visit, I mean it was just so difficult, and I don’t decry that at all, but generally, if I think pre-pandemic, most providers are good. When I look at ratings, it was generally around 80% of providers are good, 5% are outstanding, 5, less than 5, inadequate, maybe, and the remainder requiring improvement. So this was a well performing sector, and that went above and beyond with the challenges they faced.

Counsel Inquiry: If I could just return to the calls, please. I’m going to ask for INQ00587673, page 5. This is a witness statement from a manager of a care home in England. It states:

“The first direct communication with the CQC didn’t happen until July 2020 when we had a teams call with our inspector to assess how we were managing. This felt too late.”

I appreciate we can’t go into specifics but are the CQC satisfied that all registered services were contacted within a reasonable period of time for this service to provide a benefit?

Ms Mary Cridge: Well, the context is, as the numbers you gave earlier, we’re talking about the best part of 25,000 registered services, and 637 adult social care inspectors at the time. So this – the important thing about the Emergency Support Framework was it gave inspectors a means by which to prioritise the calls that they made, because obviously it was going to take some time to get through the numbers, and it may well be that a call that happened in July, may have been a service with a good rating and for which the intelligence that we had about it didn’t give particular cause for alarm. But with the numbers that had to be done, we did need a means of prioritising, but it was absolutely our ambition to speak to everybody.

Counsel Inquiry: You’ve put great weight on the supportive element of this, so if I could ask, then, for INQ000614375, page 16 to be put on the screen, which is a witness statement from a Ms Julie Ann Parkinson, a manager of a DCA and member of the National Association of Care and Support Workers. She states:

“Throughout the pandemic I received one phone call from my CQC inspector. This was intended to be a ‘support call’. However, I considered it to be neither helpful nor supportive. I do not feel that they offered me any tangible support or acknowledged things we were doing well.”

Were these calls in fact supportive?

Ms Mary Cridge: They were absolutely intended to be supportive. I can’t speak to the detail of this particular one, but looking at all the words on the screen, I’m very concerned that anyone has felt threatened and bullied. That is absolutely not the vibe that we want to operate in. A supportive approach gets the best results, in my long experience in regulation. So I’m very sorry that this was the experience of this person, but no, we have other feedback that many found them supportive. But I absolutely understand, you know, it’s not – it is a challenge for some, that sense of being regulated and judged.

Counsel Inquiry: We may have already addressed this but on reflection, was this ESF process a suitably robust alternative for routine inspections or was it even intended to be that?

Ms Mary Cridge: It was intended to facilitate a risk-based prioritised contact with our – with the providers registered with us. But as we went on, we developed from the – an emergency situation into a sort of – the second approach, the transition approach, where we were widening the sort of areas that we were looking at and taking account of more intelligence.

So it was a step along the way, and I think the various iterations and developments of this framework became a better – I’m not going to say substitute because I think there is no substitute for on-the-ground inspections, but certainly intelligence and ongoing contact has an important role to play.

Counsel Inquiry: May I just then move on to some interaction, then, between the CQC and the then Minister of State for Care, Ms Whately.

There was a meeting which took place on 11 June 2020.

And I’d be grateful if that could be put on the screen, please. It’s INQ000524915, and the second page of that, please.

I think – it’s the second (sic) bullet point down, the CQC have just informed the minister that 5,000 ESF calls had taken place. The minister is recorded as stating she did not “feel there is visibility of what interactions are being taken by LA [local authorities, I assume], or CQC to ensure that there was safe care going on.”

She says:

“I feel I have no intel, no idea what they have found out. It’s a black [supposedly] hole for me.”

Then two further bullet points down, the minister confirmed that this would be – that she felt there was still significant gaps in what she was seeing and what’s being done. She said that when she was asked how sure she is that people haven’t died in care homes from neglect, she doesn’t have that assurance.

At that time, at 11 June, do you accept there was significant gaps in what the minister was being told?

Ms Mary Cridge: I think we had gaps in expectations. So my expectation and evidence that I have reviewed as preparation for today shows very high levels of contact with the department from early March, if not earlier, and certainly there were many meetings. Twice weekly, I think, the minister – there was one forum the minister chaired herself, and we were sharing information as we went along. I think it was May, from what I’ve seen, the sort of first set of detailed slides as a means of presenting evidence, but the first – I think those slides, which I think we have exhibited, cover the period from March.

I think the minister wanted more and more detail, and understandably in the circumstances, wanted quite a lot of operational detail, and I think we strove to give her as much as we could.

But it isn’t a tap of data in the way that the NHS is, so – in terms of what is available and how to marshal it, and we certainly got into a regular rhythm of more detail on assurance as we went on.

Counsel Inquiry: So there was a subsequent meeting, then, which took place on 1 July between the CQC and the minister.

I’d be grateful if I could have the email correspondence arising out of that on the screen, so INQ000906960. Yes, the penultimate sentence. It states:

“[The minister] was also really clear that whilst she agreed with the CQC decision to stop routine inspections during the pandemic, she did not agree that this was done at the risk of neglect/abuse to residents and [the CQC representative at the meeting] comments today did not assure her on this point.”

And we don’t need to go there, but the read-out of the meeting again records that the minister was really concerned about this.

So 10 or 11 June we have, in effect, gaps in what the minister is being told, and by the time we get to 1 July the minister is expressing significant concern about what she is in fact being told.

Does this demonstrate that whatever processes the CQC put in place weren’t sufficient to guard against or protect the rights of those receiving care?

Ms Mary Cridge: I think on the exhibit you’ve just shown me, over the page, there is a reference to one of the people in the department saying that she doesn’t understand the basis of that concern, because CQC have been providing information that shaped the approach from the start. So I think this is an expectation gap rather than – it would be impossible for any one individual on any day to be assured about the level of safety in 25,000 separate organisations and locations. This is why we have a framework of standards and expectations about how care should be delivered, and the vast majority of providers strive every day to meet and exceed those standards.

It was – it had been pointed out, we knew that it was a balance of risk, when – not being out on routine inspections, and that reduced contact. And provider representatives were saying the same. So I think it – and the minister, with all she had on at the time, you know, you’d have to ask her. But I think we – I go back to I think it was a gap in expectation as to how much operational detail that we might have had at our fingertips to provide, but the overall assurance by the work that we were undertaking, the contact we did have, what we were finding on those early inspections, we shared what we had with the department.

Of course what goes on in the department in terms of how much reaches the minister is another matter. I couldn’t speak to that. But there is certainly a lot of direct contact that – over this time. Some 50 meetings, I think, before July.

Counsel Inquiry: Given the time allowed, I don’t have the opportunity to go through each and every iteration of these processes but over time the Emergency Support Framework has built on to become the transitional monitoring activity, then became direct monitoring activity in October 2020 and June ‘21.

But if I could please have up on the screen paragraph 73 (sic) of your statement.

INQ00058425, page 73, paragraph 215.

You’ve set out here a table of the number of inspections, of care homes in particular.

We can see that in 2019 there were some 8,155. There was a dip then in 2020, which is to be expected in light of all we’ve discussed, down to 4,793.

But by the end of 2023, the number of inspections hadn’t got back to pre-pandemic levels. Could you explain why that’s the case?

Ms Mary Cridge: Post the pandemic and going forward, there was a change of approach. We had a transformation at CQC that was designed to be really an – intelligence-led and target our activity, but I think, as is in the public domain, that we now regard as a failed transformation, it was a change that changed our IT system, that changed our structure, and that changed our operating model and procedures, and a series of reports have documented what happened to CQC in that time. So we didn’t recover our pre-pandemic levels, though we are on course to doing that now. But yeah, that, unfortunately, it is what happened.

Counsel Inquiry: Is that reflective of some of those other issues you were talking about or is that reflective of a move more towards intelligence? Is there an element to which this has all moved towards an intelligence basis as well as perhaps some of those practical?

Ms Mary Cridge: Intelligence has always been important and will be important. We need to marshal the intelligence we have so that we’re as fleet of foot as we can be.

The cause of the failed transformation is – well, it’s multifactorial, it’s very complex. It’s set out in a number of public documents: the Dash report, the Richards report, the Rayner report. It would take too long to give you even a précis, but it was a very complex, very difficult time for CQC, and we’re very much looking forward to a complete recovery.

Counsel Inquiry: Thank you. Before we finish on the issue of inspections, I’d just like to deal with one or two more discrete matters.

At paragraph 247 of your witness statement you’re talking about communications with the Department of Health, and you state that:

“We also noted that we did not expect to be taking significant enforcement action during the pandemic, as in the main, it would not pass the public interest test.”

As you outlined at the start, enforcement is part of the global umbrella of regulation so therefore, in normal times, if I may say, there is a public interest in taking enforcement action. Why in March 2020 was the CQC adopting the position that they were unlikely to take enforcement action going forward?

Ms Mary Cridge: We didn’t say we were unlike – sorry – did we say – (overspeaking) –

Counsel Inquiry: “We did not expect to be taking significant enforcement action”.

Ms Mary Cridge: Yeah. Was –

Counsel Inquiry: Would you like me to get the paragraph on the screen for you?

Ms Mary Cridge: Yes, it hasn’t appeared. I don’t know if it should have done, but it hasn’t.

Counsel Inquiry: I think it’s on me as opposed to you.

Can we please have INQ000584245, please, and that would be on page 81 of the statement. So it’s paragraph 247 in particular, please, and it’s the very last sentence:

“We also noted that we did not expect to be taking significant enforcement action during the pandemic, as in the main, it would not pass the public interest test.”

Ms Mary Cridge: Okay. So we have two forms of enforcement – civil and criminal – with different levels of test. The civil enforcement is really about prevention of harm, whereas criminal is about holding people to account for harm that’s happened. So as a proportion of inspections and enforcements, those early inspections was actually quite high, in terms of significant enforcement action, some of which is ongoing, where we found very serious concerns where inspectors had to literally call ambulances, get people moved out into hospital and so on, where there had been very, very serious levels of neglect. And there were places where we, on a civil basis, would agree that there’d be no further admissions into that service until things had balanced.

But yes, I mean, they were unprecedented times so we were suspecting that enforcement that might have been in normal times the right way forward, that there would be other, better means to achieve the same ends.

Counsel Inquiry: Just so I can be clear, you set out in this correspondence on 11 March 2020, that you did not expect to be taking significant enforcement activity but your evidence is that notwithstanding that, enforcement activity did continue?

Ms Mary Cridge: It did. I think we have submitted the detail of the numbers of civil actions that we took.

Counsel Inquiry: If I may turn just briefly to virtual inspections.

I can see they were piloted for domiciliary care agencies between September and November 2020. During the pandemic was any type of virtual inspection methodology used for residential nursing homes?

Ms Mary Cridge: No, not that we’d call an inspection. For domiciliary care, we don’t go into individual people’s homes; it was all – pre-pandemic, it was about the visit, it would actually be to the office. And offices are easy, where the provider is set up to visit virtually, and where they can share records, to review records urgently, and we have different ways of collecting feedback from people who are using the service, different ways of talking to the staff but that doesn’t translate easily to a setting where people are receiving care in that setting that’s registered with us.

Counsel Inquiry: So you mention there are no inspections but there was some form of virtual contact, obviously the calls we’ve referenced earlier?

Ms Mary Cridge: Yes, we were making – from – I don’t think we ever changed a rating as a result of that virtual contact. I think ratings get changed when on-the-ground inspections happen.

Counsel Inquiry: And in the event of a future pandemic, do you consider that there’s any scope to use such virtual inspections or, given the issues you’ve discussed about the nature of residential nursing homes, is it a non-starter from a regulation point of view?

Ms Mary Cridge: Well, part of the answer would be it depends in terms of what that future pandemic was – actually involved, but as a principle, there will always be a place for on-the-ground inspections to visit the place where care is delivered, to have the chance to talk to people who work there, who live there, to those who are visiting there, and to observe interactions. That will always be important.

Counsel Inquiry: Okay. Just in the process of finishing our discussion on inspections, I’d just like to offer you the opportunity to reflect on a few points.

So you set out in your statement a key concern of the CQC is about avoiding closed cultures, which is defined as a “poor culture that can lead to harm, including human rights breaches, such as abuse”.

Do you accept that taking inspectors off the ground or suspending routine inspections created a heightened risk of such closed cultures developing or perhaps being undetected?

Ms Mary Cridge: Closed environments, which effectively care homes became, do increase the risk of a closed culture emerging but it’s not the only factor. Geography can play a part and certainly, people who are having visits to the home from families and friends, from visiting professionals, all of that helps. But the fundamental feature of a closed culture is set – it’s the weather that’s set by the leadership. In a place where staff are encouraged and supported to raise their concerns, that’s a safe place, and that guards against the emergence of a closed culture, but certainly creating closed environments on the scale, it does increase the risk. It is inevitable, but – so that’s why we took the action we took to increase awareness. We’re alert to that, so in our interactions with providers, you know, we were raising the profile of that. And there was some significant work during 2020 going on on the whole concept of closed cultures.

Counsel Inquiry: I’d just like to give you the opportunity to comment and reflect on two bits of evidence the Inquiry has received, then.

So if I could have INQ000514104 on the screen, please. That’s page 97, paragraph 250. Thank you.

This is a witness statement provided by the John’s Campaign, and it also includes The Relatives & Residents Association, who we discussed earlier:

“We and those we supported felt that the CQC abdicated responsibility during the pandemic and that oversight and regulation were lacking.”

And that they had been “abandoned in the name of infection control”.

I’m not trying to be unfair to you but there’s another quote which is very similar which I might want to get you to reflect on at the same time.

If I could have INQ000475131, please, on the screen. It’s page 32, paragraph (a). This is evidence from Professor Vic Rayner, who states that the decisions made by the CQC in March 2020 effectively resulted:

“… in the withdrawal of CQC oversight from adult social care services for the duration of the pandemic.”

Do you agree that there was an abdication of responsibility or withdrawal of the CQC from the adult social care sector?

Ms Mary Cridge: I do not. In my statement and the evidence I’ve discussed this morning, we – it was routine inspections that were paused. I absolutely accept that would have felt very different for providers and for families, but inspections did resume once we had PPE, that the threshold changed over time.

We did make, I think, in the – in my statement it says some 19,000 calls. There was some – approaching 5,000 inspections. I’ve made in my – in our recommendations we would, in the right situation, for the future, like to see – to be in a position to continue inspecting in a future pandemic, and we would very much like to see visiting facilitated and continue – for the new regulation on visiting to continue to be observed in a future pandemic.

Counsel Inquiry: The recommendation contained within your addendum statement is that it’s for the CQC to recognise the importance of on-site inspections, and ensure the ability to conduct on-site inspections to allow CQC, as the regulator, to be able to continue to assure safety and quality of service provision.

I appreciate, as you say, we don’t know what any future pandemic might look like, but acknowledging the importance of ensuring their inspections in the future, what practically can be done or put in place to ensure that those inspections could continue in the event of a future pandemic?

Ms Mary Cridge: It would be the recognition, not just for CQC, but for social care generally, to be an equal partner in this with health. And for the PPE, the testing, the vaccination priority that health got, for social care to have, both those who work in social care and for CQC. If we had been designated frontline workers, we would have had access to things like the asymptomatic testing far earlier. It took us months, from July to December, to achieve that. And then it was achieved largely through the lobbying of providers, who wanted us back, back on the scene. So if we could be – if we had – if we were equipped to do so, we would want to continue inspecting, and that sort of structure, the kit, could allow visiting to continue as well.

Counsel Inquiry: Do you consider that there’s need for clear adaptable protocols which set out clear criteria, or clear plans, for hybrid, in-person, virtual inspections which are reviewed earlier or reviewed regularly to make sure they don’t go stale and can access all the information? Would something like that be of use if there was very clear processes and protocols already in existence before the next pandemic?

Ms Mary Cridge: Yes, I think we’ve learnt so much; we need to take what we’ve learnt and apply it to planning for the next one. Absolutely.

Counsel Inquiry: At risk of asking an unfair question, has that process started?

Ms Mary Cridge: I think we’ve learnt so much – we’ve learnt so much, and so I think what would stop next time is if we haven’t got PPE, if we haven’t – if we can’t do it safely – it’ll always be the safety. So if we’re in a position to safely continue inspecting in a way that doesn’t increase the risks for those living in homes, in – drawing on domiciliary care, then we’d want to be able to continue.

Lady Hallett: Sorry, forgive my interrupting. Mr Beech’s question was – you’ve learned lessons, I understand that., and I understand that you would have liked access to testing and PPE. But the question included a reference to your plans and protocols, and I think Mr Beech is trying to find out whether there were any plans and protocols now in place as a result of the lessons you say you’ve learned?

Ms Mary Cridge: Yeah, we’ve continued to develop our … gosh, the term – the frame – our framework. We had – which is currently being reviewed. In our new framework, we had, if I take DNACPR as an example, the experiences that we had during the pandemic with that has informed what we call a quality statement. It is – so the way we assess future care planning and do not resuscitate orders has already been informed by what we learnt.

So the frameworks, the way we conduct our business, in terms of the current state of CQC’s pandemic plan, I am not able to answer that. But we could provide that to the Inquiry if helpful.

I know we’re participating with the department and others in planning for future pandemics and currently working on the – should a future pandemic also be respiratory in the way this one was. So we are working with others on that but it has informed some of our regulatory approaches. And if you’d like more detail on that, we can provide it.

Mr Beech: Thank you, my Lady.

Just before we leave the topic of inspections, there’s a statement from Dr Townson that’s been provided who was chief executive of Homecare Association. I don’t know if we have it available on the screen for you, but it appears at INQ000587670, page 110. But she says that the decision to suspend inspections effectively resulted in the withdrawal of meaningful oversight from homecare services for much of the pandemic.

I’m aware that a lot of what we’ve discussed this morning would appear to centre on residential care and nursing homes, but was there a withdrawal of meaningful oversight for homecare or domiciliary providers?

Ms Mary Cridge: I think on reflection, there was more that we could have done for domiciliary care providers. The focus was on, because of the spread, that we got a pandemic that was spread person to person, the focus was on those settings where there were people living together as opposed to people in their – living in their own homes with care workers visiting. But we did act on the suggestion to experiment with remote, and we did pilot remote inspections for dom care, and we’ve – that is now pretty much the standard – well, it is the standard way of working so there is no – we would be able to continue inspecting in similar circumstances.

Counsel Inquiry: Thank you.

We’ve touched on it quite a bit this morning already, on the issue of testing of inspectors. You’ve said how there was correspondence or ongoing engagement between the CQC and the department which ultimately resolved in December 2020. A brief question: were the issues being raised with CQC, were they practical, in terms of there just wasn’t testing capacity to test CQC inspectors, or was it something else?

Ms Mary Cridge: It may well have been in the early days, when the availability of tests was an issue. In the discussions, and I think it’s in the exhibits, that there was – there was a view from Health that because CQC inspectors didn’t deliver hands-on care, that they didn’t – it wouldn’t be necessary. But it wasn’t a distinction that we were comfortable with, because inspectors do go into people’s rooms, they do talk to people, and we are talking about – we understand the way the virus is spread. We could be touching surfaces, et cetera, et cetera. So we weren’t content with that, as a reason, but that – there was a sense that – in some quarters that it wasn’t necessary, but that was a Health view, it certainly wasn’t the Social Care view.

Counsel Inquiry: You do set out a recommendation which you say might help solve this issue which says in the future, to ensure inspectors are treated as key workers at the outset of a future pandemic, with priority access to testing, PPE, vaccinations, and IPC. Just, you use the word “priority” access, what level of access? Is it akin to social care workers in terms of access to those things?

Ms Mary Cridge: Sorry, could you repeat the end part of that question?

Counsel Inquiry: You talk about getting priority access to PPE and testing, and you use the word “priority”. What level of priority do you think should be ascribed to inspectors? The same as care workers?

Ms Mary Cridge: If it came to a choice between care workers and inspectors, I’d choose the care workers because obviously they’re the ones delivering care, but recognising the importance that we place on inspections and our wish in the future to continue, I think we are – that’s what we’re recommending: that CQC inspectors should be treated as frontline key workers and have the same access as health and care workers.

Counsel Inquiry: Moving on to the issue of infection prevention and control, and you’ve set out in your statement how the CQC took on, perhaps, an enhanced role regarding IPC in the relevant period; is that fair?

Ms Mary Cridge: Yes.

Counsel Inquiry: And you conducted a number of IPC-focused inspections, you reported the findings of those to the minister, they appeared to provide some assurance that good processes were being followed. But just almost coming to the end of that process, then, in January 2021 there was a request from DHSC for the CQC to increase the number of IPC inspections. To what extent did this new focus on IPC take resources away from the CQC’s kind of more traditional statutory role regarding regulation?

