8-07-2025

(10.01 am)

Lady Hallett: Ms Hands.

Ms Hands: Good morning, my Lady. We’ll be starting with Ms Julie Parkinson this morning.

Ms Julie Parkinson

MS JULIE ANN PARKINSON (affirmed).

Questions From Counsel to the Inquiry

Ms Hands: Ms Parkinson, good morning. You are attending the Inquiry today to provide your experiences of running a domiciliary care agency during the pandemic; is that right?

Ms Julie Parkinson: Yes, that’s right.

Counsel Inquiry: You have provided a statement. To those following, it can be found at INQ000614375.

By way of background, Ms Parkinson, is it right that you have worked in the care sector for approximately 20 years?

Ms Julie Parkinson: That’s correct.

Counsel Inquiry: And that’s in both care homes and in domiciliary care?

Ms Julie Parkinson: Yes.

Counsel Inquiry: And then in 2007 you set up your own domiciliary care agency?

Ms Julie Parkinson: Yes, that’s correct.

Counsel Inquiry: And you have said in your statement that you’ve held the role of manager but you also have qualifications and training to provide care to clients if required?

Ms Julie Parkinson: Absolutely. I’m a trained carer.

Counsel Inquiry: And in relation to the staff and services within the agency, is it right that you had 15 employees and 23 clients during the pandemic?

Ms Julie Parkinson: That’d be correct, yes.

Counsel Inquiry: And they were all vulnerable adults with different, complex needs, aged between 18 and 101 years old?

Ms Julie Parkinson: Yes, that’s right. Yes.

Counsel Inquiry: You have also described how, in a typical day, one of your employees might visit between five to six clients, sometimes up to four times a day, during the day and night, and will provide support with tasks such as personal care, medication and welfare checks?

Ms Julie Parkinson: Yes, that’s correct.

Counsel Inquiry: And if a client requires it, they will also work in pairs; is that right?

Ms Julie Parkinson: Yes, some calls will be for a single carer and some calls would need two people, for moving and handling.

Counsel Inquiry: And I’d like to turn now to your experiences of running the agency during the pandemic, but before I do so, could you briefly summarise how you and your employees felt at the very start, in perhaps February/March of 2020.

Ms Julie Parkinson: Yes. At the beginning, at the beginning of the pandemic, there was a lot of fear. We didn’t really know – you know, nobody knew, nobody knew what was out there and what was going to happen. So there was a lot of fear. And we talked to the staff and asked them whether they wanted to continue working. All of them wanted to continue. Their question would be: well, who would look after our clients if we didn’t do that? So they had already made that decision that they were going to continue.

We did have an instance where their confidence was undermined, and that was by some paramedic staff, gave some information which undermined their confidence, and two members of staff left because of that. But we discussed that with the rest of the team and said, you know, “If you need to leave because you’ve got problems, if you’ve got a baby or you live with your grandparents and you’re worried, we understand and, you know, we’ll manage.” And we did.

Counsel Inquiry: And you’ve said in your statement how you tried to ensure that your clients would see the same care professionals every day. Why is that important for your clients and staff?

Ms Julie Parkinson: Oh, for continuity. The staff get to know the client, what their wants and needs are. That’s set out in the care plan. But it’s getting to know them individually, and, you know, the way they like things done. And that’s very important to people. And to keep their routine the same. So it’s important for the staff to have that connection.

And from the client’s point of view, it’s important for them to see the same people. What they don’t want to see is a different face at the door every day. And in some, in some providers, they have such huge teams that they have different people going in all the time. They can’t make a personal connection.

Counsel Inquiry: And was it always possible to maintain that during the pandemic?

Ms Julie Parkinson: Absolutely, yes, our teams worked in the same teams that they always did; and I supplemented the staff, so I knew everyone everywhere, as well.

Counsel Inquiry: Did your clients continue to visit five to six clients per day or was there any reduction or restriction on their movement?

Ms Julie Parkinson: Yeah, right at the beginning, when we weren’t sure, when we weren’t sure what was happening, we did look at which calls that we could reduce, either – or move to a telephone appointment. So we would ring and say, “Do you need us to come for the next call?” That was to minimise contact because that was the important thing at the time: in lockdown, it was minimising contact. So we did do that. It wasn’t for a very long period; it was just until we were confident in what we were doing and how we were going to do that and then normal service resumed.

Counsel Inquiry: And were they telephone calls or were they video calls?

Ms Julie Parkinson: Telephone.

Counsel Inquiry: And did your staff and clients have the technical ability to do with that and did they –

Ms Julie Parkinson: Yes – yeah, we only did that with people that we knew that they could possibly manage a little bit longer until we got to their next call.

Counsel Inquiry: You have explained in your statement how some of your care workers were required to carry out more healthcare tasks than usually required of them. Can you provide some examples of the type of tasks that they were carrying out?

Ms Julie Parkinson: I think mainly that was wound care. If we’ve got someone with pressure sores and they’ve got dressings, normally we would never have dealt with dressings prior to the pandemic, and that’s about infection control and obviously wound care, but we do do that now, as a result of the pandemic, because obviously the nursing teams were limited, as well. So they left us enough supplies that we could carry that out. And obviously, if we found signs of infection or it was deteriorating then we would definitely get the nurses involved but on the whole, we were able to manage that and help them because then that saved them their time to deal with other calls.

Counsel Inquiry: And you said that that’s continuing.

Ms Julie Parkinson: Yes.

Counsel Inquiry: Why do you think that is?

Ms Julie Parkinson: I think it just helps the nursing, the community nurses. So they know that we can do that safely, and then, if we feel as though we need help, we will ask for it.

Counsel Inquiry: And did you or your staff receive any training on those tasks?

Ms Julie Parkinson: Brief training.

Counsel Inquiry: Sorry?

Ms Julie Parkinson: Brief. It was brief training.

Counsel Inquiry: Can you remember when that was?

Ms Julie Parkinson: I couldn’t say specifically. It would have been – and it would have been particular – it wouldn’t have been general, it would have been specific to an individual person with wounds. So we would have been shown – well, by the nurses, “This is what we want you to do and this is how to do it” and then – so that would just apply to that one person.

Counsel Inquiry: Do you think it would have been helpful if there had been more training?

Ms Julie Parkinson: I think it would be, yes. I think we could – that’s something that could come – could happen, yes.

Counsel Inquiry: Who do you think would be best placed to provide that training to you or your staff?

Ms Julie Parkinson: Well, again, I think there is generic training. We can do e-learning on that sort of, on tasks, but we would appreciate specific training to that individual, because everyone’s different. So each person would need different level of care. So the training specific to that individual, that’s person centred.

Counsel Inquiry: And did your care workers have any problems in accessing medical care or treatment for your clients if they did need it during the pandemic?

Ms Julie Parkinson: That was so difficult. It really was. The GP service, they were in disarray, as well, with shortage of staff and obviously they were overwhelmed with people who thought they had Covid or might have had Covid. So it was very, very difficult to get doctors’ attention. We were recommended to use 111 service and that doesn’t work in domiciliary care because you’ve got to stay with the person that needs the help to answer the questions. It just doesn’t work.

So we had problems getting appointments, getting doctors to come and visit people who were bedbound and can’t go anywhere. So the call times, we’d be on hold for up to 45 minutes just trying to get through to the surgery and we would have very, very robust conversations with receptionists to try to get care.

Counsel Inquiry: Did you observe any impact on your patients as a result of that?

Ms Julie Parkinson: Well, we all – no, we always – we achieved our aims. We always got the care. It was just an extra burden for us to have to really fight for that.

Counsel Inquiry: You’ve discussed in your statement the IPC guidance that was issued, and you’ve stated that you felt the guidance was tailored more towards care homes rather than domiciliary care and was often not appropriate or even relevant to the services you were providing.

Can you provide any examples of those type of measures that were in the guidance that didn’t readily fit within the domiciliary care setting?

Ms Julie Parkinson: Yes, we – in domiciliary care we have infection control procedures, and we used PPE. We had a stock of PPE, because we always did. I think that we were already working to those standards, and suddenly we were getting new information about how to do something differently, it was different instructions for donning and doffing PPE, which wasn’t appropriate to domiciliary care.

There was videos and posters giving information on how to do that. Always the instruction would come from someone in a clinical outfit, in a clinical environment, in a special room to one side in order to don and doff your PPE, with a clinical waste bin next to you, that’s foot operated, and then you would put that – drop it into the bin. And that just doesn’t work in domiciliary care. You just don’t have that environment.

Counsel Inquiry: What is the environment for donning and doffing?

Ms Julie Parkinson: Well, it’s very different. If you think – you know, the house that you live in, all the houses that we went to, they’re all very different. Some of them are very, very tiny, and you’re just standing in the doorway, putting on your PPE in the doorway. Sometimes you could go into the bathroom to do it, but not always. And certainly during Covid you would put that on right at the beginning, you wouldn’t want to go into the house in order to do that. You would do that at the door.

You didn’t have the waste disposal; you just had someone’s kitchen bin or their waste bin outside. So that – you know, we didn’t have clinical waste, so that didn’t really work for us. We just had to continue doing what we always did.

Counsel Inquiry: Do you think it would have been helpful to have had specific guidance for domiciliary care that perhaps would have taken into account some of those –

Ms Julie Parkinson: Well, just if they had acknowledged that it would be different for us. There was no acknowledgement.

Counsel Inquiry: And did you, as a manager or a provider, receive any support or were there any resources to you to help interpret and disseminate the guidance to your staff?

Ms Julie Parkinson: Well, at the time – I think it’s slightly different now, but at the time I felt completely isolated, as a manager. I’m self-employed and run my own business. I don’t have a team of admin staff. I don’t have anyone, really, to talk to. And at the time, it was just me receiving all of the guidelines coming from different – you know, some from the local authority, some from Skills for Care, some – different bodies sending information, and I would have to pick my way through it all and find what – how – and interpret it to our service, because it was clearly – a lot of it was meant for health and a lot of it was meant for care homes, and I had to pick out the bits that would be appropriate to us, and I didn’t have anyone to discuss that with.

And I did, if you – I did ask for help, I think it was probably from the local authority, and they said, “Oh, we’ve sent you all the guidelines that we’ve got.”

So they did their job, but then I had to just work with it myself. So I just had to do what was best for my service.

Counsel Inquiry: And how would you inform your staff if there were updates to the guidance?

Ms Julie Parkinson: Well, we have a group chat, a network where we can disseminate information, and by telephone. And obviously I was out on the road working with them as well, so face-to-face –

Lady Hallett: A group chat between?

Ms Julie Parkinson: Just the staff and –

Lady Hallett: Just the staff. Not other people in a similar position?

Ms Julie Parkinson: No, no, no, just the staff. So a way for me to communicate with my staff.

Ms Hands: And on the same topic of guidance, but looking at it perhaps from the perspective of those that you were caring for, was it suitable for their diverse needs?

Ms Julie Parkinson: Sorry, say that again?

Counsel Inquiry: The IPC guidance, or any of the national guidance that you were asked to follow, was it suitable for the needs of those that you were caring for, the PPE guidance?

Ms Julie Parkinson: I think so, yes. I mean, infection control was for everyone, wasn’t it? Suddenly it wasn’t just the people that we were caring for; it was for ourselves as well, and for everyone in the community.

So I think it was right to have infection control, but there was social distancing, as well, and we couldn’t do that, and we were working together with an individual, hands on, but you couldn’t be 2 metres apart. So we needed PPE for that.

Counsel Inquiry: And you’ve said in your statement that you attribute the confusing and impractical guidance from DHSC to the fact that they lacked knowledge and understanding of the sector, and do not listen to recommendations coming from the sector. How do you think the sector can be better understood and listened to in future?

Ms Julie Parkinson: I think just need to really recognise that it’s different. We’re sort of all swept – Department of Health and Social Care sweeps everything together, and it includes health, it includes social care. Social care is so vast in itself, it’s care homes, it’s domiciliary care, it’s family care, unpaid carers. It’s supported living, it’s mental health support. It’s so different and vast, I wouldn’t like to have to put a policy together that encompasses everyone, but I think just acknowledging the differences and really focusing in on how we work and how different it is for us –

Counsel Inquiry: Is –

Ms Julie Parkinson: – than it being in a clinical environment, yes.

Counsel Inquiry: Sorry for speaking over you.

Is there a role, do you think, for consultation with stakeholders and service users?

Ms Julie Parkinson: Without a doubt.

Counsel Inquiry: I just want to ask you about the topic of funding and whether you or your employees tried to access any of the additional funding that was made available during the pandemic?

Ms Julie Parkinson: We didn’t.

Counsel Inquiry: Was there a discussion or a reason for deciding not to try to access it?

Ms Julie Parkinson: I think it was just a complex – it was new, it was brought in just right in the middle at the height of the pandemic when we were all just sort of – just trying to keep it together. And I think it was more geared towards care homes as well, because they had different problems to us, and they needed, you know, extra cleaning or their staff was – they had a lot worse staff shortages, and I think – I think it wasn’t really going to help us in any way.

Counsel Inquiry: Was there any financial impact on your workers or the agency as a whole as a result of having to self-isolate or the shortages of staff?

Ms Julie Parkinson: No, I think we didn’t actually have – in the first lockdown we didn’t have any member of staff self-isolating, so it wasn’t a big problem. Certainly later on, we did have staff that did actually contract Covid, but I don’t, I think – I’m not really sure because we – our payroll is outsourced so I think they might have …

Counsel Inquiry: Okay. And you have told the Inquiry that you didn’t introduce the mandatory vaccination during the pandemic as most of your staff had received it once the condition of deployment had been brought in.

Ms Julie Parkinson: We all that the vaccination when it first – immediately, when it first came out, we all had that vaccination. Everyone had it. Our local authority was really good; they organised stations and gave us time slots for our staff. So all of our staff had the first – the first vaccination and then the booster, it was about three or four months later there was a boost. So every single member of our staff had that. Nobody wanted to pass the virus on to one of their clients or to a member of their family. Nobody wanted to do that. So everybody had that at the beginning.

Later, when – it was six months later and the second wave of vaccinations, there was a lot more scepticism, and there was a lot more confidence, I think, because they’d had the first vaccination and felt as though they were safe. And there was then – became a lot of – there was a lot of negative publicity around the vaccination and a lot of the girls felt as though they didn’t need it and didn’t want it.

Then, then the government said it became a condition of employment, and that changed everything again. All of my staff – well, most of the staff took it under that circumstance that they needed to have it in order to continue working and looking after their clients, so they did. Of course right at the last minute, when the NHS really objected, and didn’t, and obviously the government realised they couldn’t actually enforce that as rule, that law, that rule then changed, that really upset a lot of staff because they’d obviously taken the vaccination and they didn’t actually need to so they weren’t happy about that at all.

Counsel Inquiry: And you’ve briefly referred to the fact that you had some PPE stock going into the pandemic?

Ms Julie Parkinson: We did.

Counsel Inquiry: Did that include a range of different types of PPE? Masks, for example, hand gel?

Ms Julie Parkinson: No, prior to the pandemic we didn’t use masks in domiciliary care. We used aprons, disposable aprons, disposable gloves. All the staff wear tunics, a uniform, but then they’d have their plastic apron on when they were delivering personal care, and gloves. So we had a stock of that because we used that in our normal practice. We didn’t have masks and right at the beginning there was conflicting information about masks. There was talk of everyone was having masks, but we couldn’t get them and we did buy some, there were people making cloth masks on Etsy and, you know, that sort of thing so we did buy some masks at the beginning and then once the portal open and we were given them, then we used them according to the guidelines as best we could.

Counsel Inquiry: Was that reliable –

Ms Julie Parkinson: Actually, we did have hand sanitiser gel as well, we used that as well, as part of our own infection control, so we did have a supply of that, but it very quickly ran out because I think a lot of it just disappeared off into families taking – you know, thinking, oh, well, that will be useful. And I didn’t mind that at all, I just wanted everyone to feel safe but we did run out of hand sanitising gel and that was very concerning.

Counsel Inquiry: Can you recall how long it was before you were able to source more hand gel?

Ms Julie Parkinson: I wouldn’t like to say how long that was.

Counsel Inquiry: You said that you were able to access the PPE Portal, I think that was from around May 2020, you said in your statement. Was the PPE that was available through that reliable in terms of delivery and type of PPE that was actually then delivered?

Ms Julie Parkinson: It was. It was very useful. It was the – and it was the same products that we had already been using, by and large.

Counsel Inquiry: And would it have been helpful if that had been available to you earlier?

Ms Julie Parkinson: Yes, I think – well, for my service, we didn’t run out, we didn’t run out of gloves and aprons, and because we had run out of sanitising gel, I did buy soap dispensers and put them in all of the houses that we were attending so that there was means. And I also provided the big blue paper rolls for, you know, to help with hand washing and hand hygiene. So we did that, we just did that automatically as soon as we realised. So that was our contingency, if you like, until the hand sanitising gel became available again.

Counsel Inquiry: And was that – were those items that you had to pay and source yourself?

Ms Julie Parkinson: Oh I did that, yes, prior to the portal. Once the portal opened we got more supplies of everything and we were given hand soap and we were given hand sanitising gel, yes.

Counsel Inquiry: And you’ve said in your statement that your usual PPE supplier told you that the government was prioritising the NHS and care homes?

Ms Julie Parkinson: Absolutely. We – at the beginning of the pandemic we thought, right – well, we had a stock, but we thought: well, we could do with some more. We couldn’t get any. We tried to order it on Amazon, you know, from China, and we put our order in but nothing ever arrived.

Counsel Inquiry: And how did that make you and your employees feel, being told that?

Ms Julie Parkinson: Well, I was just relieved that we already had a stock, to be honest. And I – you know, at that time we were just thinking about right now. We weren’t thinking about three months ahead. So I was happy that I had that stock. And then the portal, you know, eventually did open, and we were able to top that up. And then we had a consistent supply, which we – which was – I think that was – it was measured by the government according to how many clients that we had, it was proportionate to that. So obviously if you – a bigger company with a lot more clients would have had a lot more PPE. So I think that was correct.

Counsel Inquiry: And I think you’ve said that around the same time as you were able to access of the PPE you were also able to access Covid-19 tests for your staff?

Ms Julie Parkinson: Eventually they came through, yes. That was a bit later.

Counsel Inquiry: Okay. What had your experience been in trying to access tests up to that point?

Ms Julie Parkinson: Very difficult. At the beginning, when the tests became available, they were distributed through local pharmacies, and in theory you could go in and get them for your service, but the pharmacies just protected them, you know. And rightly so; I think there would be people going in trying to get them. But that just made it really difficult for us to get them.

So, again, once the supply came through the portal, that just relieved that burden. It was a burden, going round all the pharmacies trying to get five packets here and five tests there.

Counsel Inquiry: Mm – and you said it –

Ms Julie Parkinson: We needed them. You know, we needed them to test before each shift, so it was complicated.

Counsel Inquiry: Yes. You’ve said that you think that was a bit later. Can you recall when it was that –

Ms Julie Parkinson: I can’t. I wouldn’t like to say, sorry.

Counsel Inquiry: Not at all. And did your staff follow the guidance and regular testing once it was introduced or did you have any implementation issues?