Ms Mary Cridge: It was more a re-focus than taking away. IPC has always been an element in inspections. It’s important in care homes pre-pandemic, to control the spread of flu and norovirus. It’s very important. So – but there was, going in – that summer of 2020, there was a lot of public concern that – a sense that social care wasn’t managing this very well. I think related to the spread and to the increase in deaths.

And so we wanted – we got a framework together, we went out. It was a minimally – took up about two hours within a care home, so we could get through a lot quite quickly, and it was an observational tool that looked at how IPC was being managed throughout the home.

What it did do was demonstrate that providers were actually managing it very well, which was assurance to both the minister and the public that that was happening.

I mean, it did feel very invasive for people, some of – the PPE in itself, and the – when there were – visiting, as we know, went through a number of iterations, and I think some felt it got in the way. But the important point was that this is something that has always – providers have always had to take account of. It was of a different level during the pandemic and our evidence is that they rose to that challenge well.

Counsel Inquiry: Does the CQC still perform that enhanced IPC role or has that been dispensed with?

Ms Mary Cridge: Well, as I say, it is already – it’s part of the regulatory framework. We are still looking at it, but we’re not undertaking at the moment IPC-specific inspections.

Counsel Inquiry: Thank you. On the issue, then, of – related to IPC, but the concerns about staff working after a positive Covid test, if I may refer you to the evidence of Ms Whately, as contained in her witness statement at INQ000587788, and paragraph 172:

“Around January 2021 I received reports of care home staff continuing to work in care homes after testing positive for COVID-19. These reports came from a staff in a team that I set up (with the support of Michelle Dyson) to increase the operational capacity in the social care team in DHSC.”

Would you that have expected the CQC to have picked up on this issue as opposed to it being flagged by an internal departmental structure?

Ms Mary Cridge: I think we’re referring here to the ASC taskforce, and our chief inspector was invited by David Pearson, who chaired that, to be part of that. So we would have – my understanding of the evidence is that we would have fed into that. And as often with a number of issues, it was reaching the ears of the department, and it was reaching our ears through sometimes the same, sometimes different, sources, but we were certainly picking up on issues of concern about people – staff working when they tested positive, which is completely unacceptable.

Counsel Inquiry: The CQC did put out a statement, then, on 27 January 2021, in fact, saying this should happen under no circumstances.

What, if any, further action did CQC take to investigate or to bottom out the extent or nature of those concerns?

Ms Mary Cridge: I think – I’m not over the detail on this, my apologies. We can provide further information. I think we identified some 50 or so cases that we were aware of, and – but the detailed action with those providers, I couldn’t say. I think we were concerned in the discussions about this to understand why people were motivated to work when they tested positive and – so that the right support could be given to workers to not work, as it were.

Counsel Inquiry: Very briefly, then, on the topic of visiting, the Inquiry has engaged a Professor Banerjee who has produced a report which can be found at INQ000546956. It’s page 68, paragraph 171.

In this paragraph, Professor Banerjee is summarising some evidence contained in a different report by a Dr Gibson, but he notes that:

“Managers in England saw the … CQC as a potential threat during this period [so of the pandemic], more likely to criticise their visiting policy rather than to support them to develop a safe one. Others saw the CQC as inconsistent and reactive, initially giving the clear message that care homes should not allow visitors and then later blaming them for implementing blanket bans.”

Is that a characterisation of the CQC that you recognise or do you wish to reflect on it?

Ms Mary Cridge: I don’t recognise that as the place that I work, but we have our critics, and I do understand that there are people who feel that way. I think in the same report there is also a reference to – that Professor Banerjee’s team did find people who spoke positively of the support that they’d received from CQC.

And for the – for clarification, at no time did we set visiting policies. That was the work of the government, and it was a challenge, because they’d change frequently, they got complex as the concept of tiers came and went, and it was a challenge for all of us to keep up with it.

But we’re not into the blame game, we are into the accountability game, and sometimes the difference between those two is not always understood.

Mr Beech: Thank you. Just in fairness to you, you’re quite right that Professor Banerjee’s report does note that these experiences weren’t universal.

My Lady, I don’t know if now is a convenient time for a break?

Lady Hallett: It is, certainly. I shall return – I hope you were warned we take regular breaks, but I hope we shall finish you before lunch. I shall return at midday.

(11.45 am)

(A short break)

(12.02 pm)

Lady Hallett: Mr Beech.

Mr Beech: Thank you, my Lady.

Well before the break, we were discussing the various factors which CQC took into account when deciding to suspended routine inspections, and you outlined three operational principles. Ultimately, they all boil down to reducing footfall and protecting residents. To what extent, if any, did the desire or the need to redeploy inspectors to help on the frontline inform CQC’s reasoning?

Ms Mary Cridge: That’s a good question. I’m not sure I – from the records I’ve seen, that wasn’t a factor in – so is the – was – did it boil down to: we hadn’t got enough people because we’d redeployed them elsewhere so we had to do it this way? I’m confident the answer is “no”. We did support redeployment where people had got particular skills and were able to return, but no, we had – the vast majority of our inspection workforce was available to us, not all were able to leave, of course. Some were shielding themselves; some were in households where people were shielding, or in the same household as a frontline worker. So there were other – those sorts of considerations, but it wasn’t a fact that because we’d redeployed people we hadn’t got enough people to inspect.

Counsel Inquiry: Thank you. If we can return to the issue of DNACPR notices.

The Inquiry has heard plenty of evidence about reports that the CQC published in March 2021, the final report, on this issue, and the CQC were directed by the Minister for Mental Health, I believe, to undertake that review.

Ms Mary Cridge: Mm.

Counsel Inquiry: In your statement you set out that the CQC were aware of concerns about DNACPRs as early as March 2020. Why did the CQC not proactively produce a report of that nature or go away and investigate what was going on at that stage, so at the earlier stage of March 2020?

Ms Mary Cridge: Okay. A particular report of that nature would require an additional commission from a minister, a section 48 request would give us the powers to write a report. Our powers as they exist, go to the assessment, the inspection, preparation of a report on an individual service. To look more widely, we just, we need those powers. But DNACPR had been a concern to us, in terms of blanket DNACPRs, had been flagged in the learning disability world the previous year where we became aware, through the LeDeR death reviews, that it was more likely that blanket reviews would be imposed.

So that March action to make a very clear statement was a reaction, and – was a reaction to the concerns that were being brought, and may well have had an impact in reducing that. But we were also concerned about an increase in the number of individual DNACPRs. They’re two separate issues: blanket versus an increase in the individual, and in discussions with the Department, that was how we came to be commissioned to write that report. I don’t have the date to hand, but I’m thinking late summer, and the interim report, I think, was very early December, which set out very clearly what the rules were –

Counsel Inquiry: Thank you.

Ms Mary Cridge: – and flagged best practice.

Counsel Inquiry: Thank you. Just as you mentioned there, section 48, you would have needed section 48 direction. At no stage did the CQC in March 2020 flag to the Department, “We think this is an issue which might need looked into; could you direct us to do it, to cover us from the legal point of view”?

Ms Mary Cridge: There were two separate issues. So the first issue was blanket bans, which was a no-brainer: unacceptable. We wrote to every care provider about it, as well as that joint statement which was issued, and the NHS wrote to every GP, so – and they are the key players to have been – to heighten awareness and make people aware.

The increase in individual DNA orders was an issue that emerged as the year went on. The original issue was blanket, and then it became a slightly different issue. And the nature of these things is that we would have been talking to the Department, asking them to commission us, which is what happened.

Counsel Inquiry: Thank you.

The final report, then, makes a recommendation, it’s recommendation 11, that:

“The CQC must continue to seek assurance that people are at the centre of personalised, high-quality and safe experiences when it comes to DNACPR decisions, in a way that protects their human rights. To do this, we will ensure a continued focus on DNACPR decisions through our monitoring, assessment and inspection of all health and adult social care providers.”

And CQC is identified as the lead for that action.

Has that recommendation been actioned? Is there now that focus?

Ms Mary Cridge: Yes, in our new framework the “look at forward planning” takes account of this. I mean, it’s always been a factor in assessment but it has more heightened awareness, and our internal action was to invest in awareness and training for our own staff, because it’s a difficult issue, it’s frequently misunderstood, and we wanted to make sure that our own staff were confident to have the conversations needed with providers, and to be able to point providers in the right direction, was there any, you – know, in the event of any misunderstanding about it?

Counsel Inquiry: And just finally, on a general point, prior to the pandemic, did the CQC have any role with regards to registering or making a note of which care homes could or could not bring in place isolation practices?

Ms Mary Cridge: No, we didn’t. We did later in the pandemic get involved in a scheme of what was known as designated settings, which were care homes that did have the facilities and staff to be able to safely isolate Covid-positive patients, and those – they were nominated by the local authority and then we would inspect them and agree or not that they could become designated settings.

Counsel Inquiry: Thank you.

Throughout this morning, we’ve discussed a number of recommendations regarding PPE and testing going forward. I just wish to explore a couple more with you before I’m finished with you this morning.

Professor Rayner, whose statement we’ve already looked at, is at INQ000475131.

And can I have page 33, paragraph 6.1(f) on the screen, please.

In her statement, and just while that’s loading, she sets out that:

“Given its practical knowledge, position and powers, consideration should be given as to whether CQC should have taken a leading role in the preparation of guidance to the social care sector, which arguably would have ensured more realistic and practical guidance …”

I suppose the question is: is the CQC responsible for producing guidance to adult social care? And going forward, do you consider that it should be responsible for producing guidance?

Ms Mary Cridge: Okay. So our current powers on guidance are confined to guidance about compliance and how to meet the fundamental standards. It doesn’t go wider than that.

We think government are the best placed to provide guidance in a pandemic. What we need is guidance that is relevant to social care, and is not health sector guidance adjusted for social care.

It’s a very diverse sector, as I’ve already referred to, with lots of different sized providers. The best way to really good guidance is to have that genuinely co-produced with those who provide services, those who receive services, and the various experts in – you know, in terms of infection prevention and control and so on. And I think CQC has a role in that, perhaps even as a lead facilitator of it, but I think CQC providing – would effectively, otherwise, be providing guidance about guidance, and I don’t think that’s a healthy state. I think it’s the road to confusion for providers. I think one set of guidance, co-produced, that – relevant and impactful for social care, is what we need.

Counsel Inquiry: Thank you. And two hopefully very brief ones. Do you consider that the CQC should be responsible for assessing pandemic preparedness plans, whether they be on the part of local authorities or perhaps even plans held by registered services?

Ms Mary Cridge: At the moment we don’t have the powers to do that, either for a provider or a local authority. Social care providers are not required to have a pandemic plan, they are required – and we would look at it under the regulation where we review governance in an organisation – they are reviewed – required to have contingency plans, and – but in the normal run of things they might be for power outages, a flood, inability to get hold of medicines, that sort of thing, whereas in a pandemic I think it would be wrong to consider providers as islands who should each in their own way produce their own pandemic guidance. It’s the system. So it’s – you couldn’t have a care home plan that didn’t take account of what the GP – the GPs who served that care home, what their plans are.

So I think a system-level plan, with the local authority as a key player in that, is the way to go.

At the time of the pandemic we had no responsibilities regarding local authorities. We do now. We assess local authorities for their delivery under Part 1 of the Care Act. So, again, currently we don’t have the powers, but you can see a way that it could be adjusted, that in either our system assessment or local authority assessment, that that would be something that we could look at.

Counsel Inquiry: Final one, then, is that there’s currently no register for care workers in England. A two-part question. Firstly, do you think it would be of benefit to have such a register of care workers? And secondly, who should have responsibility for maintaining that register?

Ms Mary Cridge: We would like to see a register of care workers because it would acknowledge them as a profession. And along with a register would come a clear educational offer, and it would have an impact in all sorts of ways that professional registration does. It would raise the status and recognise the incredible skills and role of care workers.

So a register, I think, would be a very positive step going forward. Whether it should be CQC that hold that register, that would be quite an extension of our current powers, and again, that would be something I’d be keen that was co-produced in discussion with the sector. There is no royal college for care at the moment. There might be organisations that perform that role in another guise, but I think to truly recognise and support care as a profession, a register would be a strong step to that, and we could collectively consider who best would hold it.

Mr Beech: Thank you very much, Ms Cridge. I’ve no further questions.

Thank you, my Lady.

Lady Hallett: Thank you very much, Mr Beech.

Ms Morris. Ms Morris is just there.

Questions From Ms Morris KC

Ms Morris: Thank you.

Good afternoon, Ms Cridge.

Ms Mary Cridge: Good afternoon.

Ms Morris KC: I ask questions on behalf of the Covid Bereaved Families for Justice, and I’ve got some three topics I’d like to ask you some short questions about, please.

The first topic is around data on deaths within care settings and you say in your first witness statement that the CQC receives death notifications as part of its regulatory functions in relation to registered providers, but that you don’t receive, for example, records of where people die. But you explain in your statement that the purpose of those notifications isn’t to monitor mortality or to create mortality statistics. So my question is this: isn’t understanding where, when and, sometimes, why someone’s died not essential to the CQC’s oversight function?

Ms Mary Cridge: Yes, death data is essential for us, which is why it is a notifiable event that providers are required to tell us about. We extended that during Covid to ask providers to notify us if they suspected or confirmed that the cause of death was Covid. So we do, we ask a range of information about the characteristics of that person, but it’s not all mandatory – that element is not all mandatory or, indeed, systematic.

So we know the locations that have reported it. What we didn’t do until 2021 was publish that at location level.

Ms Morris KC: Okay. But you do now; is that the position?

Ms Mary Cridge: I don’t think we have published death data in that way, but I can check and come back.

Ms Morris KC: Thank you.

Specifically in relation to the collection of data around deaths of people with learning disabilities, you say in your statement that it would be disproportionate and inappropriate to routinely rely on the use of your statutory powers to require documents and information from registered providers to obtain that data. But again, do you accept that that data is extremely important to understanding the impact of Covid-19 on people with a learning disability?

Ms Mary Cridge: We did receive that data, and we did identify an increase in – an increase in notifications, and we did report on that in one of our data insight reports, because it became apparent that people with a learning disability, that deaths through Covid had increased, and I can speak to that if that would be helpful.

Ms Morris KC: I’m trying to understand with these questions whether the pandemic exposed a sort of significant and serious gap in the data that was available to the CQC and, if you like, demonstrated the need for a single and reliable source for that data around deaths.

Ms Mary Cridge: So the single reliable source ultimately was the Office for National Statistics. And I think our concern as the pandemic went on was to provide the government with the information – share the information we had, and the ONS was publishing deaths in care homes by – summarised by local authority area on a weekly basis alongside confirmed – registered deaths, and as time went on, it became apparent that our death notification data was indeed a very reliable lead indicator for registered deaths, but during 2020 the publication of that, we didn’t feel it – we could do that safely, because there were so many variables. But definitely our head of intelligence worked very closely with the Department, the ONS and others, to sort of regularise and clean the data, the protocols around statistics, so that they could be properly met.

Ms Morris KC: Thank you. My second topic is around care home visiting arrangements and Mr Beech has touched on the general issue about guidance and I think you’ve said in some of your answers already that there was an issue around – a challenge around consistency. And it’s a little more detail around that I want to ask you about, please.

You say in your second witness statement and I’m just going to quote:

“The rights and wishes of those using adult social care services must remain a focus at all times. During the pandemic, the rules about visiting in care settings caused suffering and harm, both to people using care services and their loved ones.”

You’d recognise that?

Ms Mary Cridge: Absolutely.

Ms Morris KC: Thank you. Just looking in a little more detail around the relevant rules and guidance during the period, you notice that – in your statement that on 15 March the CQC circulated an intended letter to providers which emphasised the then-current PHE guidance on visiting in care homes and the CQC position was that care homes should not close their doors to visitors and indicated that the CQC did not expect to see care homes closing their doors to visitors. I think you’d accept, though, by March 2020 the media was widely covering the fact that significant numbers of care homes were already implementing what we can term blanket bans on visitors. Was that communication, or intended communication from the CQC, seeking to address the concern about the imposition on blanket bans?

Ms Mary Cridge: Yes, so our position was, is, and always will be, that person-centred care and decisions is the most important thing. The visiting – the instruction to stop visiting, when it came, was a surprise to us, we weren’t informed of it, we discovered it on one of our regular checks of government guidance. We pointed out at various stages where the rules for care homes were different from the rules for hospitals, which were still allowing end-of-life related visits, and we flagged when we noticed the admissions guidance, for instance, was in conflict with the visiting guidance.

And even with all the guidance issues going around, providers were making their own decisions, sometimes, sort of, related to the prevalence of the virus in their area. I think all motivated from a point of safety, but it became difficult to keep up, and when tiers became a thing, and there were different arrangements in different parts of the country, I think the complexity of the whole thing got very difficult.

Ms Morris KC: I think you agree with my next question, you already answered it, you say you were surprised that the government advice came out, and it was such an important change was made about blanket bans without consulting the CQC, you were surprised by it. Had you been consulted, would you have advised that it would be appropriate to maintain visiting with appropriate IPC measures put in place, for example, particularly in order to maintain the human rights of both the people with care needs and their visitors?

Ms Mary Cridge: Our fundamental position was that the decisions should be person centred, and that the right decision for individuals. But I think in the early days of the pandemic, it was – providers were trying to take account of an emerging situation that was new to all of us, and trying to do the right thing. And it did lead to some early bans before it was official.

Ms Morris KC: Do you think that confusion and the absence of advice and clarification from the CQC or others increased the likelihood of those providers going for the blanket ban option rather than that person-centred or more nuanced approach?

Ms Mary Cridge: Sorry, could you repeat the first element?

Ms Morris KC: Do you think the confusion – I’ll use the word complexity – in the area, increased the likelihood of providers imposing a blanket ban rather than using an individual-based approach?

Ms Mary Cridge: I think so. I think they were – you know, there was different advice from Public Health England at different times and in different places. I think, to be put in the – and these are – some of these providers – they’re not, like in the NHS, with the great structure around them; these are individual places trying to do their best in a frightening, confusing, changing situation. And our sense, in looking at this, is that the vast majority of providers did their best. And when there were some let up, providers went to extraordinary lengths to keep contact, whether it was electronically or garden visits or all sorts of things, but it was a miserable experience for people and their loved ones.

Ms Morris KC: Thank you.

My third and final topic is the hospital discharge policy in March 2020, and I’ll try to take this as quickly as I can.

You deal with it in your first statement. You highlight on 16 March 2020 that the CQC was asked by the Department of Health and Social Care by email for a statement indicating “complete support for the principles in [their] new hospital discharge guidance”.

Did CQC colleagues have concerns about the appropriateness of the CQC indicating complete support for the policy?

Ms Mary Cridge: There was a lot of action that went on between that first contact. So our – we weren’t involved in the development of the discharge guidance, and we didn’t issue the statement in quite the way it was originally requested. Our involvement was limited to the trusted assessor guidance, and the original request was effectively to suspended the trusted assessor guidance. And trusted assessors, they – this was a thing pre-pandemic, and it’s a very good way of speeding up hospital discharge and helping people to get to the right place for them when they leave hospital.

But so what – the end result, which is the important thing, is that annex C of this policy was the Trusted Assessor guidance, and it basically said to the NHS to employ more trusted assessors, for those hospitals that weren’t using them to use them, to make the point that CQC will always put safety first.

Ms Morris KC: Understood.

Ms Mary Cridge: And also, to – that the trusted assessors must take account of the legal responsibilities of social care providers.

Ms Morris KC: Yes.

Ms Mary Cridge: So that providers must ask themselves, can they care for this person safely? If they can, the second question is, if, by taking this person, I am putting at risk the people who already live in this service, then the answer is no.

So there was – providers felt under a lot of pressure, and, goodness me, we all understood the need to free up capacity in the NHS –

Ms Morris KC: Quite.

Ms Mary Cridge: – but it – so that was the limit, and we put our logo on that annex because that was the element we’d be involved with.

Ms Morris KC: I understand. And you said in your statement that the CQC did express concerns that the guidance did leave providers with little or no power to challenge individual decisions if they felt an admission of an individual from hospital wouldn’t support their best interests, for example if the care home didn’t have sufficient PPE –

Ms Mary Cridge: Right.

Ms Morris KC: – or if they weren’t able to safely accommodate individuals who needed to isolate.

Given the stated object was to free up beds in hospitals and to move patients into care homes, was there a concern that the guidance would put those providers under that pressure to accept patients even when they didn’t have suitable isolation facilities and PPE?

Ms Mary Cridge: Well, the route in that 1 March guidance was through the trusted assessor. So this is somebody making a decision. And to do that properly, the trusted assessor has to take account of the ability of that particular care provider they’re looking at to accommodate that person safely and not to endanger others in that service, as I’ve just explained.

So we don’t want to go from one bad situation to another. But providers definitely, small organisations, many of them, against, you know, the NHS in this emergency situation, of course they felt the pressure.

The second piece of guidance relevant to this is the admissions guidance that came out on 2 April –

Ms Morris KC: I’m not going to ask you questions about that; I’m going to focus very much on the discharge policy guidance.

Ms Mary Cridge: Okay.

Ms Morris KC: I’m also conscious of time.

Can I just ask you to acknowledge the fact that there was going to be significant pressure put by this guidance, and my underlying question is going to be, given you did agree to put the CQC’s logo on that guidance, did that not give the impression that CQC endorsed it, and therefore increased that pressure on providers?

Ms Mary Cridge: This may sound like dancing on the head of a pin, but our logo was not on the front of that guidance; it was the DHSC and NHS on the front page. We were just on the item, the – annex C, trusted assessor guidance that we’d been involved in. I know you don’t want to get to the assessor guidance – to the admissions guidance but, actually, it’s part of the same person journey. I leave here, I go in here, and the admissions guidance was like the second half of the story because it reinforced the ability of the social care provider to say no.

Ms Morris KC: I understand. Maybe just touching on that in my final set of questions, please. You say in your first witness statement that the CQC was aware of a number of concerns made in relation to decisions about individuals admitted from hospitals, and one example you give there is a 23 March query from a care home manager where a service user had tested positive for Covid, was asymptomatic in the hospital, and assessed as medically fit for discharge. Do you accept that these examples demonstrate the extremely difficult position that providers felt themselves in, where they felt under pressure to accept patients who were either suspected Covid or unknown Covid status, despite not having sufficient PPE/isolation facilities to prevent the transmission of the virus to patients and staff?

Ms Mary Cridge: I do accept they were under extreme pressure and it was a live discussion the social care trade associations, and CQC, amongst others, were having with the department.

Ms Morris: Thank you.

Thank you, my Lady, those are my questions.

Lady Hallett: Thank you, Ms Morris.

Ms Jones, who is over that way.

The Witness: Ah, thank you.

Questions From Ms Jessica Jones

Ms Jones: Ms Cridge, I act for John’s Campaign, Care Rights UK and The Patients Association, and I’m going to take you back, if I may, to the issue of visiting restrictions. We’ve heard you say this morning that the intelligence that comes to the CQC from service users and their family members is, in your words, invaluable to understanding what is going on in a care home, but of course a key part of the experience in adult social care during the pandemic was that family members were, largely, and for a very long time, excluded from those settings.

So arising from this and given the harm that is caused by blanket bans on visits, including to oversight and monitoring of care and the creation of closed cultures, do you consider that it would have been helpful for the CQC to collect data on whether care settings were complying with visiting guidance or imposing blanket bans and for that to have been a metric that you took into account in assessing risk and deciding whether settings required inspection?

Ms Mary Cridge: So I want to make sure I’ve understood the question correctly. So this is about: should CQC have collected data on visiting bans?

Ms Jessica Jones: Yes, well, in your statement to the Inquiry you do explain that the DHSC asked for that at one point –

Ms Mary Cridge: Yes.

Ms Jessica Jones: – and that wasn’t something that the CQC was collecting. Would that have been something helpful to keeping on top of risks that were posed by changes introduced during the pandemic?

Ms Mary Cridge: Well, it may have been, but the practicality of that, 25,000 registered providers – so we discount the dom care, because it wouldn’t apply, so we’re still talking thousands of providers and locations, and in the normal run of events with an infection – so, say, for example, you’ve got norovirus, you suspected norovirus, that may – you may want to take account of that, and then later that day, that may have been resolved and it’s fine.

The day-to-day, in the more natural run of things, would have been a huge data collection exercise. There isn’t a single IT system across social care and not all social care providers are digitised, so the actual act of collecting that I think would have been a real challenge.

We since, of course, have Reg 9, that has rather established the ground that, going forward, there is that right. But when that regulation was brought in, it was – it wasn’t reportable. Having blanket bans wasn’t reportable. So we don’t know that. It is a regulation that DHSC are currently reviewing, so, you know, that may change in the future.

But just the logistics of doing that for that number of settings, I think would have been challenging.

Ms Jones: My Lady, if I may ask a follow-on from that?

Lady Hallett: Well, I’m afraid we’re very short of time today, Ms Jones, so it must come out of your time, and you’ve had a chunk of it now already.

Ms Jones: I have, but I will be quick, because you refer then to the difficulty, the logistical difficulty of collecting data, and we do keep hearing in the evidence to the Inquiry in this module about the data and information gap in adult social care.

Is that something the CQC is trying to take steps to address?

Ms Mary Cridge: There is – well, yes. I think there is – we’d – the pandemic did expose the difference between the NHS and social care on data collection. No two ways about it. But it’s the size and diversity of the sector.

These are individual businesses, some for profit, some not, and with various – even in the NHS systems don’t talk to each other, so, I mean, there are some practical logistics here, and we need to get the right data at the right time and focus on what makes a difference to people’s safety and experience as opposed to everything that, with hindsight, we might have liked to have.

But I think now the fact that there is a regulation for visiting to continue, and that is one of the recommendations I’ve made in my supplementary statement, we’d want to see everything done to keep that going in the future.

Ms Jessica Jones: Thank you.

I’m going to move on to a slightly different topic then, about the CQC’s response to complaints about care providers, and we understand that the CQC would take account of complaints to determine whether to inspect care homes, but didn’t actually play any role in resolving complaints and instead would refer family members or service users back to the care home to have the substance of a complaint resolved.

But many people had fears of adverse consequences. We know, for example, that eviction notices were sometimes issued when complaints were raised, or members of staff were dismissed. In your view, would there have been a benefit in the establishment or existence at that time of an independent complaints mechanism? And why did such a mechanism not exist and, as I understand it, still does not exist?

Ms Mary Cridge: That’s something to ask the legislators. So the legal position is we have no power to investigate complaints, but where we’re aware of them, we do take account of them as intelligence about a place. And we look – we review a provider, so it’s part of the regulatory function to look at how they are dealing with complaints, because a good, well-run place will welcome feedback and complaints and deal with them well. So, yes, there isn’t – it wasn’t our – we don’t have the legal power to do it. There is the local government ombudsman who does have a role, so – and there is an alternative – forgive me, I – so if it’s a local authority commission, the ombudsman route exists, and I think there is another for private funded care. I’d have to double-check that. I don’t have that to hand.

Ms Jones: Thank you, my Lady.

Thank you.

Lady Hallett: Thank you, Ms Jones.

And Ms Beattie. Ms Beattie is over there.

Questions From Ms Beattie

Ms Beattie: Thank you, Ms Cridge. I ask questions on behalf of Disabled People’s Organisations.

Back to DNACPR. In the final report on DNACPR, in March 2021, the CQC concluded that there had not been a national blanket approach to DNACPR, but that there was undoubtedly confusion at the outset of the pandemic and a sense that some providers felt under pressure to ensure DNACPR decisions were in place, and Ms Cridge, you say in your statement that you were able to provide reassurance around concerns, around – about blanket usage which had in part led to the review.

Do you agree that CQC’s conclusion about the absence of a national blanket approach did not exclude that blanket approaches were taken locally, and/or for particular groups of people?

Ms Mary Cridge: Yes, that is the evidence, that we couldn’t find a source – it appeared in the early days that there might – may well have been some national instruction because we were hearing the reports of so many from different sources, but if there was a central source we never found it and the evidence is it wasn’t given, but they did break out blanket – did break out all over the place, and providers certainly felt the pressure.

Ms Beattie: Right. So just to be clear about that, so you were trying to find out whether there was, and to ask the specific question: was there a national, blanket instruction to which you thought the answer was no –

Ms Mary Cridge: Yeah.

Ms Beattie: – is that right? But you thought there were, in fact, what I would call local blanket approaches, whether that be at the level of residential or care home, at the level of GP; is that right?

Ms Mary Cridge: Yes, that’s right.

Ms Beattie: Or indeed for particular groups of people such as people with learning disabilities?

Ms Mary Cridge: Yes, that’s right. We were concerned about the application to groups of people pre-pandemic. There was evidence in the LeDeR work from 2019 that people with a learning disability were particularly susceptible, and DNACPRs, and even advanced care planning isn’t for everybody. Advanced care planning should only be for people at risk of significant physical deterioration in the sort of very near future and DNACPR is part of end-of-life planning in very particular circumstances.

So groups of young people in a service for people living with a learning disability or with a physical disability, it would be astonishing. So only in very particular circumstances. So we were concerned, we were very happy to be part of the statement on it and to do the further work to review it.

Ms Beattie: You say that you heard evidence from people, their families and carers, that there had been blanket DNACPR decisions in place. Was it the case that the CQC not only heard that from people and their families but actually saw the documentary evidence in the form of letters about DNACPR?

Ms Mary Cridge: I’ve – I certainly heard of a lot, but in terms of documentary evidence, I’d have to check and come back to you. I haven’t got that level of detail, I’m sorry.

Ms Beattie: Well, I think the review, the final review of the report itself gives one example of letters from a GP to care homes; is that correct?

Ms Mary Cridge: Ah, yes, that would be right, yes.

Ms Beattie: And did the CQC see other examples of that?

Ms Mary Cridge: I couldn’t say whether we did or not. I’d have to check and come back. I certainly recall anecdotes, inspectors talking about what they had heard and seen, but I don’t have the confirmed detail for you.

Ms Beattie: So, going back to the CQC’s conclusion that there was undoubtedly confusion and a sense that some providers felt under pressure, does that, to some extent, downplay the reality that DNACPR decisions were proposed and were in fact put in place without consultation, or discussion, including for people with learning disabilities?

Ms Mary Cridge: So there is no doubt that blanket bans are never acceptable, and then the issue shifted as time went on, so we – so blanket bans hopefully out of the way, every care provider written to, every GP written to, really clear position.

Then our concern was the increase in the number of individual orders, which led to us being commissioned to do the work and led to the report. So these are not – either for groups of people or individuals, not to be taken lightly. They should be – although ultimately a sort of clinical decision, should be done ideally with the involvement of the person, with their families, and with the involvement of care homes. It’s not a care home decision but, as a provider of care, would expect to be in that general discussion about planning and what an individual wants and how to best respect their wishes.

Ms Beattie: Ms Cridge, I think you’ve made that distinction in your evidence already between the blanket and the individual. If I can just probe that a little bit, I mean is it really the case that the problem with the blanket instruction is precisely that it might lead to those individual instances, and so therefore that was a concern from the very outset?

Ms Mary Cridge: It’s a breach of human rights. As, you know, it – it’s an offence against the Equality Act. For groups of people to be subject to a do not resuscitate order is unacceptable. Absolutely.

Ms Beattie: What were the data sources that the CQC was able to use to determine the existence or the extent of any blanket approach to DNACPR at that local or group level?

Ms Mary Cridge: I think the intelligence came in from a variety of sources. Certainly the Department had had it. I don’t know if it’s detailed in our report. I’m afraid I couldn’t speak to exactly what the different sources were. I imagine it would be a combination of what we heard from care providers themselves, from “Give feedback on care”, from the many – as I’ve said earlier, 2.5 million contacts over the course of the pandemic. So from people working in services, from families, from people themselves. So there was probably – there would have been more than one source.

If you’d like more information on that, we can get that for you.

Ms Beattie: I mean, I think that’s in the form of sort of intelligence and survey sources, if I can put it that way, but in terms of actually the CQC reaching its conclusion about whether there had been inappropriate DNACPRs on a widespread basis in individual cases, were there limitations on the data sources that the CQC was able to use?

Ms Mary Cridge: I think the data sources we did use are described in the final report that we did. I don’t know what to add to that. I’m sorry.

Ms Beattie: So if that indicates that there was an in-depth review of seven people’s care records from a sample of 166 records, would that be the kind of concrete material that the CQC was able to look at?

Ms Mary Cridge: I think that was one element. I think there was – I think there were a form of inspection from – I’m sorry, this is feeling like a memory test.

There were interviews, there was documentation looked at. We retrospectively retraced a number of orders. I think that’s in the report.

Ms Beattie: I mean, did the CQC reach any view as to whether recordkeeping could be improved in that respect, either – through the use of electronic records rather than paper records so that such an analysis would be easier? Or was that not part of the review?

Ms Mary Cridge: I’m afraid I’m not over that level of detail. I think it probably is in the report.

As a general rule, it would be – the quality of recordkeeping is absolutely critical to all decisions about care, to understand who was involved, the circumstances in which key decisions like that are taken. And a really good decision won’t stand as a good decision unless it’s clearly documented. So it probably was, but I’m afraid I – without it in front of me, I couldn’t comment further.

Ms Beattie: And, I mean, does the CQC know today if there are still inappropriate discriminatory or unlawful DNACPR notices in place on the records of people with learning disabilities that have been there since the pandemic?

Lady Hallett: We’re moving beyond the pandemic , Ms Beattie; you’re also running out of time so if you want to ask any of the other questions I’ve allowed, I suggest you move on.

Ms Beattie: I’m grateful, my Lady.

One other topic, Ms Cridge, which is about inspections, and specifically what inspections learnt about staff movement. In November 2021, the adult social care in England winter plan, and I appreciate that’s not a CQC document, but the government, the DHSC’s winter plan said that where the CQC had received credible Covid-19-related concerns such as in regard to staff movement or core IPC practice, its default position was to trigger an inspection?

Ms Mary Cridge: That’s right.

Ms Beattie: And so my question is: what was the nature of the concerns in regard to staff movement that triggered inspections by the CQC?

Ms Mary Cridge: Well, staff – I think there is an element in my statement that talks about the movement of staff between services. There would be questions about IPC and the protocol of that. Generally at the time of lockdown, not moving between services would reduce risk, but the nature of employment in the sector is that there are people who, pre-pandemic, worked in more than one service and there’s also the situation where providers with more than one care home might want to move staff from one place to another.

I think it’s dealt with in the statement. The mantra would always be doing it safely, and it may well be there was a time when we said not, but I’d have to check that.

Lady Hallett: Thank you very much, Ms Beattie. I’m afraid that’s all we have time for.

I think that completes the questions for you now. Thank you very much for your help and, I suspect, the colleagues at the Care Quality Commission who helped provide the nearly 300-page statement, so please thank them for their help too, and thank you for coming today.

The Witness: Thank you.

Lady Hallett: Mr Beech.

Mr Beech: Yes, thank you, my Lady.

While we’re approaching lunch, but I think there’s some time we could usefully use to start the RQIA witness, Ms Donaghy.

Lady Hallett: Thank you. Pick your own moment when you wish to break, Mr Beech.

Mr Beech: I’m very much obliged.

Yes, may we please call Ms Donaghy.

Ms Briege Donaghy

MS BRIEGE DONAGHY (sworn).

Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you waiting too long.

The Witness: Not at all. Thank you, my Lady.

Mr Beech: Good afternoon, Ms Donaghy. I’m going to ask you some questions primarily arising out of your witness statement, which is dated 18 March 2025.

At the outset, then, you have been the chief executive of the Regulation and Quality Improvement Authority, or RQIA, since July 2021; is that correct?

Ms Briege Donaghy: That’s correct.

Counsel Inquiry: And prior to that, you were in a senior role within Northern Health and Social Care Trust in Northern Ireland?

Ms Briege Donaghy: Correct.

Counsel Inquiry: I flag that just by way of context, so whilst you weren’t in position when perhaps some of the key decisions were taken, you have taken steps ahead of today to be well informed; isn’t that right?

Ms Briege Donaghy: Yes, my Lady, I have. I have spoken extensively to staff of the RQIA who were present at the time of the peak of the pandemic. I have listened to testaments of others, including bereaved families and others. I’ve read extensively. I’ve engaged with the authority members, and I believe I’m prepared to answer from an organisational perspective.

Counsel Inquiry: Thank you.

In terms of the RQIA, then, it is Northern Ireland’s independent health and social care regulator. It’s obviously independent of the Department of Health, but legislation does give the Department the ability to direct the RQIA to take certain actions; is that right?

Ms Briege Donaghy: That’s correct, yes.

Counsel Inquiry: Just if you could enlighten me, whenever the department makes a direction, is there any discretion on the part of the RQIA or are they bound to go along with what the department directs?

Ms Briege Donaghy: No, we’re compelled to go along with it, although of course, my Lady, it would have to be within the scope of our remit and role. So, yes – and I should say it would not be a regular occurrence, but certainly under the founding legislation of RQIA, the reference article 6 would enable the Department of Health to direct RQIA to carry out functions or exercise of its duties, yes.

Counsel Inquiry: We’re primarily interested today, then, in the RQIA’s regulatory function. And at risk of oversimplifying it, is it correct that it can be broken down into registration, inspection, and then enforcement, if that’s not too crude a division?

Ms Briege Donaghy: Well, as you say, it’s a danger of oversimplifying. So I just – yes, broadly. However, I would just remark that the Regulation and Quality Improvement Authority covers all those aspects. Part of our role is quality improvement, and much of the time, of course, we exercise that role through a regulatory function, but we also have a supporting function. It’s – these are not in conflict with each other. Indeed, originally, when RQIA was established, I recall colleagues telling me it was referred to as the quality, improvement and regulation.

So there is an aspect of our role that goes beyond registration, inspection and enforcement. We also provide support, advice, guidance, and we have a very specific and different role in the health and social care system in Northern Ireland under the trusts, but I know today we’re concentrating on registered services.

Counsel Inquiry: And just very briefly, perhaps, why is it important that the RQIA performs that regulatory function?

Ms Briege Donaghy: Well, clearly regulation, I think, is an underpinning principle of all good service delivery, particularly independent regulation.

In Northern Ireland, the registered sector, I mean, we are a small organisation, and under our legislation there are a range of services required to register with us, largely from independent sector provision, but not exclusively so.

Without that independent oversight, both in terms of registration, I would argue, because you’re maintaining from the outset of an organisation being established, that it is fit for purpose, that it has effective governance and oversight arrangements. But independent sector organisations, including care homes, for example, would not have the substantial governance arrangements that NHS, as might be thought of here, and HSE, we refer to it in Northern Ireland, does not have those governance arrangements.

So we provide an independent oversight, quite a detailed level of scrutiny, to be able to provide assurance to the Department of Health, about the quality of those services, and the provision of those services, and to the public and others who are commissioning those services. So it’s a vital part of quality assurance and improvement.

Counsel Inquiry: Thank you. And just for the purposes, then, of this module, both residential nursing homes, with and without – care homes with and without nursing care and domiciliary agencies fall within RQIA’s remit; is that right?

Ms Briege Donaghy: Yes, maybe very quickly – I know time is pressing – there are 470 care homes registered with RQIA. About 250 of those would be nursing, 220, roughly, residential. And just to say briefly – I appreciate the time pressure – domiciliary care is quite unusual, in that we’ve 300 services registered with us but 100 of those are what I think most people would consider to be traditional domiciliary care, providing services in people’s own home, in the country and the town and wherever. But there are 200 of those services that are registered with us for supported living facilities. This is quite unique and quite specific.

Counsel Inquiry: Thank you, Ms Donaghy, and as you know, time is pressing and I’m keen to explore just a couple of issues with you and perhaps if before the break we could explore the circumstances that the RQIA found itself in, in March 2020.

Now, I am aware there has been an independent report into this, the Nicholl review, if I could call it that today.

Ms Briege Donaghy: Yes.

Counsel Inquiry: But at page 14 of your witness statement, at paragraph 46, you set out that a number of in effect what I’d call the “executive team” were redeployed from RQIA, the chief executive ended up at the Public Health Agency, the head of business support, the director of improvement, and the medical director all ended up at the Department of Health. I suppose what I’m interested in is not, perhaps, the rights or wrongs of that for today, but what impact did those redeployments have on RQIA’s ability to regulate and to deal with the pandemic in March 2020?

Ms Briege Donaghy: As I believe I said in my statement, I think quite significant impact.

Briefly, to explain, RQIA is a small organisation, at the time and not much different since, about 130 of us in totality. The senior management team at that time would have been the chief executive, two directors, and a head of business services. There was also two deputy directors in this structure.

Looking to those four critical posts, chief executive, two directors, one head of business service, three of those staff were redeployed, as you’ve described: chief executive, a director, and business services. That left one director, who I would add was very new to the post, had moved into that director’s position maybe six months previously.