Ms Julie Parkinson: Again, I think the staff were sceptical. They wanted tests to know whether they had contracted the virus. So if they weren’t feeling well and they needed – they would test. But then, when it became a rule that we had to test before each shift, well, your shift starts at 7 o’clock in the morning, you’re up early, you’re going to be – you know, you didn’t get to bed until 11 o’clock the night before from your previous shift, a lot of them just – you know, they didn’t want to do that. It was hard to persuade them to do that.

I think at the beginning, you know, in the fear at the beginning, they were grateful, but then as we became more confident and we’d all been vaccinated and then – it was more – it was more difficult to persuade them to do that regularly.

And I think – there was an administrative burden for me to collect all the results, and I was working, and that was just another layer of admin, if you like, that I had to monitor that and gather the results and report them back. And it was just complicated. It was just another complication.

Counsel Inquiry: Just focusing for a moment on the clients that you and your workers were seeing, did the use of PPE cause any difficulties for communicating with clients or any challenges there?

Ms Julie Parkinson: We did have challenges with that. First of all, our clients knew their staff. They knew who to expect. They would look forward to the visits. So suddenly the staff are coming in with a facial covering. Well, you know …

And especially if they were deaf, then you’ve got someone hard of hearing who can’t see your lips. That was complicated. You couldn’t see facial expressions if you were – you know, where you tried – when you’re looking after someone who is elderly, vulnerable, you don’t – you want them to know that you’re happy, that you’re confident, and that shows in your body language and your facial expressions, and that was all gone.

So someone with dementia, who doesn’t understand what’s happening out in the wider world, didn’t understand why they couldn’t see the face. Sometimes we would put a smile on the masks.

Counsel Inquiry: And again – sorry, I didn’t want –

Ms Julie Parkinson: That was all, just – you know, we just tried to – we had – we used – the mask was for safety, obviously, but we still had to try to keep that engagement with the client.

Counsel Inquiry: And again, was there any support or resources available to perhaps help with some of those communication difficulties that your staff were facing?

Ms Julie Parkinson: Not that I remember.

Counsel Inquiry: Again, would that have been helpful?

Ms Julie Parkinson: Yes, I think so, yes.

Counsel Inquiry: You have addressed your experience during the pandemic with the CQC and the local authority in your statement. Did you receive any support from the CQC and was it helpful?

Ms Julie Parkinson: I did. I did. I received a telephone call from my inspector. It was a brief chat. He did ask how I was and how was I coping and how was the team coping. So I did. I did receive that.

You know, it’s a drop in the ocean, given the amount of fear and disruption to the service and the concern for everything.

We did receive written acknowledgement of our service as well. We received a letter from the Department of Health and Social Care, I believe it came from Matt Hancock, and that was all about how the department was aware of our difficulty in trying to support us and giving us that support.

We also received a letter from the Chief Nurse and we received a letter from the leader of the council. And that was nice to have that acknowledgement, and I was able to circulate those letters on the group chat and photograph them and put them out, so everyone knew that that acknowledgement was there, and that was valuable and helpful I think.

Counsel Inquiry: How do you think you could have been better supported?

Ms Julie Parkinson: I just – I think in terms of the guidance that we were getting, I didn’t feel – I felt as though the guidance was aimed at health and it was aimed at care homes. There was obviously huge concern over care homes and how they were caring for people with or – either had Covid or protecting them from Covid, and there was huge concern about that. And I think the information for us was either tacked on the end of that or there was just nothing, so we had to pick out anything in the document that might relate to our service rather than reading: “Actually domiciliary care can continue as before. Continue what you’re doing.”

That would have been enough, rather than us just having to read everything through reams – reams of information coming in our direction – to be interpreted.

Counsel Inquiry: And I think you’ve said that you felt supported by your local authority –

Ms Julie Parkinson: Absolutely, yes.

Counsel Inquiry: – which you’ve referred to today. What were some examples of the positive support that you felt you –

Ms Julie Parkinson: Well, we had – they continued with – we had regular meetings, they’re called provider forums, and we – and there’s training as well, and that all went on to Teams so that we could still communicate with each other, and still see each other, which was really useful. And, you know, over time, we would say, wow, it will be lovely when this is over and we can all get together in person again, and look forward to that. But we did have that contact with them and they made that effort, which was really helpful.

Counsel Inquiry: And finally, Ms Parkinson, I would like to ask you, if I may, if you and/or your employees have felt any long-term impact of the pandemic?

Ms Julie Parkinson: You know, it’s a distant memory now but the memory is – overriding is of fear, and complication, and difficulty. We have lasting problems with – well, still with GPs, still getting access to appointments and doctors’ visits. We’ve still got problems with that, because we can’t get – during Covid the complication was just getting access to – getting through on the phone. But now, there’s different phone lines that are set up for health professionals. We’ve been told categorically we can’t use that number. We’re not part of the healthcare team. And that really doesn’t – that doesn’t align with us working collaboratively.

Health, GP, nurses and social care should work collaboratively, because the person that’s important is the patient. It’s the person that we are supporting. It’s not about us wanting to be important; it’s about getting the right service that’s needed for our client, and to be told that we’re not part of the care team, it doesn’t sit well with us.

Ms Hands: Thank you.

My Lady, that concludes Ms Parkinson’s evidence.

Lady Hallett: Ms Parkinson, I’ve heard a number of accounts of the problems when people go from home to home, and how that can increase transmission. Did you have – presumably your staff would visit more than one client in a day.

Ms Julie Parkinson: Absolutely, yes.

Lady Hallett: Did it ever become a problem for you?

Ms Julie Parkinson: No, no. We were classed as care workers so we were on the road. Everyone else was locked down but we were able to go – we had to go to work, that was part of – the only way that we could do it was to go and visit someone in their own home, and you would repeat that throughout the day, so there would be morning, lunch, tea, bed, and you would see them, so you’d be travelling from various home to home, and there was no restriction on that because there was no other way of doing it. Right at the very beginning we tried to minimise contact and we did reduce some of those calls or merge them together, but that was just a very short period until we were vaccinated and we were confident, and then we went back to normal service. But there was no restriction on that.

And it didn’t cause us a problem because we – well, you know, we were supposed to be social distancing and you can’t do that in a car and, you know, the rule was one person in the front, one person in the back, and all the windows open. We did that. You know, we did the best that we could to prevent transmission and that was our prime focus: to prevent transmission.

Lady Hallett: I was just thinking, when you were being asked by Ms Hands about the PPE, presumably when you talk about masks you didn’t have any at the beginning and then you had to get some, presumably you only ever got the fluid resistant surgical mask with the blue –

Ms Julie Parkinson: Yes. That’s right, yes.

Lady Hallett: Given what we now know about the nature of the virus, so wearing those masks, and your staff going between different clients’ homes, you still didn’t end up with the problem of transmission, so you obviously must have taken very great care.

Ms Julie Parkinson: That’s right. We didn’t have any transmission. We didn’t have any – the only – of the people that we were supporting, the only ones who caught Covid caught the Covid when they went to hospital for an X-ray or an appointment and had come back with Covid, yes. But not within our service at all.

Lady Hallett: And the message I’ve been getting from people like you, those who run care homes and now domiciliary care, it’s basically, it’s all about recognition of your sector, isn’t it?

Ms Julie Parkinson: Absolutely, that’s all. That’s all.

Lady Hallett: And getting you the point you made just now about the GPs, that’s part of it, is the lack of recognition of the service you’re providing.

Ms Julie Parkinson: Absolutely, mm-hm, it is. And that’s all we want.

Lady Hallett: Thank you very much indeed. I certainly have got that message, so thank you very much for all that you did during the pandemic to look after your clients. I’m sure they were extremely grateful. The 101-year old, did they have any family around?

Ms Julie Parkinson: They did, and yes, unfortunately they couldn’t visit, and from a daily visit, from her son, from a daily visit to no visits at all, he was just entirely grateful that we were continuing to visit and, yes.

Lady Hallett: Well, thank you very much for your help to the Inquiry and all that you did during the pandemic and obviously to your staff too.

The Witness: Thank you very much.

Lady Hallett: Thank you.

Mr Beech.

Mr Beech: Yes. Good morning, my Lady, may we please call Mr Kevin Mitchell.

Mr Kevin Mitchell

MR KEVIN MITCHELL (sworn).

Questions From Counsel to the Inquiry

Mr Beech: Thank you.

Good morning, Mr Mitchell, I’m going to ask you some questions arising largely out of your witness statement which is dated 11 March 2005.

Just in terms of your background, you’ve had a long career of public service and you’ve been involved with the Care Inspectorate since its formation in April 2011. And in August 2015 you were made the acting Director of Inspection and then became permanent in 2016; is that correct?

Mr Kevin Mitchell: Yes, that’s correct.

Counsel Inquiry: So during the time of the pandemic, then, you were still in that role?

Mr Kevin Mitchell: I was indeed.

Counsel Inquiry: Thank you. I’m just going to ask you some general questions then about Care Inspectorate and its role within the adult social care sector in Scotland.

You set out in paragraph 10 of your statement that:

“The Care Inspectorate is the independent scrutiny and improvement support body for [adult] social care services Scotland.”

Is that correct?

Mr Kevin Mitchell: Yes, that’s correct.

Counsel Inquiry: And you emphasise there, the Care Inspectorate’s independence, is that independence not only from Scottish Government but also from the various other bodies in Scotland such as Healthcare Improvement [Scotland], Health and Social Care Partnership, and directors of public health?

Mr Kevin Mitchell: Yes, that’s also correct, yes.

Counsel Inquiry: Thank you. I’d be grateful if we could please have INQ000475130, page 5, on the screen, please. And just paragraph 21 there. You set out:

“In broad terms the Care Inspectorate is responsible for:

“registering care services.

“inspecting [care] services …”

And then just slightly over the page:

“taking enforcement action when the quality of care in care services is not good enough …”

Accepting it’s a very broad overview, is that the constituent parts of what we talk about as regulation?

Mr Kevin Mitchell: It is a broad overview but that would accurately describe our broad responsibilities.

Counsel Inquiry: And from your perspective and from the perspective of Care Inspectorate Scotland, why is regulation of adult social care services important?

Mr Kevin Mitchell: It’s important because we ensure through the work that we do, that the standards of care are sufficiently high. When they do not meet that standard, we take action, endorsement action as a last result, but we will use the scrutiny, our general approaches to inspection are done in a way that also is geared to support improvement and, in certain circumstances, the organisation will provide targeted improvement support to individual services and providers. And as I say, the enforcement action is a last resort, but if the standards of care are so poor, we won’t hesitate to use those enforcement powers.

Counsel Inquiry: Thank you very much.

I’m just going to ask you to slow down ever so slightly. We’ve got a stenographer who is trying to keep up. Okay?

The Care Inspectorate’s role, then, is set out largely in the 2010 Act and it brings support services and care home services within the regulatory remit of Care Inspectorate Scotland; is that correct?

Mr Kevin Mitchell: Yes, that’s correct.

Counsel Inquiry: Unlike in Northern Ireland and Wales, it’s simply a care home service which is registered. There’s no distinction made between residential homes and those which have nursing provision; is that right?

Mr Kevin Mitchell: The registration category is care homes, and you’re correct that some provide nursing care but others don’t, but the category of registration is care home.

Counsel Inquiry: During the pandemic, did the lack of that information as to whether a home was simply a – I don’t use “simply” in a pejorative sense, but a care home or a residential home or had nursing provision, did that have any impact on the Care Inspectorate’s ability to have oversight of the sector?

Mr Kevin Mitchell: No, we have a quality framework that we inspect against, and it’s the same framework for both, for that service type, which includes those that provide nursing care and those that do not.

Counsel Inquiry: I’m going to ask you about a specific point then, in terms of – would Care Inspectorate have the information as to which homes on its register would be able to isolate residents? Is that something which was collected either before ordering the pandemic?

Mr Kevin Mitchell: Not – we have an annual return that tells us and distinguishes those care homes that provide nursing care and those that do not, but we don’t have information that would tell us about how residents might be isolated in the event of an outbreak of infection.

Counsel Inquiry: Thank you. I would just like to now move on and spend a bit of time this morning talking about regulatory inspections.

You set out in your statement in quite a fair amount of detail about the methodology, regulation standards and quality frameworks. I’m very grateful for that, but I’d like to perhaps focus at this time on time frames for inspections.

So if I could have INQ000475130, page 34 and paragraph 107, please.

You set out here that:

“[Regulations from 2012] provide that some types of care services (care homes … and support services …) must be inspected at least once per year and that inspections of services of these types must be unannounced.”

Prior to the pandemic, was the Care Inspectorate able to inspect all of these services once a year?

Mr Kevin Mitchell: Largely, yes. I think it’s important to just point out that the year is defined as 1 February to 31 January in the legislation. So, in effect, an inspection could – the gap between an inspection could be as long as 23 months and still comply with the legislation, but broadly speaking, yes, we did.

Counsel Inquiry: And if I just might put a perspective from the CQC, who we heard evidence from yesterday. In their supplementary statement they set out that:

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

I would just like to ask, first of all, do you agree with that, and, second, just to expand on why they are seen as such an integral part of – (overspeaking) –

Mr Kevin Mitchell: Yes. Certainly in our experience and my experience, the most effective inspection is that which is undertaken on site, where you can see what is being done, where you can observe practice, and where you can speak to – particularly to residents and any relatives who may be in the service.

There are the benefits, as we found during the pandemic, from technology, particularly when you want to speak to relatives who may not be present in the service when we inspect, but by and large, an inspection, in our experience, is best done on site.

Counsel Inquiry: If I may, and forgive me if I’m jumping out of sync here, but follow up on that. So there was some use of virtual technology by Care Inspectorate during the pandemic. Did that amount to inspections of residential nursing homes?

Mr Kevin Mitchell: We did – we did use it to test out on some inspections. We very quickly realised it was important to direct individuals to show us things if we were using technology, because we were conscious that they may not want to show you what they don’t want to show you. But again, the biggest advantage, I think, was – we would conclude that it was in terms of making contact with relatives who you might otherwise not have the chance to speak to during an inspection.

Counsel Inquiry: And just, again, in terms of going forward in a future pandemic, would the Care Inspectorate be looking to use more virtual means or, as you say, is it not an appropriate substitute for in-person, on-the-ground –

Mr Kevin Mitchell: I think we would confine – in day-to-day activities, we would confine the use of technology to engaging with parents, carers, you know, in terms of our children’s services, with professionals, perhaps, who we might not be able to see on site. But by and large the inspection of the service itself should, as far as possible, be carried out on site.

Counsel Inquiry: Thank you.

I’d now just like to move to some of the actions which Care Inspectorate, Scotland, took during the pandemic, and perhaps if we start at a decision which was taken on 9 March, which you outline in your witness statement at paragraph 213.

Thank you.

At that stage it was proposed that there be a:

“… postponement of inspections of low/medium risk care services and only carrying out on-site inspections of ‘core assurances’ …”

Moving slightly further on:

“… where there were specific concerns, or the risk was assessed as ‘high’ and the process to be followed.”

So at that stage there was a proposal to move to a more risk-based approach, where lower-risk homes would be left but inspections would continue of higher-risk homes; is that correct?

Mr Kevin Mitchell: Yes, that’s correct. When the chief inspectors and myself met on 9 March in view of what we saw unfolding, we didn’t envisage at that point not undertaking inspections but we were proposing the scaling down of inspections and, as you rightly say, prioritising those that were of the highest risk.

Counsel Inquiry: You said you didn’t envisage a stopping of inspections. Can you confirm if it was discussed in this gold command structure, if that’s the right term, on 9 March?

Mr Kevin Mitchell: As you would expect us to do, I think we did cover all eventualities, and I think we did make mention of that possibility, but the two real options were the scaling down of our regulated care service inspections and, indeed, our strategic inspections.

And that was for a determined – a period of time that we envisaged, as well. I think it was up until 30 June. But things, as I say, moved very fast in the coming days.

Counsel Inquiry: Perhaps we’ll come on to that, then.

So I think 9 March must have been the Monday. Then by 13 March a decision was taken in fact to scale back inspections.

And if we could have INQ000501204, this was communicated to providers on 17 March.

Mr Kevin Mitchell: That’s correct.

Counsel Inquiry: And if we look, I think it’s the third paragraph, please.

“Over the pass week we have taken the decision to scale down our inspections during this time …”

Just on the use of the terminology there, “scale down inspections”, it appears that no on-site inspections took place until 4 May. Was it a scaling down or was it a suspension or a stopping?

Mr Kevin Mitchell: When we drew up – when we drew the document up on 9 March we basically developed it on the basis of what we thought was unfolding but, as I say, it moved very quickly and the document was approved on the 13th by our gold group. It was forwarded to government the day before for approval, on the 12th, and in that ensuing period we were beginning to get advice about the risk that inspectors might pose in terms of transmitting and spreading the virus if we did go into care homes, and there was a decision taken to cease those inspections.

Counsel Inquiry: So you accept it was a ceasing as opposed to a scaling down?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Just then going back, the factors which played into that, what was the underlying reasoning for the Care Inspectorate coming to this decision?

Mr Kevin Mitchell: It was primarily on the advice of Public Health, who were very concerned about the risk inspectors would pose in terms of transmitting and spreading the virus, particularly into care homes that did not have an outbreak.

Counsel Inquiry: And was that advice produced in writing or was this an outcome of discussions which together place between yourselves and – (overspeaking) –

Mr Kevin Mitchell: I think most of that would have been through discussions. I was never able to find a document as such. I would imagine that those discussions would go directly to our chief executive of the day, Peter Macleod, but certainly there was a decision made based on that advice.

Counsel Inquiry: Thank you.

Just returning, then, to this paragraph which should still be on your screen. The final couple of sentences then, please:

“We are only making visits to services when absolutely necessary.”

What was the threshold which Care Inspectorate Scotland had in their mind at that stage?

Mr Kevin Mitchell: I think we would take enforcement action of the most serious kind when there was what we deemed as serious risk to life. So I think what we were saying here was trying to acknowledge and achieve the correct balance between inspecting only when it was absolutely necessary and, actually, just carrying out business as usual, as we would call it.

So again, this was us, if you like, making the plans from the week of the 9th onwards, getting the decisions that – to the document that we produced on the 9th, ratified, but advice starting to be given and even in terms of this letter going out on the following Tuesday, I think it was, the 17th, advice was still coming through, and really, we ended up, we did not go out on inspection again after that particular point.

Counsel Inquiry: On reflection, is it considered that that threshold – you’ve mentioned serious risk to life. Was that too high, on reflection, to guarantee that oversight of the adult social care sector could continue?

Mr Kevin Mitchell: I think it was difficult to put an absolute measure in there. I think what we were trying to differentiate and be proportionate in our response was to acknowledge the risk by not inspecting routinely low and medium risk services. But if a service was high risk and there’s number of – we have a risk assessment tool that would define that for our staff – we felt that we needed to reserve the right to go out and inspect and when, if it was absolutely necessary to do so. But, of course, we then received Public Health advice more formally which really made that very difficult, in fact, to do without their agreement.

Counsel Inquiry: Okay. Perhaps I’ll come on to some of the Public Health advice that you were receiving in due course this morning. But I would wish to explore – you mentioned that you felt that this decision was proportionate, and I just wish to explore perhaps a couple of perspectives on that.