Now, I think it’s reasonable to assume – here’s an organisation facing into a pandemic with an interim chief executive, very inexperienced, who worked very hard, do not get me wrong, but coming into that situation with no directors reporting to him. One deputy director remaining. A new organisational structure had to be devised very quickly.

Counsel Inquiry: Sorry, if I may, turning that almost – the impact then on the adult social care sector.

Ms Briege Donaghy: Yes, I will very quickly explain. In the time of crisis, I would suggest, and I’ve worked in the health system in Northern Ireland for a very long time, I would suggest at a time of crisis you need your most experienced, your most senior individuals, experienced processes and procedures, clarity of understanding of roles. All of that, much of that, was gone.

The organisation worked very quickly to reorganise itself and begin to take decisions about operational practice, but one of the most fundamental aspects that were missing – the experience, obviously – the regular processes of governance were missing. And the challenge and oversight of decision making was not what it should have been.

Counsel Inquiry: Then there was a second issue which occurred a couple of months later then. So on 18 June 2020, all the members of what’s called “the authority”, which is perhaps the board of the RQIA –

Ms Briege Donaghy: Yes –

Counsel Inquiry: That’s a fair description?

Ms Briege Donaghy: Yes.

Counsel Inquiry: – resigned en masse. In terms of the impact of that at paragraph 66 of your statement, you said that this meant the RQIA did not have the full complement of strategic leadership and oversight required to effectively manage the organisation’s normal business.

Again, I’d be very interested in your reflections of how that impacted on the regulation of the adult social care sector. I understand it was operationally very difficult at a high level but what about the impact on adult social care sector?

Ms Briege Donaghy: The two events that you’ve described are clearly linked. It exposed the loss of the senior officers, exposed, very possibly, longstanding issues of lack of clarity on process and procedure. The standing down of the authority members in the June was, I have to be honest with you, it was shocking. I mean, it’s – in the height of a pandemic, to be facing into such organisational issues is just – it would not be welcome at any time but it was particularly difficult at that time.

Although we say the others raised – the loss of the other senior officers, you know, raised issues of operational practice, the lack of governance in place through the board, as you describe, or authority, as we say, meant this is decision – what were considered to be operational decisions were not subject to challenge or scrutiny. It was, in my view, and I think the view of the Nicholl Report as you refer to, that many of those decisions were not operational. They were policy decisions. They were issues that should have been, you know, discussed at the highest level of the organisation, because they changed the fundamental practice of the organisation.

So that means those decisions were made and effected without effective scrutiny and oversight. And that, it may not have made any difference to those decisions, it certainly implied, in some of the emails sent by some of the members, that they didn’t dispute the decisions in themselves, but they did dispute the process, but I would argue that there was a lack of scrutiny and challenge and rigour and that brings with it, you know, concerns and difficulties.

Counsel Inquiry: And those concerns and difficulties, did they impact on RQIA’s ability to discharge its statutory function in March and June 2020?

Ms Briege Donaghy: Well, they allowed decision making at an organisational, operational level, to persist without scrutiny. Does that affect decision making? Does it affect delivery? I believe so. Otherwise, I’d be concluding that effective governance and scrutiny and oversight is not a requirement of – and you make the remarks, sir, particularly about the delivery of services to vulnerable adults in social care settings, I would argue that it’s essential to have effective scrutiny and effective oversight and decision making and challenge.

Counsel Inquiry: Perhaps just maybe before we finish this point and perhaps then go to a break, the Nicholl Report found that the crisis could not have happened if the Department and the RQIA had the basics of good governance in place, clear rules, well established and functioning relationships. You do set out in your statement that intensive work has been undertaken, but at date, there still is not the required or recommended partnership agreement in place between the Department and the RQIA. Is that work any further advanced at today’s date?

Ms Briege Donaghy: Well, I’m pleased to advise that it is, and indeed, at the end of last week, myself and the authority chair signed off the partnership agreement, and it’s currently with the Department of Health for counter signature. I would say it has taken us a considerable time to get to this point. The Nicholl Report and all of that, we’re talking, what, four years ago? And set out in the minister who commissioned that report at the time, I think it was thought that the RQIA would be the vanguard of these new partnership arrangements and leading, and perhaps signing way beyond others might have, and yet others have adopted partnerships agreements in advance of this.

I think it demonstrates the level of anxiety on both the Department of Health and us in RQIA to ensure that what occurred under – reported under the Nicholl Report will never recur, and we have taken the time to ensure we understand our roles, responsibilities, and how we will engage effectively with each other. And that’s been worth, I think, spending that bit of additional time on.

Mr Beech: Thank you.

My Lady, that’s the last of my governance-type questions. I don’t know if now is an appropriate time.

Lady Hallett: Certainly.

I’m sorry we can’t finish you before lunch, but we’ll definitely finish you for this afternoon. I shall return at 2.05.

(1.05 pm)

(The Short Adjournment)

(2.05 pm)

Lady Hallett: Mr Beech.

Mr Beech: Thank you, my Lady.

Ms Donaghy, I’d like to spend some time this afternoon discussing the RQIA’s inspection regimes and how they changed during the pandemic.

You set out in your statement that prior to the pandemic, residential nursing homes were inspected at least twice every 12 months, and domiciliary care agencies were inspected or to be inspected once every 12 months.

And your statement also sets out that up until the end of the financial year 2019/20, RQIA was consistently meeting those targets. Is that correct?

Ms Briege Donaghy: Yes.

Counsel Inquiry: Then could I just ask you to briefly comment on something which is contained in the CQC’s supplementary statement where they acknowledge that the CQC recognises that on-site inspections are an integral part of regulation. Do you agree with that statement?

Ms Briege Donaghy: Absolutely.

Counsel Inquiry: If I may then bring up a piece of correspondence from the Chief Medical Officer at INQ000103688, and this is dated 20 March 2020?

Ms Briege Donaghy: Yes.

Counsel Inquiry: It’s entitled “Coronavirus Covid-19 - Departmental Directions”, so this is one of those rare occasions where the Department is directing RQIA to do something. And it states:

“The Departmental is directing RQIA to reduce the frequency of its statutory activity (as set out in The Regulation and Improvement … Regulations 2005) and cease its non-statutory inspection activity and review programme with immediate effect …”

Could you briefly just assist the Inquiry in understanding that distinction? So there’s statutory and there’s non-statutory inspections. Which one relates to adult social care?

Ms Briege Donaghy: Statutory.

Counsel Inquiry: Statutory, and those are those inspections twice every 12 months and once every 12 months which we’ve been just outlined?

Ms Briege Donaghy: Yes.

Counsel Inquiry: This wasn’t the RQIA’s decision; this was the decision of the Chief Medical Officer. Is that correct?

Ms Briege Donaghy: Yes, I’m conscious I’m just saying “yes” and “no” to you and there are some things you’ve said earlier that I need to qualify with you, but yes, it was a directive and, as I’ve explained earlier, a directive compels the RQIA to comply. But if you wish, I would say the RQIA’s senior team at the time agreed with the decision. So that’s something maybe we can come back to, or …

Counsel Inquiry: Well, I think that’s perhaps sufficient. You weren’t in post – you weren’t even in the organisation at the time –

Ms Briege Donaghy: No.

Counsel Inquiry: – but it’s your understanding that RQIA senior team at the time agreed with the position adopted by the department?

Ms Briege Donaghy: Yes, because as I mentioned earlier, sir, that I have reviewed the documentation and spoke with senior staff. And may I very briefly just say, when you mentioned to me, maybe just for clarification, statutory meaning it’s set out in the regulations – you must go on a particular frequency of inspection. It’s a bit difficult at times, because sometimes the words are used interchangeably. “Statutory” meaning NHS services. But in this context, “statutory” means where you are compelled to visit on a routine basis, and I – you mentioned earlier that I’d said in my statement, and I take it that I must have, then, said that the inspections should be at least twice.

May I clarify, it would ordinarily be twice, not at least, which implies we did a lot more than that, that wouldn’t necessarily have been the case. It was a routine pattern of two inspections to a care home in an inspection year, and one inspection to a domiciliary care agency.

Counsel Inquiry: Thank you. For present purposes I’d really like to focus on this piece of correspondence here from the Chief Medical Officer.

Ms Briege Donaghy: Yes, yes.

Counsel Inquiry: And you’ve accepted RQIA were consulted. Do you know what, if any, consideration was given to inspections continuing in line with the regulations but subject, perhaps, to the provision of testing or the provision of PPE? Were those matters considered in March 2020?

Ms Briege Donaghy: From my review or reflection, no, those weren’t matters that were part of the discussion. But the element of the letter that you’ve displayed on the screen, although it describes one element of it, I believe other – part of the letter does indicate that inspections could be carried out on the basis of risk or judgement. And I apologise that I just don’t remember the exact words that were used, but it did imply that although these statutory, regular inspections would be stood down, non-statutory applies to inspections carried out in the HSE, in the hospitals. They’re non-statutory, meaning there isn’t a regular regime of it. But the letter does indicate “and you could undertake inspections on the basis of risk or judgement”, I believe, sir, from my memory.

Counsel Inquiry: I’m going to return to this issue of testing and PPE.

Ms Briege Donaghy: Yes.

Counsel Inquiry: Do you know if they were available to RQIA inspectors in March 2020?

Ms Briege Donaghy: No, they would not have been.

Counsel Inquiry: And was that –

Ms Briege Donaghy: A factor? No.

Counsel Inquiry: Was that a capacity issue at that time in the system or was that a choice –

Ms Briege Donaghy: No, PPE became available in the latter part of March, to my recollection, and speaking with colleagues, and it was made available to us from – the shared services organisation that we used to make supplies to us, and also donations and so on were made – were delivered to us.

Counsel Inquiry: May I just take you to paragraph 128 of your witness statement.

You outline that between April and June 2020, only 44 physical inspections took place, starting from around 200 in the similar period the year before, and therefore there’d been a significant reduction in activity.

You then state at paragraph 152 of your statement that:

“Upon reflection, RQIA believes the Direction insofar as it affected care home and [domiciliary care agencies] … had a modest impact on RQIA activity.”

Just considering the large reduction in inspections, and there was also commensurate reduction in enforcement activity as a result, do you continue – or can you explain why you consider it was only a modest impact?

Ms Briege Donaghy: If you’d be kind enough, I need to go back to the start of your sentence, because, you know, there’s a quantum leap in there from the position of standing them down to a reflection on the impact of it.

I would wish to say that the decision for standing down the regular inspections, from what I can ascertain from speaking with people and reading documentation, was a fear of footfall.

Now, I have heard it said, and colleagues will often say to me, “And how could one inspector going into one care home cause so much concern about a risk of transmission?” But I do think it’s important, sir, to say that in the scheduled inspection programme that we’ve mentioned briefly here, we have 17 care home inspectors for 470 care homes. That means each inspector has roughly a caseload of 30 care homes. So those who made that decision about standing down the scheduled inspections would have understood that one inspector would be going in and out of multiple care homes. That was the methodology at the time.

And I believe it was a factor in concern about transmission.

The letter that stood, the directive, did not give the reason for standing it down. I think it just said, “in these difficult times” or something like that. But later, when it was rescinded, it referred to the transmission rate being lowered. Therefore, I conclude that my assertion that the original reason was footfall was further addressed.

Now, I’ll come immediately to the issue of this modest –

Counsel Inquiry: If it you wouldn’t mind because you’ve stated here that it had a “modest impact on RQIA activity”, and that’s just the real issue I’d like to explore –

Ms Briege Donaghy: I agree with you.

Counsel Inquiry: Do you continue to maintain it only had a modest impact?

Ms Briege Donaghy: I do, because this is not about diminishing the impact of lost physical inspections of care homes, or any other service for that matter. That was, as I’ve said throughout my statement, significant. I mean, RQIA is known for its inspections, as are most service regulators. It’s the most visible aspect of our work. So the loss of that is clearly immense. But what I was aiming to indicate by saying modest activity overall, we do have, as I mentioned earlier, a range of other roles: registration, and notifications about changes in managers, all of those types of things, and notifications about deaths, about accidents, about incidents. And as I mentioned earlier, we take calls every day from the public, from families, from care homes, from others, seeking advice and support about aspects. All of those other services continued and increased significantly.

So, for example, calls to us in the month of April, we received 2,200 calls that month from service providers and families and the public. Ordinarily we would receive, on average, 300 calls – in a month. So demand for other parts of the service increased close to tenfold. I was trying to indicate that staff in the RQIA were still busy working. Overall activity levels were increased dramatically, so much so that we were working, colleagues were working seven days a week, so my word “modest” may be poorly phrased on my part, but it was to indicate that overall, work in the organisation expanded, but the loss of inspections, physical inspections, is a very significant matter.

Counsel Inquiry: You’ve already outlined there the contents of the 22 June letter from the CMO which rescinded that direction. So from 22 June, that direction’s gone. Was RQIA expected, then, to revert back to twice annual and once annual for domiciliary care agencies from that point thereon?

Ms Briege Donaghy: I’m not sure if there was an absolute clear expectation to that, but I do recall reading correspondence between the interim chief executive of the time and the Department of Health asking the chief executive, “Are you able, are you ready, to recommence your inspection approach?” And his response was, “No. No, we’re not.”

And he explained, for a number of reasons, including the loss of inspectors through shielding and, you know, being unavailable and so on.

I’m not sure if the Department actually expected a return to twice annual. I believe it would be more likely to have understood that everybody realised, as a result of the pandemic, that intelligence-led inspection had to be a part of it.

Once you’ve learned that, once you’ve understood that, you could not revert to a situation where you only inspect on the basis of some rota, it would not be practical or possible to do that.

So I believe it was inherent in the arrangements. And I should say, sir, that the physical inspections recommenced on 30 April. So they did not wait for the letter rescinding the arrangements. The prompting to restart was based on the intelligence coming in, which I’m sure we may come to, and the fact that the original letter had indicated the idea of undertaking inspection on the basis of risk, but actually there was no methodology for that. It hadn’t been developed at that time.

Counsel Inquiry: Can you help us maybe explore the methodology and perhaps bring a bit of light on the issues you’re raising here.

So if I could have on screen, please, INQ000475143, and specifically page 34, that’s table 7.

This your statement setting out again the number of inspections that have taken place. So 19/20, there we go, looking at the bottom line, 1,408. That reduces to 860 for 2021. We’re never quite – RQIA have never quite made it back up to the 1,408. Is that reflective of what you’re describing this shift away from “We must inspect twice annually” to more of a “We need to go where the concerns lead us and to make sure whatever intelligence we’re receiving we focusing our attention there as opposed to on a strictly time-based approach”?

Ms Briege Donaghy: A blend of both. In the past, pre-pandemic, the focus of RQIA inspections – or at least there was a very strong focus on achieving the target of two inspections or one inspection, and that’s not to say that I am quite certain that those inspectors undertaking that work would have done so with diligence. However, since the pandemic, and the work that has been done during it, it has led us to understand that some care homes and others – but care homes in this instance – present – factors that are going on in those homes present a greater risk to patient safety than others. And therefore, we have adopted a hybrid, a caution, if you like, where we inspect all care homes once per year and we inspect as often as is necessary, for others, to ensure we’ve addressed the issues of risks that are presenting.

So, for example, last year, we would always visit all of the care homes once, 50% would have had two or more visits, and on preparing for the Inquiry, the most inspections we carried out last year in a particular home was five. The previous year there would have been nine.

So it’s not about counting, however. It’s not about that. It’s about ensuring we are using the information we have to drive regulatory efforts and ensure quality standards are met.

We believe there’s a hybrid there for needed. There is a reassurance in going out on a regular pattern, whether or not there’s intelligence that might draw it to your attention. So we have it introduced. We will not, in my view, get back to the 1,100 that we were doing previously. I don’t think that will be practical.

Counsel Inquiry: Can I just ask you to keep your answers slightly shorter. I really appreciate you assisting. We’ve got a stenographer who is trying very hard to keep up, and it’s probably both of our Northern Irish accents aren’t doing anyone any favours – (overspeaking) –

Ms Briege Donaghy: Thank you – (overspeaking) –

Counsel Inquiry: I’m going to return to the period of time in which the direction, okay, was in place and I’m going to ask for evidence from the Northern Ireland Commissioner for Older People on the screen.

So if I could have INQ000474926, please, on page 50, paragraph 149. It straddles the top of the page here.

It’s the position of the commissioner that the advice seemed “to me” – he’s talking about the direction – contradictory.

“The Intent was clearly to reduce footfall in care homes, but given the infrequent activity in each home, the health qualifications of inspectors and the fact that homes had social care staff coming in and out not tested, and not adequately trained in infection management and control, the impact of a solitary inspector would have seemed a completely reasonable risk.”

Was any of that, to the best of your knowledge, considered in March 2020, and do you agree with the commissioner that it would have been a completely reasonable risk?

Ms Briege Donaghy: Well, that’s a big ask. But I go back to the point I made earlier. One inspector going in to 30 care homes, each inspector – if we had continued the approach, the scheduled inspections, had there been no change, then one inspector, assuming we could have retained all the inspectors, and that people wouldn’t have become unavailable, one inspector was not going into one care home. He or she would have been moving between homes.

I believe that was understood by those (unclear), although it was not explicit in the documents I read. So I can understand the commissioner’s perspective, but I think it jars a little with the reality of the caseloads.

Counsel Inquiry: And just on that, then, on reflection, do you consider that the departmental direction as it was set out, was appropriate?

Ms Briege Donaghy: Sir, I wouldn’t be qualified to know whether that policy position has a scientific basis for reaching that conclusion, but RQIA’s role has always been the implementation of policy, and the compliance with it. So I wouldn’t be qualified to say.

Counsel Inquiry: I’m going to return to the CQC’s addendum statement then, and they adopt the position that:

“… in the event of a future pandemic, strenuous efforts should be made to protect the ability to carry out on-site inspections as much as is practically possible.

“… they play a vital role in assuring the safety and quality of services … But it should be recognised that on-site inspections cannot … take place in a pandemic if they increase risk … to … the care settings …”

Do you agree that in the event of a future pandemic, on-site inspections would have to play a vital role in assuring safety and quality of services?

Ms Briege Donaghy: Yes, we do agree.

Counsel Inquiry: And having reflected, as you quite clearly have done, what could be done in the event of a future pandemic to ensure that oversight provided by on-site inspections could continue as much as safely possible.

Ms Briege Donaghy: I think it’s an expansion of what I’ve already mentioned to you. Pre-pandemic, the only methodology known, understood, was rotational, a rota basis, and an inspector aligned to 30 homes, for example. What is more important, we believe now, is that the skills and knowledge of the inspector should be aligned to the presenting risks in the care home. So for example, very briefly, our inspectors would all come from a care background. So would the senior inspectors and, indeed, the directors. All – or myself, and chief executive role and other, I don’t have a clinical background, but all of the colleagues working in the delivery of those services have a clinical care background.

It’s more important – and ordinarily for residential care homes in the past, our social work staff would have been assigned to carry out the inspections in residential care homes most usually.

In the new model, the adjusted model, we now align the experience of that inspector, whatever that background is, pharmacist, nurse, social worker, to the presenting issues in the home. And we still have the safety net, I suppose you would say, of having a regular, you know, scheduled inspection programme, as well.

In a pandemic, our view is that the balance of these two should be adjusted. Rather than an abrupt end to inspection, we should leverage up the intelligence-based approach, reducing the scheduled, so that there’s a portfolio of inspection approaches available, including a remote and technically enabled where it is suitable. So there should not be a guillotine to the end of expectations, but rather, a hybrid approach.

Counsel Inquiry: If I could ask you – that’s very helpful in terms of bringing us on to virtual or the use of remote inspections.

I understand from your statement that some 22 remote inspections were tried during the pandemic – or trialled, let me perhaps rephrase that – during the pandemic –

Ms Briege Donaghy: Yeah.

Counsel Inquiry: – covering both care homes and domiciliary care agencies. It’s a relatively small sample size but did that find that this would work in the future or that there was scope for greater use of virtual, and particularly in the context of care homes at this stage?

Ms Briege Donaghy: Yes, that was ‘22’, if I recall correctly, in that period. So there were more than that, but not many. You know, you’re probably talking 50 or 60 in totality across the services.

Care homes, in the main, find them cumbersome, difficult to facilitate, because our inspection approach is threefold, if you like. You’re listening, you’re speaking, you’re hearing what people are telling you, you’re looking at documents and so on and then you’re observing. This is pretty difficult to do using remote technology. The care manager, the care home manager would have had to email documents to us, for example, so we could look at rotas and policies/procedures, maybe visitors logbooks, that sort of thing.

It facilitated the verbal okay in terms of all of that and then they’re using an iPad or something to show you around the building and so on. Care homes generally indicated that they found it cumbersome, difficult and time consuming; but not so much so in supported living domiciliary care, it seemed to be more suitable for that environment and I’ve noticed some of the other respondents have indicated that as well.

So I think we will certainly keep it in our portfolio of methods but it seems to be more suitable to a domiciliary care setting than a care home setting.

Counsel Inquiry: In the future do you consider that it would be helpful or necessary to have clear protocols, written protocols, escalation, in terms of this is how RQIA would go about its business in terms of in inspecting, these are the factors to consider? Would it be helpful to have a clear protocol setting out those steps, how, in-person, remote and a blend of the two would be used? Would that have been helpful and would it be helpful?

Ms Briege Donaghy: Well, it was essential, and that is – I mean, from the stepping down of the inspections on 20 March, or the stopping, just to be absolutely clear, the stopping of the physical inspections, they recommenced with – the first of them were these virtual inspections on 24 April. And then the first physical inspection is on 30 April. To lead up to that, the documentation you’ve described was developed. So a risk matrix was developed about determining the intelligence that would be used to decide whether it was a physical or a virtual. All of those things had to be developed. Inspector packs, so to speak, had to be developed, so they were preparing for the inspection in a different way because, remembering now, you don’t have an inspector necessarily aligned to a home that he or she is familiar with.

So all of that had to be devised including adjustment of the templates used for the reports produced after the inspection. Those were all revised, updated, if you like, to allow for that hybrid approach.

So they would be absolutely essential and are now part of our policies and templates that we would use in those circumstances.

Counsel Inquiry: If I could move away from inspections to ask you some questions about the Services Support Team which RQIA put in place. Briefly, was this is an initiative which RQIA proposed or was it directed by the Department?

Ms Briege Donaghy: I’m not certain if I can be precise about it, but it certainly seemed to be reached an agreed position on it, whether who suggested it first, I couldn’t honestly say, although I have read all the documentation. But it seemed to be reached an agreed position on it. It’s interesting, I suppose, to say that when I look back over the correspondence and so on, I did note that the chief executive at the time, the substantive chief executive, way before there was any correspondence issued about RQIA about setting up this team or being a point of contact for care homes and what have you, the chief executive sent an email to the Department of Health when they were discussing, it seemed, the standing down of inspections. She replied, “Yes, you know, I would agree with you”, some words to that effect. And she went on to remark, “because we are inundated with requests for support.” This is, I think, 13 March.

So, you know, who suggested it first that we should develop a support services team, I’m not certain. But there was a demand for it, so to speak. Up until that, we would have had, like most regulators I imagine, a duty inspector, a duty desk, so we would have one inspector usually taking calls on a day-to-day basis, maybe with an extra person to support when it was needed. But given the scale of this demand, literally thousands of calls coming in from March, late March, there were 500 or 600 calls, the following month 2,500 almost. There was a need to develop that. I should make it plain: this support services team is the inspectors.

Counsel Inquiry: Yes.

Ms Briege Donaghy: This is the same group of people supported by senior inspectors and other senior officers and administrative staff.

Counsel Inquiry: If I may just take this opportunity to assist perhaps in helping understand exactly what we’re talking about. So on 25 March, so roughly two weeks after that correspondence from the former chief executive, the Chief Social Worker wrote to everyone, all registered providers and said:

[As read] “The main objective of this exercise is to ensure that providers have a single point of contact to raise issues and receive the most up-to-date advice, guidance, and support from RQIA’s expert teams of inspectors”, who are all registered nurses, social workers or allied health professionals.

Did this Services Support Team provide or perform any type of regulatory function, or was it more in the realms you were talking about earlier of the supporting side of RQIA’s work?

Ms Briege Donaghy: Well, it’s the supporting side. However, I would suggest that our work as a regulator is to support providers, in many ways, to achieve compliance. I mean, yes, I’ve heard it, you know, reported as we’re a policing service and so on, but actually part of it is – we would commend a care manager for ringing us. I mean, a care manager, a care home manager ringing us to ask for clarification on a guidance that’s been issued, or to discuss concerns they have about not having sufficient numbers of staff, or are worried about accepting the discharge of a patient from hospital, we would commend providers for doing that. We think that is part of regulation where they say, “How will I go about this? What are others doing? What answers might I have?”

Those staff that are working in the support team at that time are inspectors who knew these care managers. I mean, a lot of them would have been known to each other, they’ve built up a working relationship over a long period of time. It’s problem solving together, so they’re talking together about, you know, what options do you have? You know, how have you addressed that before when you had staff shortage? Or, you know, trying to prompt and support the care home manager. I would not see that as, you know, some describe regulation as being the policing of it. But I do think that supporting people to understand what’s required of them, and they accepting advice and seeking advice, is not a conflict with regulation, but in the definition you’ve given there, it seems these things are opposites or are not complementary, but I would suggest they’re complementary.

Counsel Inquiry: I’m just going to give you an opportunity to comment on something that was contained in the Nicholl Report which we discussed during the break.

If we could have INQ000260368, and page 12, please.

The reviewer here acknowledges that the Services Support Team appear to have – that the providers, the trust, and the department appear to have appreciated the RQIA’s efforts as part of the HSE response to the pandemic.

But then at paragraph 24:

“… this decision to make RQIA into a single point of contact and support for providers fundamentally altered the ‘purpose’ of the RQIA.”

Now, I’m not particularly interested in the second part of that sentence, because that almost goes back to governance matters we discussed earlier, but do you accept that the S – the Services Support Team amounted to a fundamentally altered purpose of RQIA?

And perhaps just to borrow the language of the NI Covid Bereaved in their written opening submissions, they say a listening ear is very different from a critical eye. Do you accept that this amounted to, in effect, a shift in position on the part of RQIA from its statutory function?

Ms Briege Donaghy: Yes, because the Nicholl Report was accepted in its – fulsomely by the authority, so I’m not disputing any of the points that the Nicholl Report, you know, identified, and I do think it was certainly an unusual step, but – there was a phrase you used there about, sort of, a listening ear, I would just add – and I know I already have said it, sir, but the support team were more than listening; they were advising, encouraging, empowering, problem solving. And I think that’s complementary to our role as a regulator.

Counsel Inquiry: If I may, just to comment on a final piece of written evidence the Inquiry has received, which is a witness statement on behalf of Disability [Action] NI from a Joanne Samsome, which appears at INQ000520343, and in particular, paragraph 113. Thank you.

“The RQIA’s decision to set up the [Services Support Team] at the start of the pandemic bought about many benefits to Care Sector service providers as it acted as a good source of the information and advice which was not always available through published guidance. That service, however, should not have been at the expense of inspections. The SST also sadly stopped operating without warning as the pandemic eased and Disability Action are not aware that it was reinstated for the second wave.”

I fully appreciate you’ve said that it was manned in effect by the inspectors, but I suppose when and why was it stopped? And is it possible to have inspections and the support team or is it the simple choice of one or the other?

Ms Briege Donaghy: No, it is possible to have both, and I agree with the point that it shouldn’t be at the expense of inspections. I agree entirely with that. And as I’ve said, on reflection, our view now is that inspections, physical and remote, should they be needed, should be protected, and there should be a balancing of the method that is used.

The Services Support Team emerged and evolved into what we now call the Guidance Team. So the Services Support Team as was described, which was a very, you know, significant number of inspectors and admin staff, reduced, but had remained in place. We continued to have inspectors made available, but a very small number, and we had complemented it with administrative staff. We still have it to this day. We have two dedicated staff taking all of the calls on a day-to-day basis, and we have inspectors on duty desk supporting and providing them.

So we didn’t stand it down. It was not stood down abruptly. But I do agree as well, we have not made – we did not make sufficient efforts, possibly, to communicate that with the public. So it would have been unknown and I can understand the individual’s perception that it had been stood down.

The demand changed dramatically. From that month of April, and I’ve mentioned the 2,000-odd calls, the following month, in May, you’re talking somewhere around 600, then 500, then over the summer and into those other months, roughly typical numbers – not a great way to explain it, but about 300 calls. So we sized the team proportionate to the demands that were coming in.

Counsel Inquiry: Okay. If I may just bring you on to a couple of other aspects of the RQIA’s management or handling or assistance during the pandemic.

A general point, perhaps, at first, at paragraph 231 you state that:

“From April 2020, RQIA, on behalf of the Department and [Public Health Agency], acted as a distribution point for the latest Departmental direction and guidance …”

There’s some suggestion that perhaps regulators could take on a broader point or a broader role than just distributing guidance, but actually using their knowledge of the sector to produce guidance. Do you accept that that may have been of assistance, and then, if it’s not unfair to ask you, would it have been of assistance and would it be compatible with RQIA’s role as the independent regulator?

Ms Briege Donaghy: We do, my colleagues do, produce guidance for care sectors, including care homes, but it is guidance on the interpretation of the policy. The guidance you’re referring to, I believe, sir, is policy itself. It’s guidance around visiting, infection prevention and control and so on, and my RQIA colleagues would write guidance for providers to describe to them the evidence that RQIA would be seeking to demonstrate compliance with those policies. We would not write the policy document or the guidance document in itself.

Counsel Inquiry: Thank you. Can I ask you briefly about visiting, and in particular I’d like to focus some attention on the care partner concept which was produced, I believe in September 2020, and the attempts to roll it out thereafter.

Ms Briege Donaghy: Yeah.

Counsel Inquiry: In your statement, if we could have INQ000475143, in particular page 7 up, please.

And at paragraph 23 there you describe being involved in a group, along with representatives of the former Health and Social Care Board, the Public Health Agency, and the Patient and Client Council. I think this is what’s going as the Care Home Engagement Platform?

Ms Briege Donaghy: Yes.

Counsel Inquiry: In the very last sentence:

“The PCC [The Patient and Client Council] would also make referrals to RQIA where families had concerns about the implementation of this guidance and would follow up on these.”

And in a similar vein, then, at paragraph 209 of your statement, you set out that:

“RQIA’s care homes inspectors considered both the visiting and the Care Partner guidance during inspections, ensuring [these were] appropriately implemented.”

Whenever the PCC or any other body raised concerns with RQIA about visiting and, in particular, the care partner concept, what action would RQIA then take?

Ms Briege Donaghy: Concerns raised by Patient and Client Council or if families rang us themselves, or through the trusts, each of those would be followed up by an appropriate inspector to the particular care home in question. And efforts made to ensure that the provider, the care home provider, took steps to comply with the visiting guidance and maybe speak separately about the care partner, which was a little different.

If it’s helpful to say, sir, it may be useful to say that in Northern Ireland, the right to have access to visitors while you’re living in a care home is already set out in the regulations and standards. So that’s already a part of it, and I’ve read from others that I know that’s been developed in other jurisdictions, but it’s already a part. But it was, there is no denying, it was one of the most difficult policy decisions to try to ensure compliance with. I noticed on the screen as you put up a moment ago, reference to the guidance that was issued out, and I counted up in my own statement 22 incidents of where RQIA issued guidance and clarification to care homes about visiting – some of those within days of each other.

So we were issuing on behalf of the Department complex, challenging guidance for implementation out to care homes – quite rapidly and repeatedly.

The job of the inspectors and senior inspectors and others was to secure compliance with that, even despite the changing nature of it, even despite the evolving nature of it. And so they intervened in individual cases and I’ve reflected on some of those records and notes and so on to assure myself that individual actions were taken, and I’m satisfied that there were.

Sometimes it took incredible amounts of time to try to find a solution with the provider that they were satisfied with. I mean, you will know, I’m certain, that for registered homes, when you walk into a care home in Northern Ireland, possibly other parts of the UK are the same, there’s a certificate on the wall, and it’s issued by the regulator. And the names on the certificate are the registered manager and the responsible individual. And what we found was that there was a huge level of fear of footfall, including family visits, sadly. And it – the inspectors and other colleagues found it at times – sometimes providers were able to manage and convert the guidance into operational practices and get things in place – but there were times where it was incredibly difficult. And there was a lot of work required.

Counsel Inquiry: You’ve mentioned there – and please forgive me for speaking over you, of course, you’ve mentioned there that at times the inspectors found issues –

Ms Briege Donaghy: Yes.

Counsel Inquiry: – and that a lot of work was required. And you also referred to “intervened if appropriate”. Can you confirm if any regulatory enforcement action was taken against a care home in Northern Ireland regarding visiting restrictions or the care partner concept?

Ms Briege Donaghy: I’m just going to take both of those, sir. “No” is the answer in both, to be brief about it.

And I think for the visiting – I’ll come to the care partner, but for the visiting, whilst it was established in the standards and regulations for the – from the outset, visiting in care homes in Northern Ireland up until that point was open visiting – I mean, bar circumstances where you – maybe a flu outbreak or gastroenteritis or something like that, and families would have understood there may have been an interference with visiting. But it was a new idea, a new concept that of restricting it, and, as I say, rapidly changing and evolving the arrangements for it.

The judgement call by the multi-disciplinary team of inspectors and seniors was that the approach should be supportive, encourage compliance. They did not use enforcement at that time, although I do know from speaking to some that at times it came close to that, but they felt they made progress being more proportionate and focused and so on.

Care partners, in the correspondence from the Department of Health that I have read, says it does not have legislative underpinning. So it wasn’t tested, so to speak. We did not take a regulatory action, but care partners are not visitors. Care partners are not employees or volunteers. So I’m not certain the legislation we have would have enabled us to take enforcement, and we didn’t try.

Counsel Inquiry: Can I ask you, on reflection and given the importance which is now attached to visiting in care homes, as you say which is underpinned by the regulations in Northern Ireland, could RQIA have done more to ensure that visiting was available?

Ms Briege Donaghy: Difficult to say retrospectively. But should – if the same circumstances arose now, would we be more likely to take enforcement action? I suspect so, but only because the guidance is now something people, sadly, have become more familiar with. It’s already in the standards, there is potential to take enforcement action. I suspect it might be considered more.

But we do have to remember, I mean, care homes are not one facility that’s multiplied, you know, across our region. I mean, care homes, every one of them are bespoke. Many of them are bespoke built. Of course they are. But others are not. Others have come from, you know, a range of pasts. And the idea that it’s readily achievable to implement a single policy at scale, at pace, without some kind of consideration of the circumstances for that particular home, its layout, its residents, its staffing, it takes judgement to consider what’s the most appropriate, proportionate mechanism to achieve that end outcome that you’re after.

Counsel Inquiry: If I may move on to the issue of isolation facilities, and if I could refer you to INQ000514710, in particular, paragraph 29, and this is guidance from the Department of Health dated 26 April 2020.

As I say, paragraph 29:

“Some care homes will have been assessed by the RQIA as not having the ability to appropriately isolate individuals because of the configuration of their premises.”

What I would like to explore with you is, when was that assessment carried out? How rigorous was that assessment?

Ms Briege Donaghy: It was carried – well, “assessment”, I suppose, is the correct word for it. During the month of March ‘20, RQIA staff made calls out to care homes and other providers. They made 1,200 calls, as what was called part of a preparedness assessment. And for care homes, there were around – over 400 participated in that, and over 200 of the domiciliary care providers. And when they were asking – when colleagues were asking care homes, they asked them as self-assessment. It was self-assessed, if you like, in that the RQIA staff would have said: if you need to isolate an individual or a number of individuals because of maybe someone discharged from hospital or an outbreak in the home, do you have the capacity, do you have the mechanism to do that?

All those calls were recorded, and those homes that indicated they believed they would have a problem were recorded and risk rated, if you like, so they were red risk rated, for want of a better description.

Those were then followed up with individual calls from experienced senior inspectors. There were not many. From my knowledge of speaking to colleagues, you’re talking less than ten out of over 400 who indicated that.

The colleagues went back and said – sort of prompted with the individual, “Well, hold on, let’s think about that again”, because all homes have had to at times create isolation facilities, for flu and so on. And so there were no homes that, to the best of my knowledge, that were identified as “could not isolate”. There were solutions sought and explored with all of those homes, although several then ended up also having inspectors go out on a sort of – not an inspection as such, but a support visit, to assist the home, particularly residential homes, who tend to be smaller than the nursing homes. They tend to be – several of them are quite small.

So some inspectors went out on support visits, basically to talk through these things. We never got to a point that there were homes on a list who couldn’t provide isolation.

Counsel Inquiry: Thank you. We’ve obviously talked an awful lot this afternoon about residential and nursing homes. Do you accept or do you have any comments on the level of assurance or regulation provided to domiciliary care agencies during the relevant period? Were the arrangements in place sufficient to ensure oversight of those services?

Ms Briege Donaghy: This is a difficult one, sir, because, as I said earlier, my Lady, there’s 300 agencies – which already sounds quite remarkable when you think of it – 300 domiciliary care agencies registered with us. One hundred of those, roughly, are traditional agencies. The inspections of those began in earnest, I would say, again, from July onwards.

But the area that would concern RQIA are the domiciliary care services provided in supported living settings. Because as I mentioned earlier, the supported living facilities themselves are not registered. It’s the personal care entering into them. There’s more work to be done there.

Counsel Inquiry: Thank you. I’ll just – what – particularly focusing on the home care, the domiciliary care, outwith the supported living scenario, what more could be done to strengthen that oversight and assurance in the event of a future pandemic?

Ms Briege Donaghy: Well, for all of our services, and particularly domiciliary care, we definitely need to strengthen our arrangements for listening to service users and their families. More insight from service users. More efforts made by us. I’m very mindful during the pandemic we did not have a presence in terms of communication with the public and families and so on. We very much focused on the service providers. It’s clear to us now that we’re – where people are living independently, clearly the service users themselves and their families, loved ones, and neighbours and friends, can offer an immense amount of insight. And that’s an area we have to focus on.

Counsel Inquiry: Is that for the RQIA? Or is there scope for greater collaboration with other bodies like the – (overspeaking) –

Ms Briege Donaghy: There’s certainly greater scope for collaboration. I would say very briefly, there’s an opportunity for RQIA to, what I would say, harvest intelligence from other sources who can add to enabling us to make informed, you know, decisions around our work.

Counsel Inquiry: Then I suppose just a final question.

We’ve covered your discussion about the balance and blended inspections and how that looks, but is there any other steps that you think would need to be taken in the event of a future pandemic to ensure that the RQIA continues to provide a high level of independent assurance to both the department and to the public?

Ms Briege Donaghy: I would say – we say this word “intelligence”, data, information, whatever you want to refer to it as. To have an intelligence-based approach, you have to have intelligence. And the legislation in Northern Ireland is such that – well, I would suggest that it’s outdated and needs to be modernised.

We get a lot of information from care homes. They are required to send us enormous amounts of information around events that occur, accidents, incidents, deaths, medicines, all of those things, which is invaluable. But when you come to domiciliary care, strictly speaking the only thing that’s required to be notified to RQIA is if the police are involved. Clearly that would not be sufficient information to allow you to make intelligence-based decisions. And hence the need for us to evolve.

Our computer systems are outdated. Work with AI and all these other sorts of things that we can harvest. There’s, you know, a whole range of information from the Patient and Client Council, from the ombudsman, from the Care Opinion platform, all of these things could be potentially harvested to help inform regulatory work.

Mr Beech: Thank you very much, Ms Donaghy.

Thank you, my Lady, I’ve no further questions.

Lady Hallett: Thank you, Mr Beech.

Ms Campbell. Ms Campbell is just there.

Questions From Ms Campbell KC

Ms Campbell: Ms Donaghy, I ask questions on behalf of the Northern Ireland Covid Bereaved Families for Justice, and I’m very grateful to Mr Beech who has been comprehensive and, in fact, has touched on some of the issues. But one topic that we wish to ask you questions about is the issue of DNACPRs, and the availability of medical treatment.

And the reason we ask you about it is because Eddie Lynch, who you know is the Commissioner for Older People, notes that early in the pandemic he was receiving concerns about blanket decisions being made about the treatment and care options available to older and vulnerable people, and of particular concern he was receiving reports about older people feeling pressurised into signing DNACPRs, and to be clear, that was coming also from some care home managers. And such was the concern that on 30 March 2020, so just to put that into pandemic terms, we’re very early, if you like, at the start of the pandemic, just ten days after you had ceased inspections and so on, so 30 March, a joint statement was issued by COPNI, and by his counterparts in Wales and in Scotland and with Age NI and Age UK and others, rejecting suggestions that treatment decisions could be blanket ones, based on age alone or with a person’s age being given undue weight, together with other factors, and calling out such blanket approaches as completely unacceptable.

So my question is this: so far as you know, was the RQIA aware of that joint statement from COPNI and others at the time at the end of March 2020?