In particular, could I have INQ000520272, and this is a witness statement from a Ms Kilbee, who has given evidence, or a statement, on behalf of the Scottish Covid Bereaved.

And states at paragraph 102 and, again, the last couple of sentences:

“[Scottish Covid Bereaved] members consider that an inspector wearing full PPE would not have been a significant risk and could have identified areas of concern in homes in a timely manner.”

What, if any, consideration was given to inspections continuing, but having inspectors subject to or having appropriate PPE or testing available to them? Was that an option which was considered?

Mr Kevin Mitchell: At that particular time, one of the difficulties that we encountered was that the services themselves were struggling to get sufficient supplies of PPE, and we ourselves had no supplies of PPE, and in fact, we only obtained our first supplies just towards the last week in April of that year. So again, that, perhaps, is one of the lessons we would have for the future: that we should perhaps, whilst recognising the importance of prioritising frontline services for PPE, both health and social care services, we perhaps should have been a bit stronger in making an argument for being supplied with PPE ourselves much quicker than we were.

Counsel Inquiry: And if I may follow up, then, just on the second limb of that, it was PPE and testing. When did testing become available to Care Inspectorate inspectors?

Mr Kevin Mitchell: We were not prioritised for either PPE or testing. The priority initially directed by Scottish Government was, understandably, the frontline services, health and social care. There was limited testing in the initial stages of the pandemic. What I did manage to do, learning from that, was I managed to get us prioritised for vaccinations as the same priority as frontline professionals in the December of that year. But again, perhaps with the benefit of hindsight and learning, we should have made a stronger case to be prioritised for PPE and testing as we subsequently did, as I subsequently did, for the vaccinations.

Counsel Inquiry: On the making of any type of case, then, in March 2020, did you or the Care Inspectorate raise the issue with Public Health Scotland or the Scottish Government saying, “We should be prioritised” in March 2020?

Mr Kevin Mitchell: I’m not aware of us making as strong a case as we should have done. I think we – our role at that time was trying to help the services themselves, some of whom didn’t have sufficient supplies of PPE, were not changing enough, and some who were struggling completely to get suppliers. So we were the conduit and had a team that we established, a team that we called the Flexible Response Team, and we, through our daily and – weekly and sometimes daily contact with care services, we were establishing what supplies they had, if they had sufficient, if they didn’t or didn’t have enough, we used those members of staff and the pathways that had been known to us to try and get those services prioritised.

So I suppose our focus, like everybody else, was on the frontline services and we perhaps didn’t think enough about ourselves.

Counsel Inquiry: And then just so I’m clear, when did regular testing become available to care inspectors?

Mr Kevin Mitchell: To be honest, I couldn’t recall the actual date but it was many months, a good number of months down the line, from frontline staff, because as I say, there was limited testing available.

Counsel Inquiry: And even departing, then, from the issues of PPE and testing, would the risk posed by a single inspector or a small inspection team attending at a home in the absence of visiting, would that not have been appropriate to guarantee oversight?

Mr Kevin Mitchell: I think if we, with the benefit of hindsight, if we had, and what we know now which we didn’t know them, in terms of our understanding of the virus, I think if we had adequate supplies of PPE which we didn’t, but if we did have adequate supplies of PPE, that would have been sufficient. And clearly we would have to comply, because again, whatever we might feel we would want to do, we were restricted by the views of Public Health Scotland who were very concerned about any proposal for us to inspect, and indeed the first occasion I proposed an on-site inspection in April, 3 or 4 April, that request was refused or it wasn’t agreed to, put it that way.

Lady Hallett: Mr Mitchell, I totally understand the importance of maintaining inspections if one can, and how, if your inspectors had had proper PPE they could have continued. I think one of the problems I’ve got with prioritisation is it’s so difficult for the person who has to decide who gets priority. I think you –

Mr Kevin Mitchell: Yeah.

Lady Hallett: – you’ve partly acknowledged that in your evidence.

Mr Kevin Mitchell: Yes, I think that’s absolutely the case, my Lady. I think I had some sympathy because the supplies were limited not just in Scotland, but throughout the UK, and clearly it’s very understandable that you would prioritise those to frontline staff, those nurses and doctors in hospitals and the care staff in care homes, and providing care at home, domiciliary care. I think it’s perfectly understandable. And it would go somewhat against the grain for us to push so hard to try to get that for ourselves. But I think, with the benefit of hindsight, and perhaps, you know, an environment where we’d have easier access to PPE in the future, I think there would be a responsibility on us to ensure that we thought about ourselves as well as the frontline workers.

Lady Hallett: Does that not go back, really, to the point that, because we were so ill prepared, we didn’t have a test and trace system that you could scale up, we didn’t have facilities to manufacture PPE in the UK sufficiently quickly. I mean, it all goes back to being properly prepared, doesn’t it?

Mr Kevin Mitchell: I think that would be the root cause, my Lady. I would agree with that.

Mr Beech: Thank you.

Lady Hallett: Sorry to interrupt.

Mr Beech: No, no, thank you, my Lady.

Perhaps if I move on, then, and we just have a brief discussion about perhaps some of the mechanisms which Care Inspectorate put in place while inspections were not taking place.

And if I could refer to INQ000320177, and specifically page 3.

This is a report prepared by the Care Inspectorate entitled “[CI’s] role, purpose and learning during the Covid-19 pandemic”, and was published in August 2020.

If we focus on the left-hand side column here, and starting in the third paragraph, they set out that:

“… inspection is just one element of [Care Inspectorate’s role] and far from sitting back, we intensified our oversight of services and rapidly put in place a raft of robust measures …”

I’d just like to discuss some of those measures with you.

In the fourth paragraph then, the Care Inspectorate outlines there have been “increased levels of contact”, “contacting every home weekly … and sometimes daily” between 1 April and 26 July 2020.

These contacts, were they made by inspectors themselves?

Mr Kevin Mitchell: They were, yes.

Counsel Inquiry: And in terms of these contacts – or phone calls, I assume we’re talking about, is that fair?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Yes. Were they simply to monitor and provide support or were they performing some type of regulatory oversight function?

Mr Kevin Mitchell: I suppose it was both. They would contact the care services at least weekly, and sometimes daily, if particular risks were identified.

There would be various things that they would do. They would check that they had sufficient supplies of PPE, as I’ve already said. They would make – they would consult with others to get them supplies of PPE if they didn’t. They would check the services and the manager and the staff’s understanding of the latest guidance, whether they had access to the latest guidance on infection prevention and control, on social distancing, and they would check to ensure that they had that and were following it and gaining assurance that they were following it.

They would discuss with the service any notifications that we had received from them. We have an electronic system where the services send us notification about a range of things, from a change of manager, notification of a death, notification of an accident, a fall, a medication error. So if we had received in this case particular notifications about infection outbreaks, or indeed deaths, we would discuss those with the service in those contacts and make sure they had the staff that – either had sufficient staff.

And if there was any deficiencies in any of that, we would seek to provide them with the guidance. We would help them understand it and signpost them, or indeed, if they were needing support from the local health and social care partnership, we would make sure that that happened.

Counsel Inquiry: Before we move briefly then on to the enhanced notifications that you’re talking about, these calls and these contacts, could they in any way replace the oversight or assurance provided by on-site inspections or were they even intended to?

Mr Kevin Mitchell: They would never do all that an inspection would do, but they certainly, I think, were as much as we could do in the circumstances, and they certainly proved beneficial and we received quite a lot of positive feedback, including from a member organisation, Scottish Care and Dr Macaskill, who acknowledged the support that those calls actually provided, but they would never replace an inspection.

Counsel Inquiry: If I may move on, then, to the fifth paragraph on the screen here, where the chief executive is talking about the early warning system of enhanced notifications put in place:

“… requiring services to tell us about both suspected and confirmed cases of COVID-19, and staffing levels affected by COVID-19.”

This is the red, amber, green system which you discuss at length in your statement; is that correct?

Mr Kevin Mitchell: Yes, that’s correct.

Counsel Inquiry: And were a service to send in one of these enhanced notifications and it would be flagged red in terms of staffing issues, what action would Care Inspectorate, Scotland, have taken from both a regulatory and a support perspective?

Mr Kevin Mitchell: Yes, we monitored these notifications over the seven-day week, including Saturdays and Sundays, and we made contact, as I’ve described, with those services, particularly those – quickly with those services that had assessed themselves at either amber or red, to discuss the specific situation of that service with the manager and staff. And depending on what we found and what we were told and how we assessed the notification – we were working by this time very closely with the Scottish Social Services Council, who are the professional body that registers individuals who work in social work and social care in Scotland, and we were also working closely with health and social care partnerships, who were geared up to provided clinical and care support. So although we didn’t have the staff to provide those services with, we actually ensured that they got additional support, additional staff, if that was needed, by our liaison arrangements with health and social care partnerships and indeed the Scottish Social Services Council, who had that particular role to identify staff that were needed.

Counsel Inquiry: I may just ask you very briefly, then, on the Scottish Social [Services] Council, and their role. The Inquiry has heard some evidence that perhaps there isn’t a register of care workers across all of the devolved administrations. In this context, is this where the benefit of a register really comes to the fore?

Mr Kevin Mitchell: It wasn’t a role that they had routinely, but it was a role that proved extremely worthwhile during the pandemic because they were able to tap in – whilst they have a register of people who are currently registered to work in social work and social care, they were able to access people who had recently gone off of the register and see if they would be prepared to come back.

And again, I think that was work that they did in conjunction with health and social care partnerships, Scottish Government, and indeed, NHS NSS, which is a special health board who provide support to the NHS in Scotland.

Counsel Inquiry: Thank you.

Now, these enhanced notifications, they’re obviously depending on what the services are reporting back up the line to the Care Inspectorate; is that correct?

Mr Kevin Mitchell: That’s correct, yes.

Counsel Inquiry: There was very little or no objective or independent oversight of –

Mr Kevin Mitchell: We did provide them with a very simple definition that they could use in terms of how they might categorise themselves as red, amber, or green. Clearly, there were occasions where – when we explored it with the service that we didn’t quite agree with their categorisation that they’d given themselves, but by and large they did actually use it and use it well.

Counsel Inquiry: If I may then just return, having outlined these mechanisms which were put in place, to the witness statement of Ms Kilbee, which appears again at INQ000520272, in particular paragraph 100. She sets out that:

“… there were no routine physical in inspections of care homes by the Care Inspectorate, this, along with the lack of GP visits and inability of families to visit due to lockdown restrictions meant that the usual checks and balances were missing.”

Did the lack of routine inspections contribute to – affect a deficit of oversight of what was happening across the adult social care sector?

Mr Kevin Mitchell: There was – there certainly wasn’t the same oversight in terms of on-site inspections by the Care Inspectorate, and we were also aware, and I think government in the fullness of time acknowledged, that there wasn’t the same support from community health services, which included GPs and allied health professionals, and public health nurses, mindful that not all care homes have nursing staff of their own. That clinical support that a care service might have been used to before the pandemic wasn’t there in all circumstances during the pandemic.

Counsel Inquiry: Thank you. I’d just like to move on to inspections, then, restarting on 4 May 2020.

Before I do so, I do acknowledge that you were very intimately involved with this decision, and that obviously it related to concerns arising in a specific home at a specific time?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: I personally don’t think we need to open up the nature of those concerns at this time, but on 4 May an on-site inspection takes place. There had been some engagement with the service in question, the Care Inspectorate and other bodies, and assurance was provided which maybe turned out not to be a hundred per cent accurate.

Does what happened on 4 May and the build-up to it demonstrate that the assurance mechanisms in place weren’t a hundred per cent adequate to protect users of services?

Mr Kevin Mitchell: Yes, I think what you’re referring to there was part of the response put in place on 17 May by the then Cabinet Secretary, and that was termed an oversight assurance arrangement, principally led by directors of public health. And what I think you were – you’re alluding to there is the telephone assessments that –

Counsel Inquiry: Forgive me if I’ve not been abundantly care at all, we’ll come on, of course, to health and social care partnerships momentarily, the point being that, in the build-up to 4 May, you become aware of concerns in a specific home?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Is it not to demonstrate the lack of oversight that those concerns were able to –

Mr Kevin Mitchell: Yeah.

Counsel Inquiry: – fly under the radar, perhaps, for a period of time at least?

Mr Kevin Mitchell: That particular time we were required to get agreement for – from the directors of public health before we went on site. I’d previously, about four weeks earlier, tried to do that in respect of one care home in the west of Scotland, which was at a critical – in a critical position. And when I’d contacted the director of public health then and proposed an on-site inspection, that director of public health came back and told the chief executive the following day that there had been a decision not to go on site and that it would be dealt with by way of a call from the consultant, a director of public health consultant, and that the inspection wasn’t necessary.

So I suppose what I’m trying to say is that we were required to get director of public health agreement before going on site, and whilst I didn’t get that agreement on the 3/4 April, I did get it on 3 May, although it was very difficult and took some three hours back and forth between the director of public health to get that agreement.

Counsel Inquiry: Again, I don’t think we need to go into the specifics, but from your experience of what went on perhaps in April, you say that directors of public health stopped an on-site inspection.

What do you understand was their motivation for that? Again, I don’t need the specifics, just perhaps the general underlying principles?

Mr Kevin Mitchell: I think this was a care home that had – 30 of their staff had been off. That was – it was a large care home. There had been eight deaths. It came to our attention because, actually, the inspector, one of the inspectors was making these phone calls –

Counsel Inquiry: Again, perhaps, I’m very cautious that we don’t want to get too caught up in the specifics.

Mr Kevin Mitchell: Sure.

Counsel Inquiry: Generally, you indicated you were minded to go and inspect homes if there were concerns?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Was it a fear of footfall into care homes you consider that was motivating the directors of public health to maybe just press pause on that?

Mr Kevin Mitchell: I don’t know what – I think they were just very nervous about us going into the care home and preferred to deal with it by way of conversations between clinicians and staff in the care home.

Counsel Inquiry: Okay. Thank you very much.

Inspections restart, then, on the 4th and we get to a situation whereby 11 May, Care Inspectorate is trying to introduce a somewhat more routine arrangement based on, primarily, intelligence and risk.

Mr Kevin Mitchell: Yes.

Counsel Inquiry: And if we could have on screen, please, again referring back to your witness statement, INQ000475130, and in particular table 6 and, forgive me, the time today perhaps doesn’t allow us to explore the intricacies of every policy development, but we have here the number of care home inspections completed between 1 April and 31 March each year.

So we can see in 2019/20 there were 1,129 inspections. That drops to 603 between 2020 and 2021, it’s perhaps maybe not surprising given what we’ve discussed this morning?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: And there’s an increase back up towards over a thousand by the time we get to 2022 –

Mr Kevin Mitchell: Yes.

Counsel Inquiry: – 2023.

There appears, then, to have been a return to almost pre-pandemic levels of inspection.

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Was that a deliberate policy decision of Scotland to try and return to the position it was before?

Mr Kevin Mitchell: One of the things that we did, clearly we didn’t do as many inspections in that period where we ceased inspections for the short time in 2020, but the other significant difference was we, with the support of the Cabinet Secretary, we, when we inspected and found that significant improvements were needed, we followed up by doing further inspections of that same service, not just to check that improvements were made, but to ensure that improvements were not only made but sustained over time.

So what we did was we found ourselves inspecting the same service, two, three, four times in relatively quick succession to get that assurance that as I say, that not only improvements had been made but were sustained over time.

Now that meant, if we were going back several times to inspect a particular service, we couldn’t do as many other services. So that somewhat explains the lower figure, but the intent was to do as much as possible with the resource we had, mindful, of course, that many of our own staff were shielding and had underlying health conditions themselves that prevented them from going out on inspection.

Counsel Inquiry: And this is what you described then as the move to intelligence and risk focus –

Mr Kevin Mitchell: Absolutely.

Counsel Inquiry: – and perhaps more time frames maybe?

Mr Kevin Mitchell: Yeah.

Counsel Inquiry: Before we leave the subject of inspections, I’d just like to give you an opportunity to cover some general reflections, perhaps. So returning back to the perspective of the CQC. In their addendum statement they set out 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 acknowledge that:

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

Do you agree that in the event of a future pandemic, strenuous efforts should be made to try and protect the continuation of on-site inspections?

Mr Kevin Mitchell: I think – I would think that on the basis of what we know now, compared to what we know then, that there would be more consideration given to maintaining those inspections, but it’s difficult to second-guess what the constraints then in the future might be. The constraints around us was, you know, for this pandemic, was the lack of PPE. That was a significant factor, and indeed the constraint imposed on us in order to obtain director of public health agreement.

So again, thinking ahead, it’s difficult to second-guess what constraints might be placed upon us in the future but by and large I would agree that as far as possible, inspections should continue. But there needs to be a balance between the benefits of that inspection against the risks they might pose.

Counsel Inquiry: I’m afraid – I’m not trying to be unfair, and I appreciate it’s impossible to speculate on what a future pandemic may look like, but is there anything practically the Care Inspectorate could do to ensure that that continues in the future?

Mr Kevin Mitchell: I think one of the things I’ve certainly reflected on, is there would be some merit, I think, in mirroring approaches by emergency services to major incident planning, because I think if something similar was done involving the public bodies in Scotland who were part of the pandemic response, there might be a greater understanding of each other’s roles and responsibilities, constraints, that might have been helpful if that had taken place before the pandemic that we had.

Counsel Inquiry: I think we’ve already covered successfully the issue about the role of virtual inspections in the future. But do you consider that there’s need for clear and adaptable protocols setting out what would happen, the use of different types of inspections both fully remote, in-person, and a blend of the two.

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Would it be useful to have clear, adaptable protocols which were reviewed on a regular basis, and perhaps even tying that to this more practical crisis management exercise that you’ve just described?

Mr Kevin Mitchell: Yes, I think it’s important, and we do have contingency planning arrangements of our own which we do exercise, you know, but that’s done on a single agency basis, if you like. But I think for me, the importance of – will always be on wherever possible, carrying out on-site inspections. Yes, we will use, no doubt, technology to support us in that, but the primacy in my mind would be to continue carrying out on-site inspections as far as you possibly can, and obviously making sure that there is an understanding of our role and functions more widely across the other organisations.

Counsel Inquiry: Thank you. If I may move on, then, to just engage with you about Care Inspectorate’s role during the pandemic, and, in particular, its role in relation to a number of other bodies and organisations which exist in Scotland. I really would like to forecast perhaps not on the governance side of it but on the impact on the Care Inspectorate and, in particular, on the adult social care sector.

Mr Kevin Mitchell: Yes.

Counsel Inquiry: And the issue of the role played by the directors of public health, you’ve referenced it a number of times already this morning, and I would perhaps just like to explore that a bit more.

There was a deep dive conducted by the Scottish Government Resilience Room on 14 April 2020 – I don’t think we need the minutes up, but the two outworkings of that relevant to Care Inspectorate were to visit every single care home and to focus on IPC, and to reinstate some inspections.

That was on 14 April, and by 1 May correspondence goes from the chief executive saying, “This has not happened because of concerns on the part of the directors of public health.”

Is that correct?

Mr Kevin Mitchell: That’s correct, yes.

Counsel Inquiry: What I’d really like to just bottom down very briefly before we perhaps just take a break, then, is in terms of the knowledge, the experience of the sector, was that held by Care Inspectorate or was that held by the directors of public health?

Mr Kevin Mitchell: I’m not sure what the level of knowledge or understanding of the care sector would be in public health. Public Health Scotland was a body that was created on 1 April 2020. So –

Counsel Inquiry: I think I’m perhaps – I think it’s poor in terminology, I’m talking more about the directors of public health as opposed to Public Health Scotland and the role they played.

Mr Kevin Mitchell: Sorry, my apologies. The directors of public health, there’s one director in each of the 31 health and social care partnerships in Scotland, so they would, I think, have an understanding of the care sector, because the responsibilities, as I understand them, are around the environmental hazards and infections that might arise in terms of providing preventative guidance and, indeed, in responding to infection outbreaks, so they would have an understanding of the care sector at that local level, and would indeed be responsible for providing advice even around, for example, norovirus prior to the pandemic, so they would have a knowledge of and understanding of the sector.

Counsel Inquiry: You’ve already flagged some of the issues which arose in terms of proposed inspections early in April and perhaps some issues which arose in May then. In your statement you do flag that the involvement of the directors of public health created some degree of ambiguity. I suppose my question is, was enough done on reflection, on the part of the Care Inspectorate, to emphasise to the directors of public health that inspections of care homes were absolutely necessary?

Mr Kevin Mitchell: Yes, there was repeated representation made to directors of public health that, you know, that – that, you know, we would need to inspect perhaps in certain circumstances, but it was quite clear there was a high degree of nervousness about us going on site, and that was, you know, pretty much confirmed at the deep dive exercise that you referred to, where it was, in fact, a bit confusing because in one respect it said that all care homes should be visited and then in the same document it said some care homes would be visited, but it made very clear that no visit could take place unless under the clinical direction of the directors of public health.

Counsel Inquiry: If I may ask you this final question in this subject, the need to get that approval from the director of public health, was that a positive overall or did that add a further layer of complexity to the process which perhaps at times may have inhibited Care Inspectorate from taking the action they felt necessary?

Mr Kevin Mitchell: I think we were keen to leave an option open for us to go against public health. We felt we wanted to have that option, if necessary, but, to be honest, it was – it would have been a difficult – we didn’t in fact do that and go against public health advice. If we did, that would have been quite a serious situation, potentially in terms of liability and responsibility for us, but it was one that we left the option open, but it was never used.

Mr Beech: Thank you.

My Lady, I don’t know if now might be a convenient time to take a break.

Lady Hallett: Yes, of course, Mr Beech.

You were warned I suspect, Mr Mitchell, that we take breaks but I promise you we will finish your evidence before lunch.

Mr Kevin Mitchell: Yes, thanks, my Lady.

Lady Hallett: I shall return at 11.40.

(11.22 am)

(A short break)

(11.40 am)

Lady Hallett: Mr Beech.

Mr Beech: Thank you, my Lady.

Mr Mitchell, if we may return to just discussing the Care Inspectorate’s case management with a number to different bodies and structures across the adult social care sector in Scotland.

There was a directive received from the Scottish Government on 17 May which led to the Care Inspectorate becoming involved in what are known as care home clinical and care oversight groups.

Now, I appreciate that that terminology perhaps evolved a bit over time, but this was working with health and social care partnerships, and part of that role was to involve assurance visits to services, or to begin – where oversight groups were to hold daily discussions.

On assurance visits, were they inspections, in terms of Care Inspectorate’s role, or were they something completely different?

Mr Kevin Mitchell: I have no doubt that the guidance was intended to provide clinical and care support to all the care homes, but I think some of the wording in the letter from the Cabinet Secretary and the associated guidance was perhaps confusing and I think did cause some people to think that it was a secondary form of inspection, and indeed that subsequently proved to be the case, and some areas responded I think as was intended, and others were more in an inspection role, which was effectively duplicating our responsibilities.

Counsel Inquiry: If I may perhaps explore this issue with reference to the evidence from a witness statement from Dr Macaskill, of Scottish Care.

And if I could have, please on the screen INQ000509530.

And if I could start at paragraph 128, Dr Macaskill has considerable comment to make on this issue but if I can try to boil it down to its constituent elements, he said that this “led to considerable confusion within the sector”.

Then on to, and I believe it’s the next page, at paragraph 130, he sets out that:

“This led to a clinical approach to care homes from practitioners often did not have the experience to take into account the nuances of the context …”

And specific examples there are given of, in effect, residents’ personal effects being taken away in case they presented an infection risk.

Do you accept and agree that this layer and structure, these assurance visits, led to considerable confusion within the sector?

Mr Kevin Mitchell: I would describe it as an inconsistent response, because some health and social care partnerships did exactly what was intended, but others didn’t. I think it was the use of words such as “assurance”, basically in – that caused some areas to think that they were expected to do an inspection. And indeed we know that some areas actually awarded grades and made recommendations, but I think it would be wrong to say that all areas did that, but it did lead to some confusion. And indeed that was acknowledged by Scottish Government, who put out further guidance towards the end of that year, in December, which clarified their expectations.

Counsel Inquiry: And that was guidance on 14 December. What year was that?

Mr Kevin Mitchell: That was 2020, to clarify it. But again, it was only – it was two years later before they eventually changed the name to reflect more of the role that was expected.

Counsel Inquiry: So there was clarification put out in 2020, and then kind of the final –

Mr Kevin Mitchell: It was still causing some confusion, and there was a final change made in 2020, and I think that was correspondence that was in the name of the government’s Chief Social Work Adviser.

Counsel Inquiry: Final correspondence in December 2022, just to be clear?

Mr Kevin Mitchell: Yes.

Counsel Inquiry: Going beyond, perhaps, confusion, at paragraph 132 Dr Macaskill outlines how, having surveyed Scottish Care’s members, or conducted research, it was noted considerable harm had resulted from such a confused oversight and crude model being imposed on the sector. He talks about there being a significant reduction in staff morale as a result of these arrangements.

Do you accept or can you acknowledge that this did lead to difficulties for the workforce?

Mr Kevin Mitchell: I think there were difficulties for the workforce in – on some occasions we found that messages that we gave were contradicted by some of the oversight arrangements. There was, in some instances, what we would term inappropriate responses in terms of infection prevention and control, and that was perhaps as a result of applying clinical standards in a care home and forgetting that actually a care home should be a homely environment. And whilst, of course, care homes should adhere to certain levels of infection prevention and control, when it comes to residents having soft toys, soft furnishings, soft – you know, they place a lot of emphasis on, particularly if they’re living with dementia, for those to be taken away from them, rather than the focus being on cleaning regimes, I think that did cause some difficulty, and did cause some distress to staff.

Counsel Inquiry: And just again, as a general reflection, was this additional process, these assurance visits – on reflection, was that a positive or was it another layer of ambiguity or confusion to the –

Mr Kevin Mitchell: I think where it worked well, it was positive in as much as it provided and ensured that those care homes received clinical and care support from, for example, GPs, allied health professionals, public health nurses, and indeed, from others within the health and social care partnership. But it’s fair to say that where the guidance was misinterpreted it did cause some difficulty for us, for the providers and indeed for the staff in those services.

Counsel Inquiry: And was there a role for the Care Inspectorate where the guidance, as you say, was misinterpreted, to escalate those concerns to the Scottish Government to ensure that the guidance was being properly applied?

Mr Kevin Mitchell: Yes, absolutely. In each and every case, particularly in those areas where we found that the arrangements that the partnership had put in place had given contradictory messages to our own, we made sure that we sat down with those individuals and talked them through the reasons for what we did and how that differed from what they did and the reasons behind what we did. And we usually managed to achieve an understanding but I think it was primarily because the individuals were applying clinical standards in a care home which is – it’s important they adhere, as I say, to certain standards of infection prevention and control, but it’s not the same as a clinical environment of a hospital, for example.

Lady Hallett: If you have clinical teams supporting, just putting to one side the confusion about the wording and confusing it with your role.

Mr Kevin Mitchell: Yes.

Lady Hallett: But if you have a clinical team visiting a care home to support and they don’t understand, the kind of point you made about the importance of soft toys for a dementia patient or something of that kind, how did you – where you say you had success in the care homes that followed the guidance as it was meant to be, but why didn’t the same issue arise there, with the clinical team, trying to impose clinical IPC measures inappropriately on a care home?

Mr Kevin Mitchell: I suppose it depends, my Lady, on the individuals who were doing that work. They may have had different experiences. You know, we have nurses who are employed in care homes. Some may have gone on to work in health and social care partnerships and indeed vice versa. So I think again, it was the guidance, but perhaps there was different levels of professional knowledge and understanding of individuals who were tasked with that particular role. That would be the only reason I could think of explaining that.

Lady Hallett: Thank you.

Mr Beech: Thank you, my Lady.

Can I then move on to inspections undertaken alongside Healthcare Improvement Scotland. And again, this all arises from the same direction from Scottish Government of 17 May 2020. It leads to Healthcare Improvement Scotland participating in around 30% of inspections before the arrangement finally came to an end on 9 April –

Mr Kevin Mitchell: Yes.

Counsel Inquiry: – 2021. Prior to the pandemic, were Healthcare Improvement Scotland involved in inspection of adult social care services?

Mr Kevin Mitchell: They have never been involved, prior to that, with our regulated care service inspections although we do undertake strategic inspections on a joint basis with not only Healthcare Improvement Scotland but with the Education Inspectorate and the Police Inspectorate.

Counsel Inquiry: This was a relatively new phenomenon, then, in this context?

Mr Kevin Mitchell: Yes, for regulated care, it was.

Counsel Inquiry: What were Healthcare Improvement Scotland to bring to these inspections which Care Inspectorate couldn’t?

Mr Kevin Mitchell: Initially it was ourselves that asked for support from Healthcare Improvement Scotland and that was as early as the March of 2020 when we asked them to help with the telephone contact arrangements with care homes, and we started to use the staff from Healthcare Improvement Scotland on inspections from about the beginning of May in fact, just after the first inspection of the care home that led to the recommencement of inspections. And the guidance that came out, when it came out, we’d actually already started, just started using them on inspections, but they had limited resource themselves and that was the reason that they could only undertake about a third of inspections.

Counsel Inquiry: Just forgive me if I’ve missed it. Very briefly, what perspective were they to bring to these inspections?

Mr Kevin Mitchell: To be honest, many of them had no greater or lesser knowledge than our own staff because many of our own staff have nursing backgrounds themselves. So they were very much working collaboratively, and making a very valuable contribution to the general approach to inspection, as indeed, and in the same way as our own staff were. It’s just that they hadn’t hitherto been used to inspecting regulated care services.

Counsel Inquiry: I appreciate, then, by the time we get to 9 April 2021 there’s a need to clarify the position that inspections are the realm of the Care Inspectorate. But earlier then, on 21 December 2020, the Scottish Government made a request or sent correspondence that all inspections going forwards should be carried out jointly with Healthcare Improvement Scotland and must focus on the physical care needs for the residents.

Was it appropriate that Healthcare Improvement Scotland would be involved in all inspections going forward?

Mr Kevin Mitchell: I think, again, that was probably something that resulted from a misunderstanding of our role, and the fact that we had, I think at that time, around 60 nurses who were inspectors working for the Care Inspectorate. And the quest for HIS to become involved in all inspections just wasn’t achievable because they just didn’t have any more staff to give us other than the staff they gave us which resulted in approximately one-third of inspections they were able to accompany us on.

Counsel Inquiry: In answer to my previous question, then, you said in reality these staff from Healthcare Improvement Scotland had as much or the similar set of skills and experience – (overspeaking) –

Mr Kevin Mitchell: In many cases, yes. I think that perhaps there was a misunderstanding that the staff we employ as inspectors, some of them have strong backgrounds as, perhaps, managers of care homes but others have nursing backgrounds and I think perhaps that wasn’t understood.

Counsel Inquiry: I suppose to ask you a familiar question, then: these inspections with Healthcare Improvement, did they add anything, or were they just another layer of process which perhaps maybe interfered with the Care Inspectorate discharging its statutory functions?

Mr Kevin Mitchell: No, it was certainly helpful because it allowed us to get around more services than we might otherwise have been able to, because if we were, for example, inspecting with two inspectors, if we hadn’t had one from Healthcare Improvement Scotland with one from our own organisation, we’d have had less to go round and we would have covered less, in terms of the number of services we inspected.

Counsel Inquiry: You’ve outlined on a number of occasions this morning that there’s perhaps a misunderstanding on the part of Scottish Government as to what exactly Care Inspectorate did and who exactly was employed by Care Inspectorate.

In terms of the impact of all we’ve discussed, what was the impact, then, of Scottish Government’s perhaps misunderstanding, in your opinion, of your role?

Mr Kevin Mitchell: I wouldn’t say there was – everybody in the Scottish Government didn’t understand. We had very close arrangements with some parts of Scottish Government who do understand fully our role. I think we were engaging during the pandemic with parts of Scottish Government that we weren’t used to engaging with. For one, that would be the Chief Nursing Officer’s directorate.

Now, again, there was, I think, a suggestion, for example, that they needed to provide us with staff because it was important that we inspected the health needs specifically of individuals in care homes, perhaps not realising that we’d done that for a number of years before the pandemic. Inspecting health needs as well as the broader care needs of an individual was something we were well used to doing, and I think that perhaps wasn’t fully understood by all.

Counsel Inquiry: And as I say, the Inquiry’s certainly forward looking, it would be keen to ensure systems worked better again in the future. So how could any misunderstanding or ambiguity across all these bodies, directors of public health, Care Inspectorate, Healthcare Improvement Scotland and health and social care partnerships be avoided in the future?

Mr Kevin Mitchell: I suppose rather than tackling each of those individuals’ individual areas, that was what probably led me to reflect on how it might be helpful to mirror what emergency services do by exercising, so that you can develop those relationships, those understanding – understanding of respective roles and responsibilities, the interoperability of individual contingency plans, without waiting for the actual incident, in this case the pandemic, to happen.

So, again, I think the understanding of each other’s roles, responsibilities and limitations is critically important, and that’s best done sooner rather than later.

Counsel Inquiry: Thank you.

Perhaps if we can move on to a couple of discrete topics, and again, perhaps the best way to view this from might be from the evidence of Dr Macaskill.

So if we could have on screen, please, INQ000509530, page 35, and paragraph 136, please.

You set out across your statement that during the pandemic, the Care Inspectorate took on a greater role with regards to IPC. That came from both the deep dive and from legislation which was passed in the form of the second Coronavirus Act.

Dr Macaskill sets out that:

“… there was a considerable deterioration in the working relationship between providers and [regulators] …”

And one of those factors was this increased focus on IPC.

And then moving on, and forgive me, it’s on the next page again, at paragraph 137, he states that:

“Prior to the pandemic the Care Inspectorate had moved to a regulatory model which involved collaboration and engagement … However, during the pandemic providers felt that it was increasingly focused on scrutinising the sector …”

Do you accept that this increased focus on IPC led to, in effect, a lack of support to the sector, which was replaced with more of a critical eye?

Mr Kevin Mitchell: I don’t think what is said there is entirely accurate, because the inspections that we undertook were not entirely focused on IP. Indeed, by that time, in response to emergency legislation that was enacted on 29 May 2020, we were required to report to Parliament every two weeks the inspections we’d undertaken. And we were specifically required to focus on infection prevention and control, staffing, and PPE. And we actually included from the outset what we would refer to as the wellbeing indicator, so that we could report on wider wellbeing, because we thought that was important to do that. So it wasn’t entirely correct to say that they focused simply on PPE.

And whilst I don’t disagree that it was the right thing to do, it was a requirement of that emergency legislation.

And I think what perhaps is alluded to here is that services felt our contact arrangements in the periods that we weren’t inspecting were quite helpful, but of course our primary role is to provide independent assurance, and yes, for those services where we were highlighting significant failings, I’ve no doubt they weren’t perhaps too pleased with us doing that, but that was what our role and function is, and so I think part of what Dr Macaskill says in his evidence there is correct, but others – other parts are not.

Counsel Inquiry: If I may briefly, then, just deal with these Parliamentary reports. And again, we’re going to keep within the prism of Dr Macaskill’s evidence. And forgive me, I’m jumping back now to page 136 or paragraph 136. And another one of the factors, he says, which led to this deteriorating relationship.

He talks about the reports to Parliament, and he says at paragraph 136, 1.2, in practice these reports were often submitted – I assume that means to submitted to Scottish Parliament – before the findings were reported to providers.

Is that a phenomenon you were aware of?

Mr Kevin Mitchell: No, that’s not correct. What happened was that these reports, the inspections in the reports, by virtue of the legislation that was enacted, were required to be reported within two weeks, and that was a much tighter timescale than our normal reporting processes.

But what we did was we ensured, as far as we possibly could, that our inspectors produced a summary of their evidence, their findings of inspections, within 24 hours of the inspection, and they shared that with the service, with the manager, immediately.

What I think perhaps I alluded to here is that we have a process in our normal reporting which is called error response, where individual services can challenge the findings, and we weren’t able to do that because that – the timescales for the fortnightly reporting wouldn’t allow it. But we did provide the summary of the feedback within 24 hours.

Counsel Inquiry: If I could turn briefly then to an issue of data, which is that in late 2020, and you set this out in your statement at paragraph 92, you were provided to access to what was called the safety huddle tool, and you outline in your statement that you raised strong concerns from the outset that there, in effect, was a duplication of data provision, and that would impact on care service providers.

Mr Kevin Mitchell: Yes.

Counsel Inquiry: What impact were you concerned about on the part of care service providers?

Mr Kevin Mitchell: The fact that, again, well intentioned as it was, there was no doubt that there was duplication on the part of the care services. For some things they had to report – report to us. They were also asked to report to the health and social care partnership. And in respect of the daily huddle tool, they were required to input the same information to that, that particular tool.

I suppose what we tried to do was we tried to reduce as far as possible, but we couldn’t stop, for example, the notifications that services had to make to us, because that’s a requirement of legislation and regulations, and if we take action, a regulator enforcement action, we have to often cite the notifications that services make to us, or indeed the absence of notifications that they should make to us. So it wasn’t something that we could dispense with although we were very sympathetic to the duplication that was obviously happening.

Counsel Inquiry: Then, perhaps, before I just move to some general reflections on your part, in terms of domiciliary care, I think they’re called support services under the legislation, you set out in your statement that a limited number of inspections of domiciliary care agencies took place.

In particular, if we could have, please, INQ000475130, and paragraph 577, please.

You set out here that:

“Between 1 April 2020 and 31 March 2021 we carried out 657 inspections of regulated care services …”

And if we break that down, 18 – or 16 of those inspections were for care at home services. And 28 were for combined housing support and care at home.

Why were the numbers of inspections of domiciliary care agencies or support services so limited?

Mr Kevin Mitchell: There was no doubt that was a decision we took ourselves in terms of the resources we had. We had limited resources. Initially in the April/May of 2020, we only had 17 of our inspectors available to inspect. That number increased as time went on, but the priority determined by ourselves and in consultation with government was on the care homes, because of the risks that were there in respect of those services.

There were similar risks in care at home services, and we did an inquiry piece of work that we reported on in the September of that year, although it didn’t involve inspection visits we did a number of – we did a report an inquiry which focused on 300 providers and –

Counsel Inquiry: And I can see that reference to that in your report but I suppose just on reflection, you’ve used the word “priority” there, was appropriate priority given to domiciliary care and support services during the relevant period?