Ms Briege Donaghy: I would have to say it has not – not in my knowledge. I wasn’t aware of that statement, nor – nor in my, I would say, extensive preparations for today, was it brought to my attention. I did make some remarks in my statement about DNACPR, and on reading and listening to the testaments of others in preparation for this – for the Inquiry, I did make further investigations into it on behalf of RQIA.

I said in my statement it was not an issue raised with us very much. Now, I find that difficult to understand, given the scale of concern that I have now been made aware of.

Ms Campbell KC: Yes.

Ms Briege Donaghy: But those colleagues who were active at the time did not recall it being raised generally with them, and as a result of that, I requested our information department to electronically search all narrative records raised with us from March 2020 to the end of the following March, that was 8,500 records, and to search all of them for “DNACPR”, “resuscitation”, “DNR”, any words that might draw out the matter. I found 13 incidents, and they were across all services, including acute hospitals.

The two issues that were raised with us in care home actually had drawn out the word “resuscitate” and it was queries from care homes about the use of particular masks for resuscitation of people who were Covid positive. I am not certain why that issue is not featuring more with RQIA. I believe it should. RQIA would be well positioned, as I saw CQC did, and undertook a review of that. RQIA would have the authority to undertake that without needing direction. So now that I am aware that this is an issue, and I’m sorry, it’s late in the day, it is something I can certainly raise with the authority.

Ms Campbell KC: Well, you’ve, to some extent, answered my next series of questions but if I might just unpack that a little bit more. Firstly, you accept that these issues would ordinarily fall within the RQIA’s remit where concerns are being raised more broadly.

Ms Briege Donaghy: No, may I qualify that?

Ms Campbell KC: Yes, of course.

Ms Briege Donaghy: I’m surprised it didn’t fall to us given that we were – or raised with us given we were identified as a single point of contact at least for a period. But no, it wouldn’t be usual that medical issues would be raised with us. That wouldn’t be usual. We don’t have medical personnel as part of our inspection, you know, programme. We have a small number of doctors but psychiatrists and that sort of area where – our mental health work. So my thinking was that perhaps it was more likely to have been raised with general practice or with the trusts. So that’s where I’m thinking.

It was part of advanced care planning, as far as I’m aware of. So I’m surprised it wasn’t more raised with us, but we could undertake work in that regard. Any aspect of policy that’s important to people, communities, the Department, other stakeholders, RQIA do have the authority to examine without the need for direction. So it’s certainly something, as I say, I’m now aware of.

Ms Campbell KC: Have you found whether the issues raised, and I know you weren’t aware of the joint statement by COPNI and others at the time, but on your review of the records, have you found any indication that the RQIA was aware of that joint statement?

Ms Briege Donaghy: No, I haven’t been. And I’m surprised at that. And I had done quite a bit of research around it.

Ms Campbell KC: You have touched on the CQC report.

Ms Briege Donaghy: Yes.

Ms Campbell KC: You’re clearly familiar with it, and the Inquiry has heard some more evidence in relation to it this morning, and the CQC found – and this from the foreword to the report, the final report – a worrying picture of poor involvement, poor recordkeeping, a lack of oversight, and scrutiny of decisions being made, and without those in place, they couldn’t be assured that decisions were and are being made on an individual basis, and no doubt you heard the evidence that was given this morning.

Do RQIA records indicate that there was any review of the CQC report and its recommendations for relevance to Northern Ireland?

Ms Briege Donaghy: Not to my knowledge. And –

Ms Campbell KC: Does that surprise you?

Ms Briege Donaghy: Well, it disappoints me. It disappoints me, because we’re interested, we’re passionate, actually, about the care of people across all of the sectors we regulate, register and regulate. So it’s disappointing for me. Ordinarily, RQIA undertake study/review, make recommendations, on a body of evidence that we have accumulated ourselves. Ordinarily. But I believe in this case, having, you know, this is a national review inquiry, and if the CQC findings are replicated in Northern Ireland, it may be that there’s a need to check and test that they are still the same. But RQIA would be well placed to follow up on that.

I’m disappointed that I wasn’t aware of it earlier, but that’s likely down to my own not researching sufficiently.

Ms Campbell KC: Well, in fact in his evidence to Module 3, the former Minister of Health, Mr Swann, indicated that it was his understanding that the CQC had looked at what was happening in Northern Ireland in the course of their review, and so on – and therefore encompassed, if you like, a review of Northern Ireland. Is that the understanding of the RQIA?

Ms Briege Donaghy: Well, as I say, I am not able to comment on that because that’s – although I had read the CQC report, I must admit I hadn’t identified that they had, you know, engaged Northern Ireland, then I saw the sample that they had taken. It didn’t resonate with me that Northern Ireland was part of it. Although I did note that at least one and possibly more of the recommendations were made at a national level.

So I think I would need to check and test that that is appropriately applicable to Northern Ireland, and if so, there would be no reason, in my view, that the authority wouldn’t look to check that it is being implemented in Northern Ireland.

Ms Campbell KC: Thank you. I’ll move on, please, if I may, to deal briefly with what had been termed the withdrawal and reduction of inspections, but actually what you told us this afternoon in your evidence is effectively stopping of inspections after 20 March 2020.

Ms Briege Donaghy: Yeah.

Ms Campbell KC: We know, of course, that that didn’t happen in isolation. We know that in parallel, GP visits were largely withdrawn or reduced, social workers were denied access and, of course, families who wished to visit and care for their loved ones were shut out.

You indicated this morning, firstly that the CMO when he directed the suspension or reduction of inspections, indicated that such inspections as would be carried out should be on an evidence-led and intelligence-led or risk-assessed basis. In fact, you’ve told us that there was no methodology in place for an assessment of risk-led or intelligence-led inspections.

So the question is, where was the evidence or intelligence to come from, and how was it to be assessed in circumstances where individuals who might otherwise raise safeguarding concerns were locked out?

Ms Briege Donaghy: The development of the app that we referred to earlier, or I think we referred to earlier in the statement at least, and later the portal, once that abrupt end – and I want to be clear about it that there were inspections held during the month of April, small number, but they were to homes that were not occupied. They were estate services matters and they were not occupied, so I’m dismissing those, for want of a better word.

But as you say, the idea to move to an intelligence-led approach meant there needed to be intelligence, so very rapidly the RQIA information team developed an app that was issued out to all homes, all of the homes in Northern Ireland would be on a sort of an email call with us. We would be regularly in touch with care homes and we’d all have points of contact for them. So an app was developed by colleagues, issued out to care homes within a matter of days, and it must have been a tremendous burden – do not get me wrong – for care homes to complete that on an online basis because it was disconnected from the portal which would have had all their longstanding data in it. So we had to quickly establish a source of intelligence and, you know, there was quite a substantial amount of data required on that. It was invaluable. It was it, along with the phone calls coming in from the managers in the homes, as I said earlier, the support services team were listening and helping, but in that call, you’re also getting a tremendous amount of insight into what’s going on –

Ms Campbell KC: I don’t want to cut across you, Ms Donaghy, but of course you have lines of communication open between the RQIA and care homes. The question is more, when you don’t have others, who perhaps have a more independent eye, GPs, social workers and, of course, very importantly, family members who are either present or who have access to your app, do you accept that there was a huge amount of evidence missing –

Ms Briege Donaghy: Yes.

Ms Campbell KC: – from any assessment?

Ms Briege Donaghy: Yes, I do.

Ms Campbell KC: And there was no ability at that point in time for the RQIA to collect or weigh it into –

Ms Briege Donaghy: I agree. Very little. Families did still contact us, but in relatively small numbers, and I suspect that was because we didn’t make ourselves as visible as we should have.

Ms Campbell KC: Quite. And so against that background, can you understand why the decision to stop inspections had a very significant impact on the public confidence in the RQIA?

Ms Briege Donaghy: I absolutely can.

Ms Campbell KC: You mentioned a small number of inspections. In fact we understand there were just three inspections in April?

Ms Briege Donaghy: That’s correct.

Ms Campbell KC: – (overspeaking) –

Ms Briege Donaghy: And they were all on the 30th of the month.

Ms Campbell KC: Indeed, very end of the month, and to buildings with no occupants?

Ms Briege Donaghy: There’s – the earlier ones were earlier in the months, but they were to buildings with no occupants.

Ms Campbell KC: So how, really, could the RQIA begin to assess the ability of homes to keep their residents and patients safe in circumstances where there were no eyes and ears on the ground?

Ms Briege Donaghy: We very much relied on the reporting from care homes themselves, from managers, from trusts, from families making contact with us during that five to six-week period.

I should also say that inspections are critical. Physical inspections. I hope I’ve made that plain. But we’re not out inspecting every day, or even regularly, even in the current circumstances. We’re out once every year in all homes, and multiple times in others.

So there always has to be alternatives over and above inspection. Inspection in many ways is the pinnacle, if you like, where you get the opportunity to observe at first hand, but we do have to rely on other methodologies. You know, returns from care homes, these notifications, phone calls from whistleblowers, phone calls from PCC or from COPNI.

Since the pandemic, we’ve developed, I think, a not – a long overdue – much better relationships with the Commissioner for Older People and the PCC and so on. Those things too were not well advanced at the time of the pandemic.

Ms Campbell KC: Finally this, and it’s touching briefly on the issue of domiciliary care, and you’ve assisted with evidence on that already.

You note in your witness statement, and again you touched on it just briefly, that there was no statutory requirement for domiciliary care agencies to report Covid-19 outbreaks –

Ms Briege Donaghy: Yeah.

Ms Campbell KC: – and no legislative amendments were made to impose such a duty. And so we end up in a situation where domiciliary care agencies had the option to self-report via a voluntary app. Was that an adequate and effective means of monitoring outbreaks during the pandemic in domiciliary care?

Ms Briege Donaghy: It certainly was an improved means, because prior to that we would have had no source, bar the once-a-year inspection calls and anything the provider might have wished to draw to our attention.

So, was it adequate? It was an improved position, but it was voluntary. There was no underpinning of legislation in it. And you’ll have noticed, I’m sure, in the statement that, since then, domiciliary care agencies, or at least some, have opted to voluntarily continue to send this information on other – broader matters over and above the police being involved.

But that’s with – has its difficulties, because again, not certain it’s consistent, I’m not sure everybody does it, so therefore relying on that as a basis of intelligence wouldn’t be sufficient.

There’s much more to be done in terms of strengthening that.

Ms Campbell: Thank you.

Thank you, my Lady, those are my questions.

Lady Hallett: Thank you, Ms Campbell.

That completes the questions we have for you. Thank you very much indeed for your help, and obviously for all the work you’ve done trying to prepare to answer our questions, and we’re grateful to you. And I don’t know if any colleagues assisted you in preparing your statement, but if they did, thank you to them too.

The Witness: Thank you very much, Lady Hallett, thank you.

Lady Hallett: Very well, then. I shall return at 3.25.

(3.12 pm)

(A short break)

(3.24 pm)

Lady Hallett: Mr Beech?

Mr Beech: Yes, thank you, my Lady.

May we please call Ms Gillian Baranski.

Ms Gillian Baranski

MS GILLIAN BARANSKI (sworn).

Lady Hallett: Ms Baranski, I’m sorry you’ve had to wait until the end of the day. You are our last witness of the day. I hope it’s not been too long a wait for you.

The Witness: Thank you, my Lady.

Questions From Counsel to the Inquiry

Mr Beech: Thank you, my Lady.

Thank you, Ms Baranski. Thank you for your witness statement which is dated 28 January 2025, and I want to ask you a number of questions arising out of that.

You’re currently the chief inspector of Care Inspectorate Wales; is that correct?

Ms Gillian Baranski: I am, yes.

Counsel Inquiry: And is that a role you held during the pandemic?

Ms Gillian Baranski: I did.

Counsel Inquiry: I’m just going to start by asking you some questions about Care Inspectorate Wales and its function. And in your statement, or rather, sorry, in the 2019 Code of Practice, it’s set out that the Care Inspectorate Wales has in place:

“… robust registration processes … undertakes both routine and responsive inspections, and have a clear, progressive and proportionate enforcement pathways.”

Is that, albeit a short summary, a broad overview of the regulatory function of the care inspectorate?

Ms Gillian Baranski: Yes, it is, in connection with adult social care.

Counsel Inquiry: Thank you very much. And what purpose or why does it matter that the care inspectorate regulates adult social care?

Ms Gillian Baranski: I think it’s important that we can provide assurance to, firstly, the public, and then of course to ministers on whose behalf we exercise our function, about the quality and safety of the care that’s provided in the adult social care sector.

Counsel Inquiry: And for the purposes of this module, it’s correct that care home services, with and without nursing provision and domiciliary support services both fall within that regulatory remit?

Ms Gillian Baranski: Yes, they do.

Counsel Inquiry: And you do set out in your statement that at 31 March 2020, there were 263 adult care homes with nursing, 790 without, and some 526 domiciliary support services.

Ms Gillian Baranski: Yes, there were.

Counsel Inquiry: If we took, perhaps, 1 March 2020 as a snapshot, what, if any, concerns did the care inspectorate have about the nature or the make-up of the sector or the workforce?

Ms Gillian Baranski: I think it’s fair to say that the pandemic did not create fragility in social care, but that had existed for some time. The sector in Wales for adult social care, our care homes tend to be quite small, often family run, but with a very passionate and dedicated social care workforce. It’s clear that there were issues about demand across the social care sector. There were issues for recruitment and retention, and so, despite the best efforts of the social care workforce, there were existing underlying concerns about how social care operated.

Counsel Inquiry: And I know that at least on the part of the care inspectorate, those efforts, the best efforts, you say, of that sector and those employees is greatly appreciated and you perhaps wish to acknowledge that briefly?

Ms Gillian Baranski: I think it’s probably important if I can, to say that the period of the pandemic was an incredibly difficult time, and absolutely devastating for anyone who lost a family member or friend.

But it was also quite a privilege to witness the dedication of the social care workforce. We were humbled at times by their resilience and innovation and determination. Where we saw in the care inspectorate poor care, we took action, but there were many, many examples of really selfless, dedicated, compassionate care supported by strong management. And our relationship with providers is one of trying to work with, as well as take action where there are problems.

Counsel Inquiry: Thank you. I wish to spend some time this afternoon discussing the Care Inspectorate Wales’s inspection regimes and routines.

Ms Gillian Baranski: Yes.

Counsel Inquiry: And you do set out in your statement in quite a bit of detail about the relevant methodology and the nature –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – of those inspections. But perhaps if we could have up on screen INQ000569773, and it’s table 3 which appears at page 20, just at the very top of the page there.

You set out here, in effect, the inspection requirements in terms of time. It varies according to whether it’s a care home with adults, whether it’s got nursing support or it’s a domiciliary support service, and I also appreciate that the Code of Practice sets out that it was also informed on the basis of risk and intelligence coming in?

Ms Gillian Baranski: Yes.

Counsel Inquiry: Prior to the relevant period was the Care Inspectorate Wales successful in inspecting these services in line with these requirements?

Ms Gillian Baranski: We would do what we could within those timeframes. However, it has to be appreciated that if you did an inspection of a care home and you had concerns, you might have to do several follow-up inspections. So these were very much predicated on this was the maximum interval we would anticipate undertaking inspections, but there was always an element of, for some care homes, bearing in mind that our legislation is strengths based so we would always be trying to work with providers to improve a service, it might have needed more than one inspection, and that could distort the programme.

Counsel Inquiry: In their supplementary statement to the Inquiry, the CQC set out that the CQC recognises that on-site inspections are an integral part of the regulation. Do you agree with that and if so, why?

Ms Gillian Baranski: I think inspections are a very powerful tool in a regulatory framework. However, good regulation starts before the inspection process, which is why we have such a robust registration process. The aim of registering services is that only people who are fit and proper to do so run services, and that we’re confident that they’re able to deliver the quantity and safety of services that people deserve.

And so, inspection is a powerful tool, but it is not the only way that assurance is provided.

Counsel Inquiry: Perhaps, if we may, we’ll take a look at some of the actions now which took place in the pandemic –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – and we can explore the various tools which were used.

If I may have up on the screen INQ000497197.

This is correspondence from useful which is dated 10 March 2020. These three bullet points in the middle of the page are outlining in effect what are going to be the guiding principles going forward:

“• we will be focusing our activity where it is needed most …

“• we will support local authorities and providers …

“• we will honour our duty of care to our colleagues …”

The sentence immediately below that then states:

“We will still be carrying out inspections, but we will be reviewing inspection plans on an ongoing basis …”

So on 10 March, was the plan to continue with inspections as they had been going on? And was there any discussion at that stage about a suspension or a withdrawal of inspection activity?

Ms Gillian Baranski: As I say in my letter, we were keeping the – all the notifications and concerns we were receiving under review, but as of 10 March, the position was exactly as I wrote in that letter: that our intention at that stage was to continue carrying out inspections, but that we would keep the matter under – it was actually under a daily review at that stage.

Counsel Inquiry: We then come to 16 March –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – which I think is actually, if this letter is the Monday, the 16th is the Friday.

Ms Gillian Baranski: Yes.

Counsel Inquiry: And you made the decision to pause routine inspections.

We can see from the data in the witness statement that for the financial year 2020-2021, only 308 inspections took place –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – as opposed to over 10,000 the year before.

Ms Gillian Baranski: Not 10,000.

Counsel Inquiry: 10,502, perhaps? Maybe I’ve – forgive me.

But on what factor – so on 16 March, whenever you’re making that decision, what factors were you considering to reach that decision?

Ms Gillian Baranski: So there were a couple of key factors. One of which was on 12 February we’d had a staff member return from being in one of the affected countries abroad, and they had developed Covid symptoms and had taken a test.

While we were waiting for those test results was probably one of the most nail-biting periods because two days before we’d had that announcement, she’d been at all-staff training, and then all the inspectors from that event had gone back to offices across Wales and out to services across Wales. And that brought home very powerfully the potential impact that we could have on services.

Then on 12 March we received our first notification of suspected Covid in a care home. On 13 March we received our first notification of confirmed Covid. By 16 March we’d had 11 other notifications of Covid in care homes and domiciliary support services. And then on 16 March we had our first notification of a death from suspected or confirmed Covid.

And at that time, it seemed prudent to reflect and consider what we did going forward. We knew very little about the virus at that stage, how it was spread, and so the pause seemed sensible and prudent in response to the facts that we had as of 16 March.

Counsel Inquiry: I appreciate, as you’ve just outlined, that things were changing of an almost daily basis. You set out at paragraph 86 of your statement that the Care Inspectorate Wales did not consult with stakeholders about this decision. Was that because of the rapid nature at which things were changing?

Ms Gillian Baranski: Yes.

Counsel Inquiry: And would it have been preferable to have had the opportunity to consult?

Ms Gillian Baranski: I don’t – I didn’t consider there was the time to do it. At that stage it was a pause, so that we could regroup, we could consider how many notifications we were getting through, and I felt it was more sensible for the sector that we paused. And that was for several reasons.

Counsel Inquiry: In terms of this pause, then –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – what, if any, consideration was given in that decision-making process to inspections continuing but with IPC and testing and masks? Was – that option for testing and PPE, was that an option available to you?

Ms Gillian Baranski: So there were two main factors that caused me to make that decision. The first of which was the thought of our inspectors taking Covid into a care home, of which we were the regulators, and we know how vulnerable many of the people who live in our care homes are. That just seemed unacceptable.

The other main reason was it was an incredibly fast-moving situation with very little knowledge of what was happening, and so it received appropriate to enable local authorities and to providers to give them the space and the opportunity to concentrate on looking after people in their care, rather than worrying about a potential inspection.

Counsel Inquiry: So if I’m understanding you correctly then, the availability or otherwise of testing and PPE wasn’t a primary factor in that decision, it was more trying to control the spread which could potentially be coming from inspectors?

Ms Gillian Baranski: And at that stage I think we were at the – a different phase in the coronavirus. But, of course, we didn’t have testing, and we didn’t have PPE in March. The inspectorate.

Counsel Inquiry: You set out, then, in correspondence that a key priority is to continue to provide assurance to the public and the minister regarding the safety of services.

Ms Gillian Baranski: Yes.

Counsel Inquiry: And I’d just like to explore some of the means by which you sought to do that while this pause was in place.

Ms Gillian Baranski: Yes.

Counsel Inquiry: You set out in paragraphs 88 to 89 of your statement that you, “wrote to the local authorities asking them to share information with us in a timely way on any service you have concerns about to enable us to assist with contingency planning.”

Why was that correspondence necessary? Is it not self-evident that all these bodies should be communicating in particular communicating with the independent regulator if there is concerns?