Mr Kevin Mitchell: I think, given the risk profile of the care homes and what was happening in care homes in relation to infections, outbreaks, and indeed deaths, I think the priority, it was right to prioritise the care homes and be mindful that we weren’t just inspecting but we were going back two, three, four, sometime five and more times to make sure improvements were not only made, and sustained.

So that was quite a significant commitment to a service type that we would normally only undertake one inspection on. And it had to be at the expense of something else.

Counsel Inquiry: Just so I’m perfectly clear, the expense you’re talking about was of oversight assurance and support for domiciliary care; is that correct?

Mr Kevin Mitchell: Not just domiciliary care, but all the other service types, as well, the priority was to inspect those highest risk services, which happen to be care homes.

Counsel Inquiry: May I explore very briefly, then, just a couple of the recommendations you set out at the end of your statement.

If we could have INQ000475130, page 177 and paragraph 656.

There’s a series of bullet points here, and the third one you say that one of the learnings was to pay “closer attention to the design of the buildings in which people live to keep them in safe but in homely environments.”

And subsequently, the guidance used in registering care homes was amended to reflect some of the learnings from the pandemic.

Why was it important that there was some focus placed on the physical infrastructure, if I may call it that, as a result of the pandemic?

Mr Kevin Mitchell: The design guidance is intended for those planning or building UK care homes or substantially renovating existing priorities, but what we learned from the pandemic about infection prevention and control, about ventilation, fresh air, it is possible to design care homes better to take account of those. So for example, in a large care home, small group living is better. So creating spaces, if you like, that can be used to cohort both staff and residents, if there’s an outbreak, is helpful. But if the building is designed to accommodate that, it’s even more helpful.

So whilst the obvious was designing in and making sure, for example, communal areas could be much more easily managed in a pandemic, it was also important to think of the wider context of new builds and existing properties.

Counsel Inquiry: Thank you. If we can then just return to the Care Inspectorate’s regulatory role over the page at 178, the fourth bullet point from the bottom, you set out:

“[The] regulation needs to be responsive to the needs of the sector and, where improvement is needed, support is provided and followed up quickly to ensure improvement is achieved and sustained.”

I suppose as a final question, specifically with regard to your role as a regulator, what, if any, recommendations or improvements could be made to ensure that in the event of a future pandemic, the Care Inspectorate could perform its role as best as possible?

Mr Kevin Mitchell: Yes, I think the care at home, the domiciliary care, is a really important one, because I think there needs to certainly be investment in care at home to ensure that people, older people in particular, don’t remain in hospital longer than is necessary. And that means that they need to have care at home or in a care home. So – and that – if they remain in hospital after the period where they’re deemed clinically fit to be discharged but can’t be discharged, that’s preventing other people.

So I think there’s the investment that’s needed, but in terms of the risks, I think we need to also think about balancing the risks that a pandemic poses to individuals better with individual needs, choices, rights, human rights, and wishes, and trying to do that in a better way.

I think, in terms of Scotland, the importance of visiting, even during a pandemic, has been addressed in recent legislation that’s awaiting Royal Assent, but that was a really important factor as well, and hopefully that it’s now in place will deal with that particular issue that arose during the pandemic about the access to loved ones, particularly essential visits at end-of-life, or for those experiencing distress, perhaps living with dementia.

Counsel Inquiry: Just specifically with regard to regulation beyond what you’ve described already about the crisis management and the importance of on-site inspections, is there anything else you would like the Inquiry to note at this stage?

Mr Kevin Mitchell: We’ve also spent two full days looking at learning for ourselves, because I think that’s also important. Some of the things we did well, we think we could do better, and there’s things, like some of the strategic meetings we attended, we could do better in terms of ensuring continuity of representation from ourselves and indeed recording and retention of what is discussed in a central repository.

So there’s a lot of learning for ourselves and there’s a lot of learning that I’ve outlined as best as I can in the statement for the sector, but we can’t forget the learning for ourselves as well.

Mr Beech: Thank you very much, Mr Mitchell.

Thank you, my Lady, I have no further questions.

Lady Hallett: Thank you, Mr Beech.

Ms Mitchell. Ms Mitchell is over here.

Questions From Dr Mitchell KC

Dr Mitchell: Mr Mitchell, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved. I’m obliged to my learned friend Mr Beech who has already covered a number of issues, particularly in relation to the evidence given by Mr Macaskill to this Inquiry.

In your statement you advised that the Care Inspectorate had no involvement in the discharge of individuals from hospitals to a care setting. As a strategic organisation that advises on the impact of policy, what, if any, advice did the Care Inspectorate give on the impact of this policy to care homes?

Mr Kevin Mitchell: The issue, as I understood it, came to light iteratively during the pandemic in terms of the discharge that, you know, from individuals in hospital to care homes, and we saw the impact of that through the increased number of deaths.

Our role – we don’t have a role in the individual decisions for discharge. That’s first and foremost a clinical decision by the GP or consultant. They do liaise with social work services, which are the domain of the health and social care partnership, and that’s primarily to assess the needs of the individual upon discharge.

I think one of the difficulties that I’ve already alluded to was the unavailability in many cases of domiciliary care, care at home, or a care home place. But that – those individual decisions are not ones that the Care Inspectorate are involved in.

Dr Mitchell KC: Indeed, and I understand that. That’s why it was prefaced in my question. But what I was looking at is asking whether or not the Care Inspectorate gave policy advice –

Mr Kevin Mitchell: No.

Dr Mitchell KC: – to care homes?

Mr Kevin Mitchell: No, there is general admissions guidance to care homes, and it’s made very clear to care homes that they should only take on residents, admit residents whom they have the ability to provide care for. So, for example, if they don’t have nursing care, they shouldn’t obviously take on an individual who requires nursing care on a 24-hour basis.

But in terms of discharge from hospital, it’s entirely the responsibility of the care home, the individual care home, to decide whether they can meet the needs of the individual upon discharge and upon admission to the care home. But beyond the general advice, we didn’t give any particular advice, nor were we asked to, during the pandemic, at that particular period.

Dr Mitchell KC: Well, the duty to ensure the safety and wellbeing of all persons who use – are eligible to use a care service are to be protected and enhanced is the role of the Care Inspectorate. Was the discharge of untested patients from hospitals to care homes consistent with ensuring the safety and protection and wellbeing of people using care home? Care was paramount?

Mr Kevin Mitchell: We understood, on a daily – we understood that, in the UK – throughout the UK, in Scotland and England, we heard daily that the decisions that the Scottish Government and indeed UK Government were taking were based on the best clinical advice and guidance. That was clinical advice and guidance far in excess of what we ourselves would have access to.

So our assumptions, when decisions were being made by government, particularly those where we weren’t consulted, was that they had access to the advice that they – the best clinical advice, and that they took the decisions they took on that basis.

If we had been made aware of such a policy decision being made, we might have given a view, although it’s difficult, if I’m being honest, to see how we would have given a view against the best clinical advice that government said they had on a daily basis.

Dr Mitchell KC: Given that the statutory duty was on you, should you have been in the room when these questions were being asked and answered? Because at the end of the day, it’s the Care Inspectorate’s job to ensure the safety and wellbeing of persons using care.

Mr Kevin Mitchell: The primary responsibility for the providing care is the care service itself. The placing partnership in Scotland, health and social care partnership, have a duty of care. Our job is to provide independent assurance of the quality of that care and the safety and protection in the service. So, again, it’s not a decision we were involved in.

There were a number of decisions we might have expected to have been asked about. I know in – I understand that in England our colleagues were asked specifically for their opinion. In Scotland, we were not.

Dr Mitchell KC: So if – going forward in terms of recommendations, ought you to be involved in that process and ask those questions about particular implementations of – (overspeaking) –

Mr Kevin Mitchell: I think based on what we know now, as opposed to what we knew then, I think we would certainly expect to be involved in such a decision in the future.

Dr Mitchell KC: Moving on. In your evidence that you said you required the director of public health agreement for visits in March and April of 2020, was the requiring of this agreement by the director of public health consistent with the discharge of your statutory duty as the Care Inspectorate?

Mr Kevin Mitchell: It was very clear to us that we were not allowed to act unilaterally. That was a decision that was made very clear following the deep dive that was chaired by the First Minister.

In terms of our responsibilities, we have responsibilities, but it’s a very difficult decision to go against the advice of Public Health Scotland, who are the experts in infection prevention and control.

We did, as said earlier, maintain a policy position reserving the right to do so, because we thought that was important, but we never actually exercised that.

Dr Mitchell KC: So, ultimately, the responsibility of whether or not to enter the home and to inspect it fell to the Care Inspectorate, not to the director of public health?

Mr Kevin Mitchell: We have power of entry to a care home at all times in Scotland, and those are legally enforceable. But the advice, the strong advice we had from Public Health Scotland and individual directors of public health was not to do that. We reserved the right to go against that.

And indeed, I was prepared to do that on 3 May, but managed to get that advice. But that was the closest I got to going against the advice, was in respect of the 3 May inspection that we talked about.

Dr Mitchell KC: Yes, and we covered that in your evidence-in-chief.

I wonder, then, if I could move on to another issue, and that is Mr Macaskill, a final issue that he raised. In his statement, Mr Macaskill described members of the care home staff as reporting a sense of clinical abandonment with difficulties in accessing GPs or GPs refusing to attend care homes.

First of all, he said that it appeared that there was a presumption against external visits by GPs. Was the care home inspectorate, firstly, aware of this issue?

Mr Kevin Mitchell: I think this was the inconsistent response that resulted from the Cabinet Secretary’s direction of 17 May. It was applied inconsistently and, as the subsequent clarification in the December of that year confirmed, there was an inconsistent approach resulting in what you’ve just described. In some areas, that clinical support from the community, from – whether that be allied health professionals or indeed public health nurses, did not take place. But in other areas, it did take place.

Dr Mitchell KC: What was the Care Inspectorate’s role in ensuring that such a policy, if it was being applied, wasn’t applied? Ie, should the Care Inspectorate have done something as soon as it became aware of it?

Mr Kevin Mitchell: So when we did find services where – that weren’t getting that support, because by that time, remember, we were out in inspecting again from 4 May, where we did find that support lacking, we escalated it to the health and social care partnership to ensure that it was put in place. And indeed, the government were aware of that inconsistency and clarified that.

We reported – also when we found failings, we briefed government on those significant failings as soon as we identified them, and that enabled the government to liaise with the relevant health and social care partnership through the Office of the Chief Nursing Officer’s directorate in Scottish Government. So that was how we fulfilled our role going forward.

Dr Mitchell KC: And you explained about that from 4 May, but what I’m talking about is the period of time earlier than that, as well. What about the period of time before 4 May? Were you aware that GPs weren’t going in and visiting –

Mr Kevin Mitchell: We weren’t aware of that prior to the 4 May, no.

Dr Mitchell: My Lady, those are our questions.

Lady Hallett: Thank you very much, Ms Mitchell.

Ms Morris.

Ms Morris is just there.

Questions From Ms Morris KC

Ms Morris: Thank you, my Lady.

Mr Mitchell, I ask questions on behalf of the Covid Bereaved Families for Justice UK. Just to return briefly to the topic of the discharge of untested patients from hospital to care homes, please.

In your witness statement you refer to an answer in Scottish Parliament by the former First Minister Nicola Sturgeon on 27 May in which she admitted that patients should not have been discharged without testing and she claimed:

“The Care Inspectorate ensures that any concerns about care homes are considered.”

You comment that this was factually incorrect, and open to misinterpretation. Can I ask you briefly to expand on what you mean by that? And then my second question is whether that’s another example of the Scottish Government not understanding properly the roles and responsibilities of the inspectorate?

Mr Kevin Mitchell: Yes, I suppose the statement that you’ve just read out, I thought was rather odd, because the first half, as I recall, was about saying that the individuals should not have been discharged from hospital into a care home without negative tests, and the reference to the Care Inspectorate didn’t make any sense to me in that context, because obviously I’ve outlined what our responsibilities were in that respect.

I thought it was also because the guidance at that time, which was quickly amended, was that they didn’t need a test, but of course we know now that the guidance was amended to require two negative breath tests – negative tests before discharge, so I thought it was rather odd, and if I’m being honest, the statement about the Care Inspectorate didn’t seem to join with the previous sentences.

Ms Morris KC: Because you weren’t involved in the decisions, you said?

Mr Kevin Mitchell: We weren’t involved in the decisions and it just seemed ambiguous.

Ms Morris KC: But was it another example of the Scottish Government not properly understanding the role of the Inspectorate in this particular policy context?

Mr Kevin Mitchell: Perhaps in this – I wouldn’t like to say that broadly about everything, but in this particular context it seemed to be unclear what our role was in terms of discharge arrangements from hospital.

Ms Morris: Thank you.

Thank you, my Lady, those are my questions.

Lady Hallett: Thank you, Ms Morris.

Mr Straw.

Mr Straw is over there.

Questions From Mr Straw KC

Mr Straw: Thank you, my Lady.

Mr Mitchell, I represent John’s Campaign, the Patients Association and Care Rights UK.

In your statement you refer to Anne’s Law which gives people who live in adult care homes a right at all times to visit and support from those who are important to them. You indicate that the Care Inspectorate supports this. Could you explain, please, why Anne’s Law is important and why your Inspectorate supports it?

Mr Kevin Mitchell: Yes, we started to express concerns about visiting to care homes as early as the April of 2020 because we were concerned about the essential visits. Now, the essential visits, my understanding of that is that those were focused on individuals in care homes receiving end-of-life care and those in serious distress, perhaps living with dementia.

And even though those were allowed, they weren’t always happening when they should have been happening.

And we started, through one of my colleagues, particularly Marie Paterson, we started to share those concerns at some of the strategic meetings we attended. And we really were quite focused on that.

So the individual behind Anne’s Law was an individual who was recounting their experiences with her own mother, I think it was, and I think that was very powerful in galvanising support and we tried to play a part in ensuring that visits were able to take place but we – there was some resistance, it’s fair to say, from directors of public health, as we moved through the pandemic towards the May, there was even then some disagreements amongst directors of public health, some who were more in favour of visiting than others, but it was a significant issue and I’m pleased to say that we, with some government funding, we were able to support in an interim way the visiting arrangements until the recent passing of the Care Act that allows the visiting now, and requires the visiting to be allowed.

And I think that in Scotland it largely addresses the issues that arose during the pandemic.

Mr Straw KC: I think Anne’s Law was put forward by Natasha Hamilton whose mother Anne was living in a care home during the pandemic –

Mr Kevin Mitchell: Yes.

Mr Straw KC: – and she had dementia but was prevented from receiving visits by family carers for an extended period and that led to a serious decline in her healthcare, and death; is that right?

Mr Kevin Mitchell: I couldn’t comment on her particular case, but we certainly know that even at the point where window and garden visits were allowed as we progressed through the pandemic towards the end of 2020, there was some freeing up of visiting restrictions, but even then not all care homes were complying with that and indeed, some directors of public health were more robust in their approach to restricting visiting than others. And it was only towards the end of that year that things were starting to ease up but just as they were starting to ease up we had the second wave of the pandemic towards Christmas and that set us back again where there were significant problem with some relatives accessing or having their visiting rights, you know, respected.

Mr Straw KC: And at least within your inspectorate, in light of this case and others like it, is there now recognition that denying visits to essential carers can have severe consequences for people like Anne?

Mr Kevin Mitchell: I think there’s no doubt that there was significant distress with individuals who were not able to see their loved ones, and indeed the loved ones who were not able to see those that were in care homes. And that clearly has an impact on individuals. And that’s something that I think the Scottish Government, as you say, have now addressed with the Act that’s just awaiting Royal Assent.

Mr Straw: I think that’s my time, so thank you very much.

Lady Hallett: Thank you, Mr Straw.

Ms Beattie.

Ms Beattie is over there.

Questions From Ms Beattie

Ms Beattie: Mr Mitchell, I ask questions on behalf of Disabled People’s Organisations, and I have some questions about DNACPR.

In early 2020 there were reports, including in the media, of DNACPR notices being misused and concerns about their blanket use, and Dr Macaskill, who has been mentioned quite a lot already this morning, says Scottish Care received reports from care home members that they’d been sent packs of blank DNACPR forms without any previous discussion having taken place.

Inclusion Scotland heard accounts of DNACPR notices being placed on the records of disabled people and care users without notice or consent.

So my question is, what steps did the Care Inspectorate take to investigate those publicly available concerns and reports that DNACPR notices were being misused and had been inappropriately applied to disabled people and to care recipients?

Mr Kevin Mitchell: We were not aware and never aware of any blanket policy of the kind you describe, although I do recall there were some references in the media to something of that nature.

In terms of our role, even as far as back as the first Parliamentary report we produced on 10 June, we would routinely look at care plans, personal plans and risk assessments of individuals in care homes. We saw good examples of individual care plans, including anticipatory care plans, and we saw some poorer examples that were not updated appropriately, and those were outlined. And as I say, I’m sure in either our first or second Parliamentary report there’s mention of that, and in a number of successive Parliamentary reports.

So where we found reports – plans that were not of a required standard, then we referred that and we referred that to the partnership. But as I say, we were not – as far as I’m concerned, DNACPR means exactly that. It doesn’t mean you’re not entitled to other treatments.

So, again, just in summary, we were not aware of such a policy. We never received, as far as I’m aware, a complaint to that effect, although we did hear references to something of that nature in the media. But as I say, we looked at care plans routinely and risk assessments, and where there was good practice, we acknowledged it, and where there was individual failings, we identified that, and shared that with those to ensure that the remedies were put in place.

Ms Beattie: So, Mr Mitchell, do I understand your answer to be that, as part of your regular work, if you saw something that concerned DNACPR in a care plan, you may pick that up?

Mr Kevin Mitchell: Yes.

Ms Beattie: But that there was no investigation specifically into those reports and concerns that started in early 2020 about the specific use of DNACPR in the pandemic context?

Mr Kevin Mitchell: No investigation, but that’s because I certainly was not aware of any allegation, specific allegation being made. Although I am aware that round about the time it was raised – I can’t remember if it was in the media – I think Scottish Government put out guidance clarifying their expectations around anticipatory care plans and the conversations that should always take place, involving the individuals and their families, particularly if they lacked capacity.

So clearly, there was something that prompted Scottish Government to put out clarification guidance, but nothing that came directly to us that would have caused us to investigate in the way that you describe.

Ms Beattie: I think the letters that you may be referring to were sent to GPs, but not to the care sector. So, given the Care Inspectorate’s role for the care sector, and for that end of the equation, if I can put it that way, would it have been of assistance for the Care Inspectorate to have done something, for example such as what the CQC did in England, to carry out a review and an investigation into whether these practices were happening in the care sector?

Mr Kevin Mitchell: I don’t think the information – I don’t think we had information of a sufficient nature to cause us to investigate. Our expectations around care planning and anticipated care plans are clearly identified in our inspection frameworks, our quality frameworks, and there was nothing that I recall that we got that wanted us to do anything over and above what we did, was by looking at individual care plans.

It may have been that if there was guidance, we played a huge role on behalf of government through our reform system. We had a provider update every week, and we would often share guidance that government asked us to share. Whether there was anything around that that we shared at the time, I’m not sure, but there was – certainly nothing of that nature came to us all officially that was prompting us to think about an investigation.

Ms Beattie: Thank you, my Lady.

Lady Hallett: Thank you, Ms Beattie.

That completes the questions that we have for you, Mr Mitchell. Thank you very much indeed for your help. And as I’ve said to some of your colleagues, I hope that you didn’t have to prepare the whole of the statement, so thank you to any colleagues that helped you to prepare it and safe journey back to Scotland.

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

Lady Hallett: Thank you.

Ms Paisley: My Lady, the next witness is Professor Fu-Meng Khaw.

Professor Fu-Meng Khaw

PROFESSOR FU-MENG KHAW (affirmed).

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

The Witness: Not at all.

Lady Hallett: Ms Paisley.

Questions From Counsel to the Inquiry

Ms Paisley: Professor, thank you for attending the Inquiry today and for providing your statement to this module, dated 28 May 2025.

Professor, you are National Director of Health Protection and Screening Services and Executive Medical Director of Public Health Wales, having commenced this role on 1 June 2021; is that correct?

Professor Fu-Meng Khaw: Prynhawn da. Good afternoon. Yes, that’s correct.

Counsel Inquiry: Good afternoon.

By way of brief background, you qualified as a surgeon and spent some time working as a consultant in communicable disease control with the Health Protection Agency. You then took up appointment as Director of Public Health for two local authority areas in England. In 2013, you became the East Midlands Centre Director for Public Health England, and in 2020 and 2021, you were involved in Public Health England’s response to the pandemic in a number of national roles; is that right?

Professor Fu-Meng Khaw: That is correct.

Counsel Inquiry: Public Health Wales is an NHS trust, having been established in 2009. It has a number of assigned functions to protect and improve health and wellbeing, and to reduce inequalities for the people of Wales.

Amongst other things, it is a provider of public health-related specialist advice to the Welsh Government and its ministers. And that’s something it did over the pandemic; is that right?

Professor Fu-Meng Khaw: That is correct.

Counsel Inquiry: Can I begin by asking you, please, at paragraph 152 of your statement you’ve explained, in early January 2020 Public Health Wales joined the Public Health England-led Covid-19 incident management team, and that was together with representatives from both Scotland and Northern Ireland as well.

Now, in preparation of this statement, can you confirm if and when it was observed in those interactions that this new viruses may have serious consequences for the adult social care sector?

Professor Fu-Meng Khaw: So I’m aware very early on in January there was a meeting held that included the devolved administrations, on highlighting the potential that this virus would spread globally. And throughout January we attended the daily incident management team meetings that then Public Health England had organised, and we took notes of those meetings and fed those back internally within Public Health Wales and, where relevant, we also shared that with Welsh Government.

Counsel Inquiry: You explain that Public Health Wales has a business-as-usual call centre?

Lady Hallett: Sorry, just before you go on – I’m so sorry to interrupt you, Ms Paisley – Ms Paisley’s question was when did you observe that the new virus would have a serious consequence for the adult social care sector. I think what you addressed was when you became aware that it could become a pandemic?

Professor Fu-Meng Khaw: So, at the time, the focus was very much on the people who were most at risk, ie, those returning from high-risk areas, and all the cases up until 1 March were imported cases from abroad. And 1 March was when, you know, the sense of community transmission became apparent in the UK.

So I would take it as read that there was always a risk of community transmission in the UK but it wasn’t until 1 March when it was confirmed.

So as a result, an extension of that, because of the vulnerability of people in care homes, we had always assumed that this would be a problem in the care sector.

Ms Paisley: So it would be fair to say quite early on?

Professor Fu-Meng Khaw: From the outset.

Counsel Inquiry: From the outset, thank you.

Now you explain that Public Health Wales has a business-as-usual call centre, and that’s called AWARe. That receives notifications of all communicable diseases, it can be contacted by NHS professionals for advice. However, it’s right that that was not routinely used as a route for care homes to contact Public Health Wales?

Professor Fu-Meng Khaw: So the AWARe Team would receive notifications of infections diseases. This a statutory requirement and usually it would be done under the proper officer regulations, through notifications from clinicians. However, if care homes were experiencing incidents such as influenza, they would also seek advice and report these incidents to us, and we would support them.

Counsel Inquiry: So they could contact through that team?

Professor Fu-Meng Khaw: Indeed.

Counsel Inquiry: As a result of the number of queries received by the call centre, it’s right to say that it became overwhelmed, and so a national contact centre was established to focus specifically on Covid-19.

Can you help us with when that was established, please.

Professor Fu-Meng Khaw: So at around the end of February, we think around 25 February, a report was made to the gold response team in Public Health Wales, from our Health Protection Team who oversaw the AWARe service, indicating that there were many, many more queries coming through from across Wales into the team, and it needed further capacity.

So, as a result of that, very shortly afterwards, in late February, the national contact centre was established.

Counsel Inquiry: A decision was then taken to formally establish the enclosed settings cell. I think that was 25 March 2020, so around a month later; is that date correct?

Professor Fu-Meng Khaw: That is correct. That was the formal establishment of the Enclosed Settings Cell, but in practice, following the first notification of an incident of Covid in a care home on 15 March, shortly after that, we recognised that there were increasing calls from the care sector that we had to manage as a separate entity. So work had already been done to establish the shadow enclosed settings cell.

Counsel Inquiry: Are you able to give an idea of how many calls Public Health Wales would receive in non-pandemic times from care homes as against the numbers you were beginning to receive in March 2020?

Professor Fu-Meng Khaw: I don’t have that information to hand but we can provide that later.

Counsel Inquiry: Would it be fair to say significantly more?

Professor Fu-Meng Khaw: It was significantly more, which is one of the reasons why we established a dedicated Enclosed Settings Cell. And just to give you an idea, throughout the 90 days in which it was operational, there were over 17,000 actions taken, recorded in our case management system.

Counsel Inquiry: Practically, speaking then, what was the purpose of the Enclosed Settings Cell? Was it to provide advice or was it something else?

Professor Fu-Meng Khaw: So there were four key purposes for the Enclosed Settings Cell. One was around policy and strategy and providing advice to decision makers on that. The second was to receive notifications of incidents of cases or outbreaks in a care home setting. The third was to provide advice directly to care homes. And the fourth was to support the management of outbreaks and incidents in care homes.

Counsel Inquiry: Were you receiving any concerns from providers at that point, and if so, can you give an overview in those early days, so March 2020? What sorts of concerns were being raised?

Professor Fu-Meng Khaw: So this was a difficult time, you know, shortly after 15 March when we received the first notification, we started producing regular surveillance reports of the care home sector, so from 20 March our daily reports included summaries of care home incidents and outbreaks. And most of the enquiries, because of the nature of our organisation and the historical support we would give, would be about how we ensured that the best infection prevention and control advice was given, and adhered to in a social care setting. And we recognised that in care home settings it’s – the facilities are very different to a hospital setting, the ability to maintain infection prevention and control would be difficult by virtue of the nature of the residents, for example, someone with dementia, it might be very difficult to retain them in their room if isolation was required.

So we dealt with the practical issues that care homes were facing and provided advice as required.

Counsel Inquiry: Specifically in respect of concerns that providers may have been raising, was there a mechanism via which Public Health Wales could raise those concerns with the Welsh Government to factor into Welsh Government decision making?

Professor Fu-Meng Khaw: So we had regular contact with Welsh Government policy leads, the Chief Medical Officer, and also the Deputy Director General, who was overseeing the social care policy area. And our communications with them were regular, both in terms of physical meetings and also by emails. And where appropriate, we would exchange information about the concerns that we were hearing about from care homes.

And of course, they also had mechanisms directly to hear from the care sector, and through the regulator Care Inspectorate Wales, as well.

Counsel Inquiry: Now, before we come on to infection prevention and control, staying just with these structures, were these structures an effective way to manage calls from the sector, in your opinion?

Professor Fu-Meng Khaw: We think that by providing a dedicated cell with a dedicated number, that improved the ability for the care sector to reach us, and know that there is a dedicated team who’s familiar with the cases. In the end, after the 90 days of the existence of the Enclosed Settings Cell we actually communicated with three-fifths of the care homes registered with Care Inspectorate Wales across Wales.

Counsel Inquiry: Now, I understand that in April 2020 the Enclosed Settings Cell worked with local environmental health teams and local authorities across Wales to develop and introduce a standard operating procedure for proactive contact with the aim of preventing Covid-19 entering all settings that did not have an ongoing incident. Can you provide a brief overview of that standard operating procedure, please?

Professor Fu-Meng Khaw: So this was a time of immense change that we had to work in a different way with our key agencies across the health system, including our Environmental Health Officer colleagues in the local government. And typically, they would be involved in food poisoning outbreaks. But for Covid, it was a different area of involvement. For example, for other respiratory infections we wouldn’t involve environmental health officers in managing influenza outbreaks, for instance. So this was a new area of work.

So by developing a standard operating procedure, we were able to clarify roles and responsibilities which, at the time of a significant change, was very important.

Counsel Inquiry: In June 2020, Public Health Wales then transferred information on care home incidents to regional Test Trace, Protect teams, so did all functions then transfer over at that point? And if so, why?

Professor Fu-Meng Khaw: So this was part of the public health protection response plan that we proposed to Welsh Government on 4 May following a request that they made for us to develop this plan on 22 April. And the implementation of this would be to enable local resource to deal with local incidents, including those in care homes.

Counsel Inquiry: Did Public Health Wales, however, continue to support those local teams?

Professor Fu-Meng Khaw: We did. And we did it through our normal response plans, through the roles and responsibilities, recognising the standard operating procedure, and we were able to focus on providing advice for guidance, developing guidance, advice on policy decisions, and also, very important at the time, focus on surveillance.

Counsel Inquiry: In the event of a future pandemic that may have severe consequences for care homes and the sector more generally, do you think the Enclosed Settings Cell and the structures that we’ve just looked at would have a part to play?

Professor Fu-Meng Khaw: We think it would. You know, we did an evaluation of this at the end, in May 2020, and the evaluation was very positive, including positive feedback from the care sector.

Counsel Inquiry: Are there any specific lessons you would draw to the attention of the Inquiry about the operation of those structures?

Professor Fu-Meng Khaw: So I think the Enclosed Settings Cell had a wide remit, including direct response to enquiries and managing incidents and outbreaks, and the receipt of notifications of infectious diseases. And I think in future, we would separate out the guidance function to form a dedicated guidance cell. In fact, throughout the pandemic, we learned from that, and established an internal guidance subgroup on 1 June, following the dissolution of the Enclosed Settings Cell.

Counsel Inquiry: Thank you, Professor, and that’s something we will touch upon later in your evidence.

Can I, please, move on, then, to infection prevention and control which you’ve briefly mentioned. Now, you’ve said that one of the roles was to provide advice on infection prevention and control measures, including isolation. You explain the initial guidance was in line with the 2016 guidance. Can you help us, how long was that advice relied upon before there was tailored advice specifically relating to Covid-19?

Professor Fu-Meng Khaw: So we looked to respond to Covid initially as we would any other respiratory infection, given the common denominator around the transmission routes that we knew at the time. But when guidance was being produced in England by UK Government and published by PHE, DHSC, we felt we had to align with that guidance, because that was published on the gov.uk website, which, you know, had – was accessed by everyone. So we wanted to be consistent.

So when we published the first information sheet on 24 March, we made sure that we provided links to the extant guidance that was specific for the care sector at that time.

Counsel Inquiry: When you say, “We felt we had to align”, was it appropriate to align clinically?

Professor Fu-Meng Khaw: It was, because we were confident that the evidence and the scientific evidence was being reviewed and we had part – we were part of that review through the structures that Public Health England put in place through the incident management teams. And more latterly, the establishment of the UK IPC cell had involvement from all the devolved nations. And in fact the chair of the UK IPC cell, Dr Eleri Davies, was working in Public Health Wales at that time.

Counsel Inquiry: To what extent was IPC guidance issued to care homes in Wales tailored specifically to Wales, if at all?

Professor Fu-Meng Khaw: We were always aligned with the UK IPC guidance, and our interpretation of the guidance for Wales was around contact numbers and also local risk assessments. And when it came to very detailed guidance like risk assessments for visiting, for example, we did produce bespoke guidance within Wales.

Counsel Inquiry: To what extent and, in your view, is bespoke guidance necessary for the different nations of the UK?

Professor Fu-Meng Khaw: The systems are different across the UK, you know, the structures are different. So it is very important that local guidance is available that reflects that system. So there are fundamental differences in the way that healthcare is delivered in Wales in terms of the structures around them. So health boards have a different role to hospital trusts in England, for instance.

Counsel Inquiry: Focusing on the care sector, the Inquiry heard evidence yesterday from Care Inspectorate Wales that care homes in Wales tend to be quite small, perhaps, in contrast. Did Public Health Wales consider the physical infrastructure of the smaller care homes in Wales, and specifically whether that may limit their ability to ensure ventilation, for example?

Professor Fu-Meng Khaw: We were familiar with the care sector’s constraints in some of the care home environments, and the advice that we provided was always taking those local factors into account. So whenever a care home contacted us for advice, we would become familiar with some of the constraints and challenges they were facing. And we provided practical advice on how you might, under those circumstances, maintain infection prevention and control.

Counsel Inquiry: Would any improvements required to ventilation in care homes be something that Public Health Wales would advise on?

Professor Fu-Meng Khaw: That’s not something we would routinely advise on and we would look to our specialist estates colleagues to provide that specialist advice.

Counsel Inquiry: When you say your specialist estates colleagues, who would that be?

Professor Fu-Meng Khaw: That wouldn’t be within Public Health Wales.

Counsel Inquiry: Which body would that be within?

Professor Fu-Meng Khaw: I think it’s within the shared services construct in Wales.

Counsel Inquiry: Can I move on to another topic, then. Data, please. Did Public Health Wales have access to definitive data regarding how many people were in receipt of care in the adult social care sector at the outset of the pandemic? So February, March time?

Professor Fu-Meng Khaw: That’s not something we routinely collect, because our prime purpose is to collect information on incidents and outbreaks and cases of infectious disease as a statutory requirement. The denominator of who’s in receipt of care is not something we have ready access to.

Counsel Inquiry: Are you aware if it did exist at the time?

Professor Fu-Meng Khaw: We were aware, clearly, of regulators and responsible persons for adult social care, but we wouldn’t know where to look for the data around the numbers of people in receipt of care.

Counsel Inquiry: Do you think it would have helped Public Health Wales if it had known where to look, and if it had access to the numbers of people in care?

Professor Fu-Meng Khaw: I think if we knew the denominator, and that is the total number of people in receipt of care, it would have helped us understand the rates of infection in adult social care, for instance, when we were able to report on the numbers of cases in receipt of care.

Counsel Inquiry: Your statement touches on data issues in a number of places. Generally speaking, what were the main deficiencies that Public Health Wales observed and what steps were taken to improve access over the course of the pandemic? Particularly with a focus on the adult social care sector.

Professor Fu-Meng Khaw: Yeah, thank you.

So if I start by looking at the process of data collection. We rely on people to report to us incidents and outbreaks of cases of infectious diseases. We also have a laboratory system that records the numbers of people diagnosed with a particular infectious disease.

However, we rely on the information in the request form to be able to associate that individual with an address or a particular characteristic, whether its age or gender.

Now, we don’t have a tick box that says, “Are you in a care home?” So that made it difficult for us to link the request, and therefore the result of that test, to whether a person was in the care home.

And we did an exercise to look at linking by asking Care Inspectorate Wales for their least of regulated care homes, and by discerning their postcodes we were able to link the number of people who had been affected that way.

But having done that, we recognised there were still gaps in the data collection that meant that, whether it was an error in the postcodes, we weren’t able to link all the cases.

Counsel Inquiry: There was a particular issue, I think, with deaths data and the conflicting sources. Can you provide an overview of that, please.

Professor Fu-Meng Khaw: So we knew it was important to monitor the trends of deaths from Covid over time, and across high-risk settings, particularly in hospitals and care homes, and worked with Digital Health and Care Wales (DHCW) to put in the process, which was an e-form, electronic form, that people could use to notify us of deaths.

This form was not mandatory, but the then director general for Health and Social Care wrote out to all health boards asking them to use this form from 23 April.

Up to then, the notification of deaths from the care sector was through our Enclosed Settings Cell. People would report it and we would record it and put it into our surveillance systems.

Counsel Inquiry: Is there any recommendation to the Inquiry, then, about the collection of death data in the care sector that you would recommend for future pandemics?

Professor Fu-Meng Khaw: So I think, particularly in the early stages where monitoring was critically important to look at how bad and infectious disease might be, we need a single point of data collection.

Now, for deaths data, the Office for National Statistics ultimately is the most comprehensive source of data collection through the regulated and mandatory processes, but that has a time lag of a few weeks, and the balance is always between timeliness and comprehensiveness. So surveillance helps with the timeliness, but we always recognise that it’s not always going to be comprehensive.

So we would see that there’s a single point of registration of deaths from an infectious disease of concern, and that – and public health agencies with that responsibility should be the single point of reference for that.

Counsel Inquiry: Just one final question on data, please. I think you acknowledge that there was limited surveillance of domiciliary care and unpaid care. Is that something that you would recommend should be collected in the future? And if so, who would have responsibility for that?

Professor Fu-Meng Khaw: I think we would wrap this up in our overall responsibility around surveillance. Our ability to cut the data or report on the data according to the area of interest is very much dependent on how that data is coded.

Now, if there was a field that said this person is in receipt of domiciliary care, we could easily capture that, but the difficulty is that in the request for a test, those fields are often not available to us. So we need to rely on linking that data, and that relies on working with partner agencies who may hold that data.

Counsel Inquiry: I’m going to move now, please, if I can, on to the chronology. In February 2020, guidance was produced by Public Health England. Was Public Health Wales asked to review that guidance? So this was 25 February, social or community care in residential settings guidance.

Professor Fu-Meng Khaw: So this guidance was mentioned in draft form at one of the PHE Incident Management Team meetings. I believe it was 19 February. Our team made some suggested changes, but because they were largely to reflect the Wales context, those changes weren’t taken into account. Nevertheless, we also shared that draft guidance with Welsh Government to ask whether we needed to produce a Welsh version of the guidance.

And I believe Welsh Government took that advice and on 6 March produced guidance similar to that produced by Public Health England for Wales.

Counsel Inquiry: If we can move on to March 2020, then, and just a few more questions before we break. You explain at paragraph 189 that Public Health Wales had no record of being asked for advice in relation to the development of policy and guidance with regard to the Welsh Government’s decision on 13 March to discharge asymptomatic patients to care homes without a Covid-19 test.

Is that something Public Health Wales would expect to have been consulted on?

Professor Fu-Meng Khaw: We would expect to, you know, be asked to give advice on a key policy decision such as the one you’ve mentioned.

Counsel Inquiry: As a public health expert yourself with your experience, if you had been consulted about that policy at that time in Wales, what would your advice have been?

Professor Fu-Meng Khaw: Specifically in relation to testing for hospital discharges?

Counsel Inquiry: Yes.