Ms Gillian Baranski: But it’s also about providing assurance that people understand the framework within which we’re operating. Sharing of concerns is nothing new but during a time of extreme pressure in the social care sector when providers were concerned, the public was concerned, it felt really important that we were very clear what we would be doing to provide assurance.

Counsel Inquiry: And you then go on at paragraph 90, and I wonder if we could perhaps get this on the screen, please, it’s at INQ000569773:

“During the latter part of March 2020, although no will inspections were undertaken, inspectors continued to monitor and follow up on: notifications … concerns or safeguarding incidents … and services already on the enforcement pathway”.

Was the Care Inspectorate Wales already doing these things prior to the pandemic?

Ms Gillian Baranski: Yes, every notification that comes in to the Inspectorate and every concern that comes in to the Inspectorate is looked at by an inspector and reviewed, and decisions made as to whether and what action we would take.

Counsel Inquiry: So what, if any, enhanced oversight measures were introduced once inspections had been paused, that the – Care Inspectorate Wales was undertaking in order to ensure that there was oversight of the sector?

Ms Gillian Baranski: So although inspections were paused we intensified our scrutiny and monitoring of services, initially with a series of check-in calls, and we did approximately 11,000 of those from the end of March into August. And they were done for several reasons. One of the first reasons was to provide support to providers. It enabled us to provide a live voice as to what it was actually like in the services we regulated and inspect.

There were occasions when we could provide guidance to help or we could ask others to provide guidance to help, but we could also raise issues, both within government and with others, of specific issues that we felt carehome providers and domiciliary support providers needed reassurance and support with. Those later moved on to monitoring calls – I’m sorry.

Counsel Inquiry: No, please forgive me. I spoke over you.

I was just going to simply say, those calls were introduced on 30 March 2020?

Ms Gillian Baranski: Yes.

Counsel Inquiry: And you emphasise in your statement that:

“The purpose of these calls was to ‘check in’ with providers –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – rather than ‘check up’ on them.”

Ms Gillian Baranski: Yes.

Counsel Inquiry: I just wonder, what’s the significance of the distinction there, and could the calls not have done both?

Ms Gillian Baranski: If you think, on 23 March, we went into a lockdown, and a care home in particular is someone’s home. Pre- and post-pandemic they were vibrant environments, people would be popping in and out, and – chiropodists, there were various functions, and then on 23 March none of that could happen, and so providers went from operating in that field to a field where not only were they responsible for the daily physical care of an individual but there was limited visiting, limited access, and so keeping the people who lived there engaged, stimulated, is an equally important part of looking after people who live in residential care.

And so at that stage, it seemed more important that we should be checking in and providing support, rather than our normal regulatory oversight. When providers are having to send staff to queue for bread, and the issues that were faced by the sector in those very early days, it seemed far more proportionate and flexible to be providing support rather than anything else.

However, if things had come to light, we may have taken a different view. But at that stage, with the state of the environment in which they operated, that seemed prudent and sensible and supportive because our focus is always on the people who receive and work in these services.

Counsel Inquiry: I hate to labour the point, and you’ve already said that these calls didn’t necessarily correspond with your normal regulatory oversight, did these calls perform any regulatory function or did they perform a different, more supportive function?

Ms Gillian Baranski: I think at that stage they were very much a supportive function. This was the early days of the pandemic. There was little known, little treatment, and for some care homes, it was incredibly stressful.

Counsel Inquiry: And in the absence of physical inspections, on-site inspections, were these calls in any way a substitute or alternative for the assurance that those on-site inspections could provide?

Ms Gillian Baranski: They were different. And in a sense, the regulatory work we have always done is very much a partnership. Within social care, we have different roles and functions, but providers of social care are as committed as we are to ensuring that they provide the best possible care to their services. And the thought of we’re not crossing a threshold means that that wouldn’t happen I don’t think is an accurate reading of how care providers operate.

Counsel Inquiry: The Care Inspectorate Wales did produce a feedback report in September 2020 –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – of the nature of these calls and what was discovered. In that you flag that there were significant issues with PPE, for example –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – in the first number of months of the pandemic. What specific action did Care Inspectorate Wales, apart from dealing with the provider on the phone, on the call – was there a role for Care Inspectorate Wales here to raise these matters for the likes of the Welsh Government, the Public Health Wales, to ensure that any trends regarding PPE or other issues were appropriately flagged and could be addressed?

Ms Gillian Baranski: Yes, and we did that on a regular basis. We would message Welsh Government officials, we would message Public Health Wales. We would talk to local authorities. We saw that as part of the support that we could offer, is using the themes that emerged from these calls to try to ensure action took place.

And you’ll see from the September report that as May, June develop, the concerns around PPE are dramatically reduced, as these issues were addressed.

Counsel Inquiry: Moving perhaps on to a different tool, then. You talk in your statement about how a pre-existing internal RAG – red, amber, green – system was repurposed –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – in order to provide a rating for the pandemic preparedness, or nature of each service. And you say at paragraph 100:

“Based on this intelligence, inspectors made an assessment of the impact of Covid-19 at the service and the likelihood it would continue to impact on the service.”

You then go on to say:

“Where this assessment indicated emerging or immediate risk to life or significant harm or neglect to people living at the service, the service was subject to increased levels of monitoring. This included frequent calls …”

And then, through that, ultimately to the prospect of an inspection.

The risk or immediate risk of life or significant harm, was that too high a threshold in a scenario where there’s no eyes and ears on the ground in the form of inspectors to trigger some type of oversight process?

Ms Gillian Baranski: So these are services that we are familiar with. These are services that we have registered. These are services that we had a relationship with. These are services that we would know of any pre-existing situations that would give us cause for alarm, have a highly experienced inspectorate team who would be familiar with assessing information as it came in and making decisions about action that needs to be taken. And so, in all those circumstances, then I think that that was appropriate.

Counsel Inquiry: Okay, thank you for that. And if I may move on then to a change in approach which occurred on 31 July –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – whenever the Care Inspectorate Wales moved to a recovery approach. And you said, with more inspections based on risk unsupported by having PPE and testing – and just so we’re abundantly clear, when did inspectors have available sufficient PPE and testing to enable more inspections?

Ms Gillian Baranski: In June 2020. But community transmission was still quite high at that stage and – we thought we were in recovery phase, which is why we made the decisions we did. And then, of course, as you’ll be aware, we moved into a very different position as autumn emerged.

Counsel Inquiry: If I could just keep in this kind of late summer type period for now then.

Ms Gillian Baranski: Yes.

Counsel Inquiry: You go on at paragraph 108 to state that, in August 2020, Care Inspectorate Wales did not believe that it could return to full routine inspections.

You justify this as saying that providers were under significant pressure and Care Inspectorate Wales did not wish to unnecessarily add to this with regulatory burden.

Obviously there’s a public interest in regulation being performed at that stage –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – where there appears to have been ample testing and PPE, and also an impact on visiting and external oversight for a number of months. Would that not have been a more appropriate time to return to more routine inspections?

Ms Gillian Baranski: At that stage we were still very focused on services that we had the most concerns about. And I think there’s a huge public interest in making sure that providers are able to concentrate on looking after people in their care. That March-July period in care homes and domiciliary support was an incredibly difficult period. And so our view was, knowing our providers as we do, and working with them, that to have returned to a routine inspection programme at that stage wasn’t appropriate. But we did start to do inspections, but very much based on risk at that stage.

Counsel Inquiry: I do wish to reiterate at this juncture that the Inquiry is well aware of the pressures on the sector during that period of time, and I’d hope my questions aren’t interpreted as anything other than that.

Also then in August 2020, the Care Inspectorate Wales replaced check-in calls with monitoring calls. Could you just then explain the distinction between check-in and monitoring.

Ms Gillian Baranski: Yes.

Counsel Inquiry: And is this a shift more, then, to a regulatory aspect to these calls?

Ms Gillian Baranski: Yes, at this stage, the first wave of Covid was over. We hoped we were moving into a slightly different time. And so monitoring calls were much more an exercise more of our regulatory functions again. We still talked about PPE and issues of concern, but we would also ask questions about the quality of care reviews, what training was going on, how families were being supported to contact their – how residents were being supported to contact their families.

And so it was much more – we had a checklist of questions that our inspectors would go through which were more akin to normal regulatory activity.

And we did about 2,500 of those. Those calls were done on a monthly basis.

Counsel Inquiry: And just –

Ms Gillian Baranski: As opposed to the weekly, fortnightly of the check-in calls.

Counsel Inquiry: Thank you very much. If I could just, perhaps, pause at this moment to reflect on the check-in and monitoring calls, okay. I’d like to give you a chance to comment on the witness statement from a former care home manager from Wales who has given evidence to the Inquiry, and it appears at INQ000587639, and specifically at paragraph 62. It says:

“[Care Inspectorate Wales] sent a letter on 16 March 2020 … saying they would not do any inspections because of Covid, but I had weekly calls with them. They wanted to see how we were coping and asking if we were giving people activities! They did little to assist.”

I’d just like to give you the opportunity to comment on that. You’ve indicated these calls are designed to offer support and be supportive, but it would appear to be this individual’s experience, anyway, that that wasn’t the case. Is that a general reflection or reflective of a wider opinion?

Ms Gillian Baranski: I was very, very sorry when we heard in May of 2020 of the death of Mr Hough. Mr and Mrs Hough were very passionate about their service, and they were especially passionate about protecting their residents from Covid. I’m sorry that she didn’t find our support of help, but many, many providers told us that they did find how we approached our check-in calls to be very helpful.

Counsel Inquiry: I think, and I accept that I’ve taken you to this statement, I was perhaps making the more general point of, was this feedback which the care inspectorate was receiving that ultimately these calls did little to assist?

Ms Gillian Baranski: No, no. On our national advisory board, which is made up of the Older People’s Commissioner and various others, it is also we have providers of service and service users on that, and the feedback that we were getting from the calls in particular was that many people found our check-in calls to be of benefit. And I’m just very sorry in this instance that it didn’t secure that for Mrs Hough, and I’m very sorry for that.

Counsel Inquiry: And in the event of a future pandemic, would the Care Inspectorate Wales adopt a similar approach, ie starting with these check-in calls and then moving to perhaps a more regulatory-focused monitoring call?

Ms Gillian Baranski: I think it would depend on the nature of the pandemic and how much we knew. In the circumstances of what we were faced with and our providers were faced with in this March, spring and summer of 2020, I think this provided scrutiny and clarity. In a future pandemic it would depend about what was known about transmission as to whether we would repeat this or do something different.

Counsel Inquiry: Forgive me, perhaps, for jumping on but we don’t have a huge amount of time allowed. In November 2020, the Care Inspectorate Wales indicated that inspections would continue, and ultimately on 4 August 2021 it returned to perhaps a more structured routine approach; is that correct?

Ms Gillian Baranski: Yes.

Counsel Inquiry: Perhaps if we could have up on screen INQ000569773, page 41, which is table 5 from your witness statement. And while that’s loading, earlier on I indicated there’d been some 10,000 inspections. It’s, of course, 1,052, so please forgive me, that was my error and I wish to correct the Inquiry record on that.

If we look at the bottom line, then, 1,052 inspections in March, by March 2020. Dropping to 308. But then by the end of 2023 we’re back to pre-pandemic, if not slightly higher than pre-pandemic levels.

Ms Gillian Baranski: Yes.

Counsel Inquiry: That perhaps differs perhaps from approaches taken by other regulators such as the CQC and RQIA, where they’d never, perhaps, have returned to pre-pandemic levels of inspection. Why was that approach taken in Wales?

Ms Gillian Baranski: I can’t comment on why other inspectors made the decisions that they did. Are you asking why we increased the number of inspections?

Counsel Inquiry: You’ve returned to what appear to be routine inspections of similar levels pre-pandemic?

Ms Gillian Baranski: Yes.

Counsel Inquiry: I’m not asking you to explain RQIA or CQC’s position, but why was it important to Care Inspectorate Wales that there was return to what appeared to be routine inspections?

Ms Gillian Baranski: We made the decision, as soon as the position was clearer with Covid and the pandemic, that we would return to our routine inspection programme and what these figures show is that we did return to our routine inspection programme. And in ‘23 we were preparing for changes to our framework as well as. And so this is what we said we would do, and we did it.

Counsel Inquiry: Just before, perhaps, we move off the topic of inspections, I would like to give you the opportunity to reflect. In terms of the risk posed by a solitary inspector attending a care home in March 2020, would it not have been reasonable in light of everything else that is going on for a single inspector to attend at a home to carry out an inspection to ensure that oversight was in place?

Ms Gillian Baranski: A single inspector could have taken Covid into a care home and for us in Care Inspectorate Wales, the risk of that as the regulator was unacceptable at that stage. We put in place robust monitoring, regular contact with providers, so we could continue to assure the public and ministers that their services and the people they loved were safe and being well looked after.

Counsel Inquiry: If I could just invite you, then, to comment on the CQC’s addendum statement. They state:

“… in the event of a future pandemic, strenuous efforts should be made to protect the ability to carry out on-site inspections as much as is practically possible.

“On site inspections, together with other forms of regulatory activity, play a vital role in assuring the safety and quality of services for the adult social care sector. But it should be recognised that on-site inspections cannot safely take place in a pandemic if they increase risk to those in care …”

Do you agree that, in the event of a future pandemic, strenuous efforts should be made to ensure that on-site inspections continue?

Ms Gillian Baranski: I think it would depend very much on what the nature of the future pandemic was, and what the risk to people living in those care homes were.

If you’re asking me whether I thought I made the right decision in March about pausing inspections, I would do the same again, because at the forefront of my thinking was: how can we best protect people with very complex care needs at a time when there was little treatment and very little known? And it would depend what the nature of another pandemic was.

Counsel Inquiry: I appreciate it’s very difficult to speculate on what any future pandemic would look like, but is there anything practically which could be done in order to ensure that on-site inspections could be protected going forward in the event of a health crisis?

Ms Gillian Baranski: I think as I’ve said previously, inspections are an incredibly valuable tool, but they are not the only means of providing assurance. And I think that interface we had with commissioners of services, the notifications we received – and concerns, notifications, increased by 24% in 2021. I was concerned that without the regular input of families and relatives visiting, that we might see a drop-off in that. But we messaged the staff of providers across and said, “It’s your duty to speak up.”

And so the intelligence we were getting during the pandemic was such that we had a line of sight into how care homes were operating through that period, and domiciliary support services.

Counsel Inquiry: Before we leave the topic of inspections, I’m going to ask you about Care Inspectorate Wales’s availability to carry out virtual inspections?

Ms Gillian Baranski: Yes.

Counsel Inquiry: You do indicate in your pandemic (sic) that, in practice, virtual inspection visits only accounted for 8%, or 66 –

Ms Gillian Baranski: Yes.

Counsel Inquiry: So there was – the Care Inspectorate Wales did have the ability to carry out virtual inspections?

Ms Gillian Baranski: Yes.

Counsel Inquiry: And just to be clear, we’re talking about virtual inspections of residential nursing homes.

Ms Gillian Baranski: Yes.

Counsel Inquiry: Why did it only account for 8%? What, if any, difficulties or issues prevented that being rolled out further?

Ms Gillian Baranski: So during the period of the pause we did 808 inspections, and 786 of those were physical and 80% were virtual.

Virtual inspections were actually very successful in our inspections of children’s care homes, because they loved taking the iPad round the home, treating it almost as a TikTok video, and they were a very rich source of information.

It is very different in the adult care home sector, where, although equipment was provided by Welsh Government, by local authorities, there’s not the familiarity with the technology and the kit as existed for the children, who loved it. And so the view we took was: we tried it; for children’s care homes, brilliant; not necessarily as successful in adult care homes.

Counsel Inquiry: Again, forgive me, I’m going to ask you to speculate perhaps, but in the event of a future pandemic, would there be greater scope for the use of virtual inspection technology? Could it play a greater role?

Ms Gillian Baranski: For children’s care homes, absolutely. I am not convinced for adult care homes and domiciliary support services, no.

Counsel Inquiry: And you consider that there’s a need for – that it would be of assistance to have clear adaptable protocols for remote, hybrid, virtual and in-person inspections which could be reviewed regularly in order to make sure they’re still valid and in line with data requirements, et cetera? Would a clear process like that have assisted in any way whenever it came to March 2020?

Ms Gillian Baranski: I think the situation in March ‘20 was so unprecedented that the plans that there were in place, I don’t think took account of a virus of which so little was known, and which, until we got the vaccines in December of 2020, there was no really effective treatment with – certainly with the first two phases of the virus.

So we have our own frameworks, which are regularly adapted and regularly looked at; I’m not sure how some of those would be produced in a way that’s meaningful.

Counsel Inquiry: Thank you. If we could move on to briefly cover the issue of the discharge policy and perhaps some of the issues which Care Inspectorate Wales were raising with that –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – in April 2020. You were asked – or the Care Inspectorate Wales was asked to comment on a draft of the Admission and Care of Residents during COVID-19 Incident in a Residential Care Setting in Wales, and if I could please have up on the screen INQ000396527. This is a Ms Rooney, who is Deputy Chief Inspector, responding.

Ms Gillian Baranski: Yes.

Counsel Inquiry: Perhaps if we could look at the second paragraph in the final sentence:

“The thing that is likely to jump out for them [I think that’s providers you’re referring to] is the message around accepting patients from hospital[s] including those that may have COVID-19.”

And then the final paragraph talks about it being tricky to align two messages, one about the need for residents to shield and one where care home providers are being encouraged to accept patients with Covid-19 into a home where many other high-risk people live and there may be no existing Covid.

Ms Gillian Baranski: Yes.

Counsel Inquiry: To the extent that it’s not obvious, what exactly was the Care Inspectorate Wales’s concern at that time?

Ms Gillian Baranski: We were pleased to have the opportunity to comment on the guidance that the government was thinking to issue. Our concern was, in the general population, we were saying to people with vulnerable health issues: you need to shield. Our other concern was, is that at that stage very few care homes in Wales had notified us of a Covid outbreak, and therefore – we’re not medics, but it didn’t seem prudent or sensible to discharge people into a care home either who were untested or who had been, or were known to have Covid-19.

Counsel Inquiry: If I may take you to a further email, then, which appears at INQ000198569, please, page 2 of that chain. In the very bottom the email is again from Ms Rooney.

Ms Gillian Baranski: Yes.

Counsel Inquiry: “Hi all …”

This is an email to Public Health Wales and the Welsh Government.

“… I am sorry, we would not be happy to brand this as [Care Inspectorate Wales] as it currently stands.”

She states:

“The majority of the content of the guidance is exceptionally useful … However, we are concerned about the section on discharge …”

First of all, would it normally be the case that Care Inspectorate Wales’s branding would appear on guidance produced primarily by the Welsh Government and Public Health Wales?

Ms Gillian Baranski: Only if we were asked to.

Counsel Inquiry: And having been asked in this instance, you go back and say or Ms Rooney goes back and says, “We’re not happy to brand this as Care Inspectorate Wales” –

Ms Gillian Baranski: Yes.

Counsel Inquiry: – what, in effect, was Ms Rooney saying? On one view, branding could seem like a relatively trivial issue but is she saying, “We can’t stand over this”?

Ms Gillian Baranski: Well, it may sound a trivial issue, but not to the sector because what it meant is it gave us freedom to remind providers of regulation 14, which could have been suspended by Welsh Government, but wasn’t. And regulation 14 says that when a provider agrees to look after someone, they have to be satisfied they can not just meet the needs of that person, but they have to take account of the impact of that person on the rest of the residents in their home. And so frequently asked questions, guidance, which we first published on 1 April was very clear that providers should only accept people into their care homes where they could have account of whether it was possible to safely look after them without an adverse impact on others, because our view was you could safely look after an individual, but the nature of care homes and particularly people with dementia who will often wander around a care home, how you could keep people safe in those circumstances was very difficult.

Counsel Inquiry: And in later correspondence, Ms Rooney almost proposes that the solution to this problem as a whole might be for further testing – testing. She makes the suggestion on 8 April:

“I also think if people being discharged from hospital to a care home were tested, this would substantially increase the number of providers willing to accept …”

Ms Gillian Baranski: Yes.

Counsel Inquiry: And she says:

“I understand testing capacity is a challenge.”

So was testing the answer to Care Inspectorate Wales’s concerns?

Ms Gillian Baranski: As I said, we weren’t medics, and we didn’t have to make some of those impossible balancing judgements. We were aware that there was a significant concern as to the functioning of the NHS and the prospect that it would be overrun and therefore the population across Wales would be in difficulty. But we didn’t have to make those balancing judgements, as the social care regulator, what we were concerned about was social care services and people who used them.

And so for us, with the information we were getting from providers and what they were telling us about what was happening, it seemed sensible that before anyone went into a care home and particularly was discharged from the hospital, they should be tested.