Professor Fu-Meng Khaw: I think our view at the time was, you know, we had only just introduced the SARS-CoV-2 assay in our laboratories. That was approved by the Chief Medical Officer on 7 February. And at the time, the assays that were available were very early in the development of the testing. So we were still trying to understand how the test would behave and what the sensitivity and specificity of the test is.

So we weren’t sure about what a negative test would actually mean. So we know, over time, that that settled at around 70% sensitivity, which is the ability of the test to detect a true positive.

So if it’s high, then it’s detecting a lot of true positives, but if it’s low, then the number of false negatives are then very high. So a negative test result didn’t necessarily mean that the individual wasn’t infected.

Ms Paisley: Thank you. And I think we’ll come to look more at the advice Public Health Wales gave.

But, my Lady, I wonder if that might be an appropriate moment?

Lady Hallett: Certainly.

Sorry we have to break off for lunch. But we shall finish you this afternoon, Professor, I promise.

2.00, please.

(1.00 pm)

(The Short Adjournment)

(2.00 pm)

Lady Hallett: Ms Paisley.

Ms Paisley: Thank you.

Professor, can you assist us, when could symptomatic residents in a care home first access a test?

Professor Fu-Meng Khaw: So symptomatic residents could first access tests from the outset in March, when we made decisions around how we deal with incidents and outbreaks reported from a care home setting, in keeping with how we might manage other respiratory infections such as influenza.

Counsel Inquiry: Sorry to interject, I think it’s right on 19 March the advice was the three most recent onset.

Professor Fu-Meng Khaw: That’s correct.

Counsel Inquiry: And then that changed on 25 March, that if there was one resident who had tested positive, no further testing would take place; is that right?

Professor Fu-Meng Khaw: That’s right.

Counsel Inquiry: And is that in line with the definition of an outbreak?

Professor Fu-Meng Khaw: So the decision was made because of limitations in the capacity to do testing, which we had informed the system that we would prioritise for clinically suspected cases in hospitals, and there was a clear prioritisation matrix, but included in that was symptomatic residents in care homes.

Counsel Inquiry: You explain in mid-March Public Health Wales gave advice regarding the testing of symptomatic key workers and, again, that focused on healthcare workers. When did symptomatic workers in care homes first access a test?

Professor Fu-Meng Khaw: So the decision was made by Welsh Government on 1 April, I believe, for symptomatic care home workers to be tested.

Counsel Inquiry: To what extent do you think the advice from Public Health Wales in testing symptomatic residents and workers in care homes would have been different in March if that greater capacity had existed?

Professor Fu-Meng Khaw: So the ability to positively identify a case obviously provides information about the infectiousness of that individual. But by then, there was already advice about isolation – so we’d moved from containment to delay on 12 March – for anyone displaying one of the three cardinal signs at the time to self-isolate, on the assumption they would be positive. And we didn’t have community testing and people were advised to take that action.

Counsel Inquiry: So if there had been greater capacity, would you have advocated for more testing at that time?

Professor Fu-Meng Khaw: We would have advocated for more testing at the time when actually we were still trying to understand the nature and behaviour of the disease.

Counsel Inquiry: Can I move on then, please.

You explain Public Health Wales was not asked to provide any specific advice in relation to the hospital discharge advice of the Welsh Government dated 7 April 2020. Is that something you consider Public Health Wales should have been consulted on?

Professor Fu-Meng Khaw: As I mentioned earlier, any key policy decisions relating to the health of the population we would want to advise on any matters relating to our roles and responsibility, particularly around infectious diseases.

Counsel Inquiry: Now, on 24 March, Public Health Wales was asked for advice to inform a letter to be sent to the care home sector. That was specifically to do with the guidance about accepting admissions or returning residents.

And can we please have on screen INQ000336353, page 1, paragraph 1.

This is an email dated 31 March between a number of officials within the Welsh Government, and one of those officials says:

“I am trying to progress this with PHW on a daily basis but not getting very far – it’s extremely frustrating.”

Do you have any comments on that?

Professor Fu-Meng Khaw: So this was a period of intensive care and attention to support the system in dealing with Covid, and we were having to deal with enquiries from professionals, and managing incidents and outbreaks as well. And may I remind us that this was at a time before we had the Test, Trace, Protect system in place. So Public Health Wales was very much in the centre of the response.

The contact with Public Health Wales from Welsh Government was made through several routes. Now, we did have an incident director rota and we made that available to Welsh Government. So technically, that would be our route in to Welsh Government. But there were several routes created, either through the Enclosed Settings Cell or through individuals who had a role to play in testing, for example.

So in this evidence, David Heyburn, who was then our head of operations in microbiology, was liaising with Welsh Government particularly around key worker testing for social care workers, but when it came to a point when he was asked to comment on wider policy issues, he did remind Welsh Government of the routes into Public Health Wales.

Counsel Inquiry: One of the comments I think in this email is that the Welsh Government was struggling to know who to contact at Public Health Wales about which subject and you’ve briefly touched on that. Was there a confusion about who should be contacted within Public Health Wales?

Professor Fu-Meng Khaw: So in our opinion there wasn’t a confusion. We had a clearly-identified incident director rota and that rota was made available to Welsh Government.

Counsel Inquiry: Thank you. That document can come down, please, and we don’t need to go to it but on 29 March 2020, Tracey Cooper responded to a concern that had been raised by an assembly member about care homes accepting new admissions without testing and her response was:

“New residents should similarly be assessed for signs or symptoms of Covid-19 infection and those affected isolated as appropriate.

“If new residents … do not have any symptoms prior to admission, there is no value in testing for the presence of the coronavirus. The test is designed for patients with symptoms and therefore we don’t routinely test new residents prior to admission.”

This is something that we touched upon earlier. At this stage, could the tests pick up somebody without symptoms?

Professor Fu-Meng Khaw: So the test was intended for use in symptomatic patients and therefore designed for use as such. And so all our validation procedures in our labs would conform with that requirement. And it was that requirement that enabled those products to be marketed in the EU. So we very much adhered to that intended use and so were unable to predict with any accuracy how it would behave and perform when used on asymptomatic individuals.

Lady Hallett: So just – that’s not going anywhere near as saying there’s no value in testing, is it?

Professor Fu-Meng Khaw: I think, you know –

Lady Hallett: To say you didn’t know doesn’t mean there’s no value.

Professor Fu-Meng Khaw: I accept that, you know, and I think Dr Tracey Cooper sought advice when she emailed back to the Inquiry. I think in hindsight, we should have accepted that there was some value in testing, but I think it is true to say it was designed for symptomatic patients.

Ms Paisley: Thank you.

On 2 April the UK Government published its UK Government Guidance on the Admission and Care of Residents in Care Homes. You explain that this led the Welsh Government to ask Public Health Wales to produce equivalent guidance for Wales. Was there a request by the government that that should mirror the England guidance or did Public Health Wales feel able to amend it as necessary?

Professor Fu-Meng Khaw: That was the request, and there were also comments about a more comprehensive guidance akin to the one published by UK Government. So on 6 April, I believe, we sent back some comments on the proposed Welsh guidance indicating areas where we needed it to align to existing Welsh Government policy and guidance, and highlighted those areas where new policy needed to be in place.

Counsel Inquiry: So Public Health Wales then did feel able to comment on where changes may be necessary?

Professor Fu-Meng Khaw: Indeed. And we felt that we wouldn’t want to change the public health content, because we understood the process that it went through for the publication in England.

Counsel Inquiry: Just exploring this in greater detail, please. A draft of the care homes letter that Public Health Wales had been asked to advise upon was circulated on 3 April, and that letter I think was three pages long.

Can we then, please, have a look at INQ000520925, and, on page 5, the email at 17:09, the response from the Welsh Government:

“… Albert Heaney, favours a more comprehensive approach in terms of the advice which is to be issued to care homes. He will not be signing the proposed letter for issue today.”

Then the response from Public Health Wales:

“… In the meantime we will do some further work on pulling together a Welsh version of the PHE guidance – would that be helpful?”

Government response was:

“Yes please, we would favour more comprehensive guidance covering the relevant issues in one place as far as possible.”

So at this stage, what was Public Health Wales’s understanding of what it was meant to be producing? Because there had been a request for a letter and the guidance. So was it both?

Professor Fu-Meng Khaw: So it was to inform the letter and also produce the guidance. And, you know, the request came in on the Friday and by Monday, as I said earlier, we prepared a document with tracked changes and comments to highlight those areas that needed to align with existing guidance and areas where new policies needed to be developed.

Counsel Inquiry: And just before we look at 6 April, in your opinion, did the need to advise on both of those simultaneously stretch Public Health Wales in any way?

Professor Fu-Meng Khaw: I think the letter itself would have related to the guidance. So, for me, that was probably the easier part of the request. The more challenging bit was the guidance document itself, because it needed to align with policy which wasn’t necessarily in place at the time.

Counsel Inquiry: If we can stay on this email, then, and scroll up to page 1, and you’ve helpfully confirmed that the guidance was shared, the draft guidance, on 6 April, and there was a comment from Margaret Rooney of Care Inspectorate Wales, and her opinion was:

“In general, my feeling is the tone of this guidance is very much about care homes accepting people being discharged from hospital and it may feel very much like we are saying you must take people. I feel this would be more accepted if the tone was more about – here is some guidance on how to care for people in this period and as part of that you may be admitting new people from hospital.”

And Tracey Cooper’s response was:

“There is an increasing level of urgency and it’s taking quite a time to agree whilst care homes are desperate for guidance.”

Now, that document can come down, please.

The following day, Margaret Rooney said she was not happy to brand this a CIW as it currently stands, and whilst it was appreciated that it mirrored the approach in England she said:

[As read] “We feel we need to pause and reflect on whether this is the right approach for Wales.”

The response of Public Health Wales was:

[As read] “The guidance had been well thought through. The risks of not getting it out now are greater than getting it out as it is.”

And my question, then, is: was anything changed in the guidance following the comments of Care Inspectorate Wales?

Professor Fu-Meng Khaw: No, and that comment was repeated the following day, on 8 April, and the guidance draft that we sent through was approved that evening by Albert Heaney.

Counsel Inquiry: Reflecting back on the concerns expressed, do you think any of the concerns of Care Inspectorate Wales were valid and worth raising?

Professor Fu-Meng Khaw: I think the whole issue about hospital discharge testing was an area of interest from the outset. Care homes clearly had a duty of care to their residents and were concerned about incursions of Covid into a vulnerable population, and that was manifest through trying to make sure that any policies relating to discharges from another high-risk setting, hospitals, wouldn’t pose a threat to care homes. And that is perfectly understandable.

However, it was at a time when we were really clear that isolation provided an additional control measure, so that in the case of any positive or infectious individuals, we were able to also, through that measure, control transmission in that setting.

Counsel Inquiry: The final guidance was published on 9 April along with the letter to the care homes, and as you’ve confirmed, the public health content was taken directly from the Public Health England guidance. Do you agree that there was a delay in publishing that guidance in Wales and if so, what do you attribute the delay to and how can that have been avoided?

Professor Fu-Meng Khaw: I think as I said earlier, the delay was partly about ensuring the alignment with existing guidance that they weren’t contradictory, alignment with policies that may or may not have existed in Wales at the time, and also, differing views that you’ve heard and expressed earlier about hospital discharge testing.

Lady Hallett: Can I just go back to one of your answers first, I’m sorry to keep interrupting. You felt that isolation provided an additional control measure, but I’ve heard that isolation wasn’t always possible in many homes where, for example, residents have dementia.

Professor Fu-Meng Khaw: And that’s the real-life situation that we had to, you know, take into account. Technically, theoretically, isolation is a good control measure. But practically speaking, in care homes, particularly smaller care homes with highly vulnerable populations, it is difficult. I accept that.

Ms Paisley: Thank you, my Lady.

A few follow-up questions on isolation. The guidance published did not in fact recommend isolation for all patients discharged from hospital, did it?

Professor Fu-Meng Khaw: So there were circumstances where isolation wasn’t deemed to be necessary after a period of time for those people who had been diagnosed with Covid and that period of time was accepted as 14 days.

Counsel Inquiry: So if people were being – not being tested and they were asymptomatic at this stage, how would providers have known that they had Covid and been able to care for them safely, particularly without recommending isolation for all discharges?

Professor Fu-Meng Khaw: So we had always advised that isolation following discharge from a high-risk setting would be advisable, but accepted that it wasn’t always practical.

Counsel Inquiry: So is it the case, then, that Public Health Wales advised that that should be in the guidance that it was advisable to isolate everyone, or was that perhaps an oversight?

Professor Fu-Meng Khaw: I mean, I don’t have access to the document to be able to verify that but our approach had always been to isolate as a precaution for anyone whose status wasn’t known.

Counsel Inquiry: So then, from the time that the decision was taken on 13 March to expedite discharges, would Public Health Wales’s view have been that, where possible, every discharged patient to a care home should have been isolated?

Professor Fu-Meng Khaw: That’s correct.

Counsel Inquiry: Can I move now, please, through to mid-April and can we please have on screen INQ000617081, and page 2.

You explain in your statement that Public Health Wales first became aware of the Welsh Government’s change of position in relation to testing all patients on discharge through an email on 15 April 2020, and we can see in this email it says:

“… CMO and Albert Heaney want a revised approach to testing in place asap which will include testing on hospital discharge to care homes …”

Do you agree that’s a clear policy instruction to Public Health Wales to update the guidance to reflect that change?

Professor Fu-Meng Khaw: So policy decisions are communicated in a variety of ways. Whether it’s a Ministerial Statement, whether it’s a statement by an officer such as a CMO, or whether it’s in an email request such as this. We didn’t take this as a definite policy decision but clearly we took this as a request to consider an approach to testing for hospital discharge to care homes.

Counsel Inquiry: We can also see here there was a request for more general testing for care home residents and staff so, in effect, two requests. If we can scroll on to page 1, please, Giri Shankar says:

“If we were to follow the English guidance, we certainly do not have the testing capacity to meet that revised requirement.”

Was that in relation to the testing on discharge or was that in relation to the more general testing?

Professor Fu-Meng Khaw: I think it was in relation to the more general testing, because the use cases and the requests for increased testing was coming through to the team as multiple requests. So this was one of many requests for testing. And at this time, there was an allocation of the assays for us to use a high-volume testing equipment that was already in place to a certain number per week. So we had to take those constraints into account.

I guess what we didn’t do at the time was calculate the estimated increase activity on testing should this policy be in place. And that’s something we could have taken stock of from the DHSC guidance, which talked about 6% increase in activity.

Counsel Inquiry: What you say in your statement on this point is:

“Public Health Wales did not have access to the numbers of hospital discharges to care homes but anticipated that this would be within the manageable number for the testing capacity.”

So is it then Public Health Wales’s position that you would have had capacity to test everyone on discharge, and specifically, when from?

Professor Fu-Meng Khaw: So hospital discharges were not a known entity up to that point because what was happening was directed by policy. Now, if then there is a requirement for testing to admit someone to a care home, we didn’t fully understand what impact that would have on testing capacity, so I think monitoring hospital discharges would have been helpful to understand how that would impact on our testing capacity.

Counsel Inquiry: So would it be helpful then, in the future, if Public Health Wales did have access to the number of people being discharged in this sort of scenario?

Professor Fu-Meng Khaw: Yes, and then impact analysis about how a policy decision would affect that.

Counsel Inquiry: Who would have provided that information?

Professor Fu-Meng Khaw: I think we would look to the NHS Wales system as a whole to model that, and would look to Welsh Government to provide the analytical input to that as well.

Counsel Inquiry: Moving, then, to 16 April, which is the day after the email we’ve just looked at, and there was a meeting attended by Public Health Wales and the Minister for Health and Social Care, and you say that he presented a different position on testing based on Chief Medical Officer advice. Can you help with what the different positions were?

Professor Fu-Meng Khaw: So my understanding is that there was an issue around testing asymptomatic individuals in care homes. That had a different position taken, that it was conveyed that there would be no place for testing asymptomatic individuals. Now, if necessary, we can feed back in more detail around those differences.

Counsel Inquiry: Can we have on screen, please, INQ000499632. This is a summary note of a meeting on 16 April, and on page 2 Andrew Jones of Public Health Wales writes:

“We will need a clear policy steer/instruction from [Welsh Government] colleagues, notably in areas where current scientific advice/evidence may not be consistent with actions.”

And then at Action 3, on page 3, it states:

“[Welsh Government] Policy officials verbally outlined a clear request/policy instruction from CMO/Director of Social services and Integration for the testing of non-COVID 19 patients prior to discharge from hospital to care home setting.”

If we can then go, please, to page 1, bullet point one – the first bullet point noted by Alison Machon, of the Welsh Government:

“Several references below to not having clear steer/instruction from [Welsh Government]. This has been provided in emails to [Public Health Wales] from both Marion and I. It was reiterated at the meeting this morning. However, Andrew kept saying that from a meeting he’d attended yesterday, this was not Vaughan’s position.”

So, at this stage, do you agree that there had been a clear policy instruction regarding the testing on discharge?

Professor Fu-Meng Khaw: So, as I indicated earlier, the kind of policy position and how it’s conveyed can take several different forms. I think, in Public Health Wales, we were probably expecting something more formal than in an email, in the body of an email with a request.

Now, had it said “Welsh Government is making a policy decision on this, to test patients before discharge”, we would have taken it as read as such.

So implicitly it could have been that it was a policy decision, but it wasn’t explicit.

Counsel Inquiry: To avoid these issues arising in the future, what would Public Health Wales need to see that communicates a very clear decision?

Professor Fu-Meng Khaw: In an ideal world we would work towards a policy decision, to be given the opportunity to provide advice to inform that decision from a specialist viewpoint, and to be able to work with the system to ensure that, as and when the policy decision was made, the structures and processes would be in place to support that policy decision.

Counsel Inquiry: Can we, please, look at some of the other bullet points here. Bullet point two, it says:

“… it was agreed that there should be testing for people who had been in hospital for a non-Covid 19 condition and that a negative test result (presumably before discharge) would enable return to the care home. Again a couple of caveats here – the tests are not cast iron and so there should be a further 5 days isolation on return to the care home.”

Can you assist us with the clinical reasons for the five days of isolation, please?

Professor Fu-Meng Khaw: So the five days’ isolation was based on the known knowledge of the behaviour of the infection at the time, which is that by five days, most people who would have been incubating the disease would have developed symptoms.

Counsel Inquiry: And bullet point three, Public Health Wales’s position was that testing for people who had been in hospital with Covid-19 was “not necessary” before discharge.

And the logic, I believe, was that they would not be in infectious after 14 days, but may still be testing positive.

Can you help us, was there any guidance already in place in Wales that said someone who had been admitted to hospital with Covid-19 would only be discharged after 14 days had passed?

Professor Fu-Meng Khaw: So there was nothing in place at the time, and our clinical teams who dealt with many of these patients were also being asked for advice in the hospitals around people who persistently tested positive, who weren’t able to be discharged although they were clinically well. And there were discussions about how do you interpret the test results, and over time, there were advisory notes that the Technical Advisory Cell had produced in relation to testing, and that culminated in December in a position where, by looking at more detail of the test result and the CT, the cycle threshold, value was then used as an indicator of infectiousness.

So anyone with a CT value of over 35 was then deemed not to be infectious. And that helped with people who were persistently positive.