Now, at that stage, I know there weren’t that many tests available, and the average local authority had 15 tests a day to use, but that seemed a sensible position for the Care Inspectorate to take.

Counsel Inquiry: Were you aware if the issues being raised by the Care Inspectorate Wales were addressed in the final version of the guidance, which I understood was issued on 9 April? Were those issues –

Ms Gillian Baranski: Do you mean the final guidance on 7 May or the first guidance on 9 April?

Counsel Inquiry: This, the first guidance, forgive me.

Ms Gillian Baranski: They weren’t addressed.

Counsel Inquiry: How long did it take for those issues to be addressed, ultimately?

Ms Gillian Baranski: The guidance – a letter was sent out to all providers on 22 April, and local authorities, saying the position on testing had changed and that people would be tested.

That guidance wasn’t actually disseminated until 7 May, but the letter on 22 April was very clear that the Welsh position had changed.

Counsel Inquiry: The letter then is roughly some two weeks after care inspectorate started raising concerns, and the final version of the guidance then would be over a month later. What do you consider the impact of that delay to have been on the adult social care sector?

Ms Gillian Baranski: I don’t know how many people were discharged from hospitals into care homes at that time. And it’s difficult now, without that information, to tell.

I mean, clearly, from a reassurance point of view, providers, they were very keen for people to be tested before they went into care homes. And many were very robust about saying, “We will not accept people without a test”, and we supported them in those decisions.

Counsel Inquiry: Your statement very helpfully includes a list of proposed recommendations or issues you’d like the Inquiry to consider, and one of which is the importance of coordinated communication for successful hospital discharge, recognising family members and providers are partners in care for many people.

Ms Gillian Baranski: Yes.

Counsel Inquiry: I just would like to ask you, how would that recommendation help resolve the type of issues that we’ve encountered here in these emails?

Ms Gillian Baranski: In the co-ordinated dissemination of information.

Providers and others were telling us that one of the issues they faced is the amount of guidance that was coming through, very fast changing – if you think with our visiting guidance we issued 14 iterations of that, reflecting the state of Covid across Wales.

And it was very hard to assimilate some of that guidance.

And it seemed, in future, one version of the truth, one way of disseminating, so that people get – the right people get the right guidance at the right time, I think would be a tremendous reduction in duplication, and an opportunity for people to say, “Well, guidance 32, that’s what we’re following now.”

Counsel Inquiry: If may just briefly touch on the issue of visiting and the Care Inspectorate Wales’s role with regards to that. At paragraph 253 of your statement you outlined that:

“The Care Inspectorate Wales facilitated a stakeholder groups to inform the development of this non-statutory guidance.”

Ms Gillian Baranski: Yes.

Counsel Inquiry: The group first met on 1 June?

Ms Gillian Baranski: Yes.

Counsel Inquiry: So that stakeholder group, who was included in stakeholder group?

Ms Gillian Baranski: So the Older People’s Commissioner, Children’s Commissioner, Welsh Local Government Association, the Association of Directors of Social Services Wales, the voluntary council Wales, Care Forum Wales, housing department, and facilitated by us and Welsh Government. It was – I’m sure many people have said this, one of the most emotive decisions of the pandemic were issues around visiting, and the impact, not just on residents but on family and friends who couldn’t see their loved ones, was really difficult.

And so it seemed helpful to bring everyone involved to discuss how we could safely facilitate visiting, and so our view was that what happened in care homes should exactly mirror what happened for the public. So if the public couldn’t meet inside, we understood that would be the same in care homes. If the public could meet outside, that should be the same for care homes.

And so the work of this group was to – through a very difficult period, because the second winter was particularly difficult, and we helped facilitate the development of the pods and access for providers to get those, to make sure that people could see people as safely as possible.

Counsel Inquiry: If I may just reverse ever so slightly, just to paragraph 256 of your statement, you said:

“Care Inspectorate Wales ensured stakeholders on the group included representatives of people with a learning disability, so their specific needs were recognised in the guidance.”

Is that correct?

Ms Gillian Baranski: Yes.

Counsel Inquiry: And in what way were their specific needs recognised in the guidance?

Ms Gillian Baranski: Because their voices would be part of that stakeholder group.

It was so emotive that to have people there representing all the people impacted, because there were instances of people with learning difficulties who weren’t able to access some of their work functions, and it just seemed: here’s a forum where we can get together and see if, by working across groups, we could come up with a solution that enabled visiting to take place as safely as possible.

Counsel Inquiry: You state then that the key objective of the guidance was to ensure the balancing to the rights and responsibilities in relation to people, visitors and staff. On reflection, do you think the guidance, which I understand was published on 23 June, achieved that?

Ms Gillian Baranski: That was the first version, and then there were 13 other versions that came after that. And so I think it did – and part of what we did as well was we ran seminars on the risk assessment and also seminars to make sure people understood what the guidance was saying. Because this was one of the issues that was constantly raised.

A lot of the concerns that came to us towards the end of 2021 were, understandably, about family members. That – there were instances, even when visiting was permitted, some areas would not be following the Welsh Government and the Public Health Wales guidance. And so we were able to intervene, both by flagging those issues to government and Public Health Wales, but also directly dealing with the providers to remind them of their regulatory responsibilities in connection with visiting.

Counsel Inquiry: Before turning to slightly further discussion about what recommendations you think might be useful, I just want to talk to you very briefly about two discrete issues you raise about data, about the sharing of information.

Ms Gillian Baranski: Yes.

Counsel Inquiry: So if I may, please, have INQ000569773 and page 58. It should be paragraph 175 of your statement.

At paragraph (d) therein you talk about the sharing of information and engagement with Public Health Wales and ONS. You say:

“However, it was clear there were different definitions of what constitutes a care home.”

What impact did that have on the ability to validate data and has that been resolved? Is everyone now using the same definition of what is or is not a care home?

Ms Gillian Baranski: So we worked very closely with Welsh Government’s knowledge and analytical support services, and the Chief Statistician to make sure that our data lined up. We used the legal definition, as in the Social Services and Well-being (Wales) Act, of a care home, which is as stated there. Public Health Wales and ONS categorised other care settings, so supported live-in accommodation, so it might have distorted the figures, because there were many more supported live-in facilities in Wales.

The reason we worked with them is so the differences could be understood and explained, and in the briefings that were being produced by the group, it was made very clear what the data was, and what the data was saying.

Counsel Inquiry: Then if I may move down to paragraph (e), you say that Care Inspectorate Wales was unable to provide data on the number of staff working in social care services.

Ms Gillian Baranski: Yes.

Counsel Inquiry: The Inquiry has heard some evidence in recent days. I’m just wondering if I could take your view on it. Is there a need for a register of social care workers to be maintained?

Ms Gillian Baranski: So we’re the regulator of services. Our colleagues in Social Care Wales are the regulators of the workforce. And there is a registration process, but that isn’t ours, and so we don’t collect that data at the moment.

Counsel Inquiry: And was the issue here, then, that the Care Inspectorate Wales wasn’t the appropriate person to ask for that information? It would have been somebody else?

Ms Gillian Baranski: It wasn’t us.

Counsel Inquiry: Thank you. And then just coming on and returning back to a section of your witness statement which I referred to earlier entitled “Key Lessons Learned and Reflections” and at paragraph (g) you state that:

“The interdependence – this is your recommendations – The interdependence of the health and social care sector recognising providers of social care services should be treated as equal partners in care and people working in the social care sector should have parity of esteem and terms and conditions …”

I suppose my first question is: what impact did this have on the management of the pandemic in the adult social care sector during the pandemic?

Ms Gillian Baranski: I think it’s a few things. So health and social care services have got to be seen as interdependent and not senior service and junior service. And at times in the pandemic, there was a much wider public recognition of the value and importance of social care. But going forward, that needs to be addressed, and part of the problem is that everyone appreciates how terrific our health services are and what a privilege it is to have them, because we’ve all used them. But until it’s your dad or your gran or your child that needs support, social care operates very much under the radar.

And social care workers, the workforce demonstrated, during the pandemic, the extraordinary support that they provide, and giving them parity of esteem, giving them parity of terms and conditions would help with recruitment and retention and it would help with that phrase you use is “I’m only a social care worker”, or “This is only unskilled work”, whereas it clearly isn’t, and if we want to attract people to see social care work for the rewarding career opportunity it is, parity of esteem, terms and conditions would help enormously with that.

Counsel Inquiry: Just finally then, and returning to Care Inspectorate Wales’s regulatory role, what could be done in the event of a future pandemic to ensure that the Care Inspectorate Wales continues to provide the necessary assurance both to the Welsh Government and, of course, to the public?

Ms Gillian Baranski: So our framework has changed, as you can imagine, since these days. In 2023, April, we began a programme of silent ratings, which we did for tow years working with the sector to co-produce the descriptors, and I think what was particularly encouraging is in ‘23/’24, 74% of the ratings awarded for the sector was good and excellent. So having gone through all of this, to come out at the other end, and so the frameworks we have now, I think, enable us to provide assurance in a very clear way to the public and our Welsh Government ministers about how good care is.

Mr Beech: Thank you, Ms Baranski. I have no further questions.

My Lady, thank you.

Lady Hallett: Thank you, Mr Beech.

Mr Stanton is next and he’s over there.

Questions From Mr Stanton

Mr Stanton: Thank you, my Lady.

Good afternoon, Ms Baranski. I ask questions on behalf of the Covid-19 Bereaved Families for Justice Cymru. I have a question for you in relation to routine testing.

At paragraph 178 of your statement there is reference to an email of your deputy, Margaret Rooney, of whom we’ve heard already. Ms Rooney sent an email dated to 24 April 2020 to the Welsh Government. The reference for that email is INQ000396515, but we don’t need to go to it.

Within the email, Ms Rooney makes a recommendation to the Welsh Government that all staff and residents in care homes should be regularly tested, whether symptomatic or not. It then took some considerable time before the Welsh Government moved to this position, and it wasn’t until 15 June, as I think you probably know, that regular testing of staff was introduced on a weekly basis.

Can I ask, what action, in addition to Ms Rooney’s email calling for testing, did you take to press the Welsh Government to introduce earlier routine testing?

Ms Gillian Baranski: As I’ve said earlier, we were very conscious of the availability of tests in Wales at that time. But our view was that testing should be facilitated. So, as from 16 May, testing was extended to include all symptomatic and asymptomatic care home residents and staff. It’s the weekly testing that didn’t come in until 15 June, but the testing began from 16 May, and we had regular conversations with the Chief Medical Officer’s office, the Chief Nursing Officer’s office, and, as I understand it, Welsh was working towards it during that time. They were very aware of what our position was on testing in care homes.

Mr Stanton: You’ve indicated they were very aware of your position. Were you making more regular submissions and representations beyond that referred to of Ms Rooney?

Ms Gillian Baranski: We were in constant discussion with Welsh Government policy officials and the Office of the Chief Nursing Officer and the Chief Medical Officer during that period.

Mr Stanton: Is it fair to say you think the Welsh Government should have moved sooner on this issue?

Ms Gillian Baranski: As I said earlier, we were in the unenviable position that we could focus simply on social care. We’re not medics. And therefore, as I’m aware, Welsh Government was following the advice of medical officials, of which we were not one of them. So it’s hard to say at what stage they could have moved faster. Those would be questions for Welsh Government and not Care Inspectorate Wales.

Mr Stanton: Yes. Was that the response provided to you by the Welsh Government: that they were following scientific and medical advice?

Ms Gillian Baranski: The responses that we had formally are in my exhibits, through the system, but it was clear from – everything we were told is that they were receiving advice and they were following that advice.

These issues were being taken very seriously. The meetings I would have regularly, which were daily at one point, was with the Deputy Minister for Health and Social Care. And she was very concerned about testing, about the outbreaks of Covid, about the number of deaths in care homes. And so she was regularly advised of those things.

Mr Stanton: Thank you.

Can I very briefly take you to one more topic, that is notifications of deaths made to you by care homes during the pandemic.

Ms Gillian Baranski: Yes.

Mr Stanton: If I could have up on screen, please, INQ000198645.

Ms Baranski, this is a section of a spreadsheet containing notifications of deaths in care homes. You’ll see within the spreadsheet at rows 7 to 8, the peak of the pandemic is captured.

Ms Gillian Baranski: Yes.

Mr Stanton: And in column F you can see there the total number in April of 1,231.

Just in passing, alongside that figure is the suspected or confirmed – and confirmed, I’m sorry – Covid-19-related deaths, at just around 350. Is it fair to say that’s a significant underestimate?

Ms Gillian Baranski: I mean, all I can say is that from our notifications which came from providers in the period we’re talking about, from 1 March to 29 June, we had 2,205 notifications of deaths of care home residents. That was 14% or 13.9% of all reported deaths. And 1,668 of those were confirmed Covid, and 537 were suspected. But of course, in the early stages, there wasn’t the amount of testing that there was, for example, in January 2021, when we had another peak.

Mr Stanton: Yes.

Can I ask you about the second wave or the second peak. You’ll see at rows 13 to 16 the numbers start to increase through October, November, December.

Can I ask, having gone through the awful experience of the first wave, once you started to see the numbers rising in this way, what specific actions did you take to seek to avoid a repeat?

Ms Gillian Baranski: All we could do as the regulator of social care, is share the information, and we were privileged to be part of lots of working groups. And our role on those working groups was very much to say: this is our data, this is what we’re seeing, and to provide a deep understanding of what was happening in social care at that stage.

The levers to address some of this were not within the gift of Care Inspectorate Wales. What happened with us in December ‘20, because other things were different, we continued inspecting, we continued providing information and we continued the oversight, but it was very difficult to watch the January ‘21 wave. And what became clear is that until we had the vaccines, and the first person was vaccinated in Wales on 8 December 2020, and until lateral flow tests were regularly available, it seemed sometimes that the epidemic was almost unstoppable.

Mr Stanton: Thank you, Ms Baranski.

Thank you, my Lady.

Lady Hallett: Thank you, Mr Stanton.

Ms Beattie. Ms Beattie is over there.

Questions From Ms Beattie

Ms Beattie: Good afternoon, I ask questions on behalf of I ask questions on behalf of Disabled People’s Organisations.

On 6 April, in an email, for the reference it’s INQ000500163, you highlighted in an email to senior Welsh Government officials, including the Chief Medical Officer, Chief Nursing Officer and chief executive of NHS Wales that DNACPR was an issue needing urgent consideration, and you asked, “How confident are we that residents and their families understand the implications of a DNACPR?”

And then moving forward to your annual report of 2020/2021, in that report the chief inspectorate said, “We saw examples of blanket decisions being made in relation to DNACPR.”

So going back to that email of 6 April 2020, what steps did the Inspectorate take to ensure from then onwards that residents and their families did understand the implications of a DNACPR?

Ms Gillian Baranski: So Care Inspectorate Wales is not the regulator of healthcare in Wales. We’re not like CQC. We’re the regulator of social care. But from our check-in calls, there were references by providers to concerns around DNACPR, and this email was prompted by a very sad email that came to us from someone who – a resident in their home had died in the most distressing of circumstances. And so I wrote to the Chief Medical Officer, the chief exec of the NHS, Chief Nursing Officer, and the Chief Social Care Officer for Wales to talk about the need for there to be assurance that end-of-life medication, and care, and palliative care, could be dealt with as effectively as possible.

790 of our care homes didn’t have nursing and therefore they didn’t have access to end-of-life medication and to oxygen, and we contacted Healthcare Inspectorate Wales, we discussed the issue, and so on 21 April we issued the joint statement.

Advanced care planning is a part of managing end-of-life care for individuals, and there is very good guidance available which needed to be followed. And therefore, we reminded those concerned of the guidance that existed and the need to ensure that no blanket decisions were made, these are individual discussions that needed to take place with the individual, their family, their carers, and their advocates.

As the calls showed, most providers felt this was an issue that in care homes wasn’t a continuing issue, the Older People’s Commissioner raised this with me on several occasions, we followed up every notification we got that this was a concern. And I think the issue about one of our lessons learned is to make sure that providers of care and families are to be seen as partners in care therefore a clear understanding of how a DNACPR should be used. There was also a letter that you’ll be familiar that had been written by a one GP practice and I think that caused a wider perception that this was an issue.

But for us, this was an issue that lasted for the early days, and then it seemed that this was a problem that was resolved, because there was a very clear pushback from Welsh Government, from ourselves, from Public Health Wales, that you cannot make blanket decisions about DNACPR.

Ms Beattie: So that’s a message being sent to the sector. What about actual investigation of whether those DNACPR notices were put in place and then relied on the way, for example in that distressing case, with a very real consequence for the individuals involved?

Ms Gillian Baranski: I mean, all we could do in that instance is deal with the issue as it pertained to a care home. The issue of whether GPs were using it was an issue for our colleagues in Care Inspectorate Wales. If ever it came to our attention, we would share it with them, but we wouldn’t have had the power to take that forward.

What we did do was, whenever we were aware of it we would follow it up and notify the appropriate people.

Ms Beattie: Well, together with the health inspectorate Wales or unilaterally, do you accept that an investigation into the issue of inappropriate DNACPRs would have helped reassure care recipients and their relatives that there was regulatory authority knowledge and oversight of these matters?

Ms Gillian Baranski: I am not sure, apart from the instances we were aware of, of how widespread it was. And it wouldn’t be for us to direct another organisation to tell them how they exercise their oversight. Though having said that, every issue we drew to the attention of Healthcare Inspectorate Wales, they took forward, and I know there was action over the specific instance on 5 April example that came to our attention.

Ms Beattie: But would your organisation have been well placed to do that work in the care sector, leaving aside the health sector?

Ms Gillian Baranski: If it had become an issue in the care sector, we would have taken action with our colleagues. But at one stage, in May, 89% of providers were telling us they were confident to provide good quality end-of-life care, and 95.5% of providers were telling us they had access to end-of-life medication.

So it was raised, but in a very small number of cases, with us. But I couldn’t answer how frequently it was raised, I’m sorry, with Healthcare Inspectorate Wales.

Ms Beattie: And one further topic, which is taking you back to the check-in calls, which you’ve been asked some questions about.

Ms Gillian Baranski: Yes.

Ms Beattie: Between 30 March and 26 June 2020, the Care Inspectorate

produced then qualitative analysis reports of those –

the information that came from those calls – as part of

the check-in calls, and put forward findings about that.

What qualitative analysis did the Care Inspectorate

do of information received not from the providers, but

from people using the services and their relatives,

friends and advocates –

Ms Gillian Baranski: Yes.

Ms Beattie: – as distinct from what but you were being told from

the providers and managers of those providers

themselves?

Ms Gillian Baranski: So because the voice of people receiving, using services

is usually a fundamental part of how we work, in July,

we contacted about 213 residents of our homes to talk to

them about their experience of living in care homes

during the pandemic. There were some wonderful

responses, very mixed responses, but that the overall

feeling from that is they felt that people had done

everything they could to keep them safe. One –

Ms Beattie: As I understand it – sorry to interrupt you – that was

an initiative taken in July to make specific contact; is

that correct?

Ms Gillian Baranski: Yes.

Ms Beattie: My question really concerns the earlier crucial period from March to June 2020, when, as we’ve heard, there were reduced or no routine inspections, very limited external contact with those services. So were there any qualitative analysis or contact of what you were being told by people in that time, before this initiative in July?

Ms Gillian Baranski: We were still receiving concerns, and concerns from relatives are often about things that they’re told by their relatives, but I can’t recall any of them specifically that were about what it was like in a care home. But – and I appreciate the July call was in July, but the discussion with individuals concerned was very much about their experience during that whole period of what it was like to live in a care home. And most of the responses were very positive about the support they’d received. They clearly missed their families. One person said, “I just wish I was 20 years younger and living at home.”

But they were generally very positive, and it was – it may have been done in July, but the questions were about the whole experience of living in a care home during that really difficult period.

Ms Beattie: Okay, but you can’t assist us with anything specific done before that July time?

Ms Gillian Baranski: Only the normal conversations that we’d be having.

Ms Beattie: Thank you, my Lady.

Lady Hallett: Thank you, Ms Beattie.

That completes all the questions we have for you,

Ms Baranski. Thank you very much indeed for your help,

and – did you have the help of colleagues in preparing

your statement? I suspect you possibly did, I don’t

know. But if you did, thank you to them as well.

The Witness: Thank you very much, my Lady.

Lady Hallett: So thank you for what you’ve contributed, and

safe journey back to Wales.

The Witness: Thank you.

Lady Hallett: 10.00 tomorrow, please.

(4.40 pm)

(The hearing adjourned until 10.00 am the following day)