Counsel Inquiry: If we then go to bullet point 5:

“The question of where else people are safely discharged to if there is potential for them to still be infectious is being discussed and planned separately …”

And I think that this is discussion of step-down facilities or what was sometimes called designated settings; was that the first conversation Public Health Wales is aware of about those settings?

Professor Fu-Meng Khaw: We weren’t involved in the planning for the step-down facilities at a local level. Our focus on, you know, managing outbreaks and the surveillance of infectious diseases remained.

Counsel Inquiry: From a clinical perspective was that a sensible precaution and should that have been brought in any earlier in Wales?

Professor Fu-Meng Khaw: I mean, in light of the policy to discharge only on the negative test from hospital to a care home, this made sense because then you had a facility that was able to care for people who were still waiting for a negative test result who were clinically well and didn’t need hospital treatment. And at the time, hospital facilities were very, very stretched.

Counsel Inquiry: Thank you. That document can come down, please.

There was a further meeting between Public Health Wales and the Welsh Government on 17 April, and again, your statement says Public Health Wales had still not been advised of a decision to formally change the testing policy. At this stage, was there anything preventing the Welsh Government updating and publishing the hospital discharge guidance?

Professor Fu-Meng Khaw: Not as far as I can tell. And that subsequently came on 22 April.

Counsel Inquiry: So is it your position, then, that that didn’t need to wait for these conversations with Public Health Wales, and that decision could have been implemented by the Welsh Government itself on 15 April?

Professor Fu-Meng Khaw: I think that’s probably correct. I mean, we were in a position where we needed to understand the evidence base and the rationale. We were in a position where the guidance document that was branded under Public Health Wales would normally have an evidence basis for it. So to not have the co-branding with Welsh Government and the regulator put us in a position where we were producing guidance that, you know, didn’t have a scientific basis for it.

And you will note the later evidence that we did publish about the impact of hospital discharge on care home outbreaks.

Counsel Inquiry: Following that through, then, if the Welsh Government had taken that policy decision and published updated discharge guidance, I think you would agree that Public Health Wales probably did have the capacity to do that testing from 15 April?

Professor Fu-Meng Khaw: I believe so.

Counsel Inquiry: Moving on, then, please, to 18 April 2020. And Public Health Wales, along with the other devolved health agencies, attended an Incident Management Team meeting with Public Health England and this was to discuss the results of the Easter 6 study, and that study concluded that symptoms were poorly predictive of prediction and therefore a poor trigger for control measures?

You explain the significance of that work and you explain that Dr Chris Williams convened an internal Public Health Wales meeting on 18 April to discuss the implications of the report and ideas for a Wales approach. Can you help us with what the outcome of that meeting was to discuss the impact on Wales?

Professor Fu-Meng Khaw: So the impact of having evidence in the UK of asymptomatic transmission in a vulnerable population in the care sector meant that we needed to look at our policies and guidance about, for example, making assumptions that asymptomatic individuals were not infectious. And therefore, that led to a need for assessment of all the evidence and the guidance that we had in place at the time, and working very closely with Welsh Government on policy decisions.

Counsel Inquiry: Can I then move on, please, and two letters were sent to the care sector on 22 and 24 April 2020 by Albert Heaney and Frank Atherton. Now, an updated draft version of the Care Home Guidance was circulated by Public Health Wales on 27 April 2020 and we don’t need to go to the document but there was an email from Public Health Wales which says:

“We have reframed this as Public Health guidance and therefore it is more generic to cater for the scientific view rather than the policy position.”

Can you explain what’s meant by that, please?

Professor Fu-Meng Khaw: So that was to stick to the public health aspects and guidance that we thought would be helpful for the care sector. That included a wider remit than just a focus on hospital discharge testing.

Counsel Inquiry: The view of the Welsh Government was that the draft guidance was inconsistent with the letters that had been sent to the sector, and that it didn’t pick up on areas such as global testing of residents and staff testing, and you explain that there still hadn’t been a policy agreement within the Welsh Government at that stage to introduce those measures. And there were some further concerns about the letters to the sector that you’ve raised, for example on the intention to introduce asymptomatic testing, and Public Health Wales was aware that there was an intention to introduce that, but didn’t know the timescale.

Did Public Health Wales receive copies of the letters from 22 and 24 April?

Professor Fu-Meng Khaw: I don’t believe we did.

Counsel Inquiry: Would it have been helpful, had you received them?

Professor Fu-Meng Khaw: It’s always good to have a heads-up of the detail that’s about to be announced to the system. In fact, on 22 April the letter – the distribution list didn’t include Public Health Wales.

Counsel Inquiry: On 28 April 2020, there was an email from Alison Machon to Albert Heaney and Frank Atherton and she said there were:

“… various meetings that have been held to go through the issues over the last week or so … I want to draw your urgent attention to the significant difficulties we are having in making headway with [Public Health Wales] – in fact it has become impossible.”

Was there then a disconnect at this point between Public Health Wales and the Welsh Government?

Professor Fu-Meng Khaw: The disconnect wasn’t that we weren’t meeting regularly with them. I think the disconnect was a difference in view around some of the decisions.

Counsel Inquiry: You explain it wasn’t until 29 April that from Public Health Wales’s view there was a conversation and an email exchange which was:

“… helpful in agreeing a position that guidance should reflect policy decisions.

“We were able to make clear through those conversations that the policy needed to have been made, (ie, approved), and clearly communicated to Public Health Wales before changes were made to our guidance.”

Do you think that Public Health Wales did enough proactively to get clarity?

Professor Fu-Meng Khaw: Probably not explicitly. I think, you know, when we had an assumption about how policy announcements were made, we didn’t expect it to be in an email. So I think having that clarity confirmed in an email on both parties helped us to then understand that, you know, guidance follows policy.

Counsel Inquiry: And what was different to the email on 29 April as opposed to the emails we’ve looked at that suggest there had been a clear policy steer?

Professor Fu-Meng Khaw: So again, this is something of interpretation, whether something was a clear policy decision that had been made, and had been communicated widely that we then had to prepare guidance to align with the policy decision.

Counsel Inquiry: The final version of the updated care homes guidance was published on 1 May. Could you briefly summarise it, if you can, having looked at what we’ve been through, what were the main factors for that delay and do you accept that there was a delay?

Professor Fu-Meng Khaw: So it was at the time when we were also asked to prepare the operating model for Test, Trace, Protect, to work out how the health system in Wales would respond to the ongoing Covid pandemic, to look at the response to and management of incident outbreaks, to look at surveillance, and to look at how we would support the various sectors. So that was a huge piece of work, and that was commissioned on 22 April.

So alongside this, we were also looking at how we would take forward this request on policy changes around testing for hospital discharges.

And you will recall that we were still operating the Enclosed Settings Cell who had the main remit around developing guidance for the care sector and they were also dealing with enquiries from the care homes themselves.

So there was a lot of activity at the time, and with fast-changing policy decisions, we had to ensure that everything aligned and was consistent, not just with guidance within Wales, but also guidance across the UK, such as the UK IPC guidance.

Counsel Inquiry: You briefly touched upon, earlier, the establishment of the internal guidance cell, which was in July 2020. Did that help with the production of guidance and clarify any of the earlier issues experienced in March and April?

Professor Fu-Meng Khaw: It did, because this was a dedicated resource that was there to produce guidance documents. And that further became more formalised the following year with the establishment of the guidance cell, which was directly part of the health protection response in Public Health Wales.

Counsel Inquiry: So would the internal guidance cell have a role to play in a future pandemic, then?

Professor Fu-Meng Khaw: That’s a lesson we learnt in the pandemic and implemented.

Counsel Inquiry: Touching then, please, on the impact of the discharge, and I know Public Health Wales undertook some work in this area, and it’s Public Health Wales’s view that there were a number of different pathways of care homes – arriving into care homes in March and April.

Does any of the findings of Public Health Wales need to factor in the fact that there were a limited number of tests undertaken in March and April? And does that change the findings in any way?

Professor Fu-Meng Khaw: So the study was undertaken during the period between February and May, I believe. And looked at all hospital discharges into care homes, irrespective of test results. And clearly, for part of that period, there was no testing done for hospital discharges.

So we accept that it would have included some who were negative and some who were positive, and it is – we’re not able to know retrospectively whether that would have made a difference. If anything, it would probably have diluted the impact that we identified.

We did a further analysis looking at a longer period, from February to December 2020, looking at the impact of a positive care home worker on an outbreak occurring in the care home subsequently in the 14 days, and found that to have a risk of about threefold increase, compared to no statistically significant increase from a hospital discharge.

Counsel Inquiry: A few short questions about May testing decisions, please. On 1 May, which was the same day that Public Health Wales published the updated guidance, you explained that you became aware through media reports of the Welsh Government’s intention to change its testing policy. Is that the intention to test asymptomatically that we discussed earlier? So Public Health Wales knew it was an intention but not the timescale?

Professor Fu-Meng Khaw: That’s correct, and this was to offer a wider testing in care home settings. Up to then, it was symptomatic residents and workers.

Counsel Inquiry: Did Public Health Wales advise on that policy?

Professor Fu-Meng Khaw: We did not.

Counsel Inquiry: Should Public Health Wales have been asked to advise?

Professor Fu-Meng Khaw: We should have been asked.

Counsel Inquiry: And similarly, that policy was then updated on 16 May 2020 to include a wider number. Was Public Health Wales asked to advise on that change?

Professor Fu-Meng Khaw: I believe we were.

Counsel Inquiry: I just have one final substantive topic, please, to explore with you, and that’s in respect of visiting.

At paragraph 38 of your statement you outline that an advice note was provided to Sir Frank Atherton on 19 July 2021, and it’s right that Public Health Wales provided a number of formalised advice notes. And this was regarding visiting to care homes.

One of the conclusions was that complete closure of homes for an extended period when there are cases among staff or residents is no longer proportionate.

Was Public Health Wales then of the view that, prior to July 2021, there were circumstances when complete closure for an extended period was proportionate?

Professor Fu-Meng Khaw: I think the context is important here. Clearly in July 2021 we had got over the worst of the second wave from the Alpha variant, and were preparing for what we might consider as endemic Covid. And I think it was right for us to make that comment.

Now, up to then, clearly it was a different period of activity and Covid transmission in the community. So we were always agile in our advice to the circumstances around the epidemiology.

Counsel Inquiry: John’s Campaign have raised in their statement to the Inquiry that there was insufficient clarity on the meaning of “end of life” for the purposes of visiting. Was Public Health Wales involved in the definition of “end of life”, and if so, do you agree that the definition was unclear for the purposes of visiting?

Professor Fu-Meng Khaw: So our advice was on a pragmatic level, with the intention to reduce the incursion of Covid in a care home. And so whilst we were not responsible for defining “end of life”, we would help care providers interpret what would be end of life, always with that principle of protecting other residents from visitors.

Counsel Inquiry: Do you think there could have been any improvements to the way “end of life” was defined or how care homes were interpreting it that may have assisted?

Professor Fu-Meng Khaw: I think this is a really difficult area, because clearly end of life is not something that we had any means of assessing on an individual basis. So those who provided care would know best, and the clinicians looking after them would be the best people to advise on what end of life would be, given the circumstances that we had.

Counsel Inquiry: Then just one final question, please. Other than anything we’ve already covered in your evidence, are there any particular recommendations that Public Health Wales has learnt from its own experience with the adult social care sector that you would urge this Inquiry to consider?

Professor Fu-Meng Khaw: So I would reiterate the point I made earlier about Public Health Wales being the single sole source of notifications and surveillance of infectious diseases.

The second thing is to reiterate the importance of high-quality infection prevention and control in care homes, and that the regulator and responsible persons should ensure that care homes have the policies and procedures necessary to maintain high-quality IPC, and that training is available to staff, and clearly there are bodies around education and training that can support that.

And thirdly, we recognise that we could have engaged much earlier with the care sector in order to get the real lived experience in our response.

Ms Paisley: Thank you.

Thank you, my Lady, I have no further questions. I believe there are some Core Participant questions.

Lady Hallett: Thank you, Ms Paisley.

Mr Stanton.

Questions From Mr Stanton

Mr Stanton: Thank you, my Lady. Good afternoon, Professor.

I ask questions on behalf of the Covid-19 Bereaved Families for Justice Cymru. I’d like to ask you a question about the decision of the Welsh Government on 15 December 2020 to allow discharges from hospital to care homes with low-level positive tests, and you touched on earlier this issue when you mentioned a cycle threshold of 35 or above.

Professor, acknowledging that a low-level positive test meant that the risk of infection was reduced, do you accept that this did not mean that there was no risk and that there were uncertainties about the period of infectivity?

Professor Fu-Meng Khaw: I think evidence and our experience of infectious disease changes, especially when it’s a new one. And that change is based on our understanding how it has behaved and understanding of the natural history, and no infection is the same in two individuals.

So there are many factors to interpret what a test result actually means, but, based on our understanding of the natural history of the disease, a 14-day period from the last detected symptom, or the date of onset of symptoms, gave us a good understanding that if they were asymptomatic and that period of time had lapsed, then they were unlikely to be infectious. And then corroborated by a weekly positive test gave us more assurance that that individual wouldn’t be infectious to others.

Mr Stanton: Do you accept, though, that there remained a risk?

Professor Fu-Meng Khaw: I mean, technically you could argue that with a positive test, albeit with a high CT value, there may have been a small risk. I’m not able to quantify what that risk would be, but based on an understanding of the disease and how it behaved, we believed that risk to be very small.

Mr Stanton: Do you think you can rule out any connection between this policy and the surge of infections and deaths that occurred in care homes in Wales in January 2021?

Professor Fu-Meng Khaw: We can’t rule anything out in terms of the impact of this policy. I’m not sure that we undertook any specific studies in relation to what we now know as, you know, the impact of the alpha variant in the autumn of 2020. So I’m not able to comment on that.

Mr Stanton: Thank you. Can I come back to the balance of risks that you mentioned earlier. Given the extreme vulnerability of care home residents, the way in which infections spread rapidly within care homes once seeded and the inability of care homes to deal with infection through IPC which you’ve just mentioned in your concluding remarks, and also the inability of care homes to care for residents with infections, do you think, despite what you say about there only being a small risk, do you think the balance of risk was correctly determined in this instance, particularly given, at the time, the known increase in infections in care homes?

Professor Fu-Meng Khaw: So I think taking hospital discharge testing in isolation, this was one of many other potential incursions of Covid in a care home and we know about the impact of, you know, care home workers working across multiple sites, and also the provisions for workers, as well, that meant that they might have to work in order to have a steady income. So there were many, many factors that we understand now that played a part in the transmission in care homes, in addition to the very different environment that is probably more conducive to transmission.

Mr Stanton: Do you think the fact that the Welsh Government was prepared to take the decision it did at this time says something about the prioritisation of care home residents?

Professor Fu-Meng Khaw: So if we compare the discharge testing policy in Wales with England on 15 April, when England – hospital discharge testing was recommended but a negative test wasn’t a requirement for admission to hospital, I think Welsh Government took a policy decision over and above, and therefore that technically would have protected residents in care homes.

Mr Stanton: I’m sorry, Professor, but with regard to the December decision?

Professor Fu-Meng Khaw: So with respect to the December decision, again, I don’t have any evidence to suggest whether or not the change in advice around a positive test would have resulted in more cases, but I don’t have that information.

Mr Stanton: Thank you.

Thank you, my Lady.

Lady Hallett: Thank you, Mr Stanton.

Ms Morris.

Ms Morris is just there.

Questions From Ms Morris KC

Ms Morris: Thank you, my Lady.

Good afternoon, Professor. I ask questions on behalf of the Covid Bereaved Families for Justice UK, and just one short topic, please, and it may well be a clarification.

Ms Paisley asked you about the chronology of advice to the public from Public Health Wales. We touched on a moment ago as well with her the advice to the Chief Medical Officer for Wales on 19 July 2021, and you say in your statement that was, if you like, the first specific and direct advice provided to the CMO for Wales, that directly addressed management of Covid in care homes.

So why did it take until July 2021 for that first direct and specific advice to come from Public Health Wales to CMO?

Professor Fu-Meng Khaw: So let me clarify one thing. From October, we formalised the process for providing advice notes to the CMO. And by July 2021, we introduced a single point of contact within Public Health Wales, with a managed inbox to deal with requests and commissions for advice. So the list of advice notes that we have compiled for the Inquiry includes examples of where the advice was specific for the care sector. But throughout the pandemic response we were providing advice to the Technical Advisory Cell, to the CMO directly, throughout the response.

Ms Morris KC: Is this part of the internal guidance cell that you talked about sort of centralising and formalising advice from July 2021?

Professor Fu-Meng Khaw: Yeah, the guidance cell was there to publish guidance and seek advice from our subject matter experts in order to produce that guidance. The advice notes would have not just been focused on guidance, but might have asked us for advice on particular policy considerations.

Ms Morris: That’s clearer. Thank you.

Thank you, Professor.

Thank you, my Lady.

Lady Hallett: Thank you, Ms Morris.

Mr Straw.

Mr Straw is over there.

Questions From Mr Straw KC

Mr Straw: Good afternoon, Professor, I represent John’s Campaign, The Patients Association, and Care Rights UK.

You accepted earlier and in your statement that Public Health Wales should have engaged much earlier with the care sector to better enable you to understand real lived experience of those on the ground.

Would you agree that this engagement should have included the representatives of people drawing on care, and their supporters, because they are best placed to understand that real lived experience?

Professor Fu-Meng Khaw: We like to think that service user experience is part of the requirement for us to understand how best to deliver a high-quality service. It is one of the foundations of how we run the service. So, you know, a short answer would be: yes, absolutely, we would need service user experience as part of that engagement.

Mr Straw KC: You earlier in – sorry, at paragraph 115 of your witness statement you describe a weekly group chaired by Improvement Cymru from March to June 2020 for care home managers to meet and discuss priority issues for those living with and caring for people with dementia.

In those meetings were representatives of people drawing on care and their supporters also invited?

Professor Fu-Meng Khaw: I believe not. And just to clarify, the cwtch, a “cwtch” is the Welsh word for a hug or a cuddle, so it was there to support the care home sector and it ran for a year. And the valuation after that suggested that this was very welcome by the care sector. To my understanding, I don’t believe users or their representatives were involved in those discussions.

Mr Straw KC: Are there mechanisms in place, or do you think there should be, to ensure that people representing those drawing on care will have a voice in meetings in future, in particular in a future pandemic?

Professor Fu-Meng Khaw: I think it’s a vital part of how we develop our response and service on an ongoing basis. So, yes.

Mr Straw KC: In terms of those meetings regarding priority issues for those living with dementia, can you recall what were the priority issues for people living with dementia during the pandemic?

Professor Fu-Meng Khaw: So my understanding was it was a peer support group so care home workers, managers, could exchange their experience of how they managed particular situations. I don’t have the details of what the key priorities were, but it extended beyond IPC guidance, which actually our Health Protection Teams would be more familiar with.

But the Cwtch project came out of a wider initiative to support quality improvement in the care sector that Improvement Cymru, which was then a directorate of Public Health Wales and now part of NHS Performance and Improvement in Wales, had established a three-year programme and the Cwtch project came out of that.

Mr Straw KC: Final question, which is about data collection. You earlier indicated that you consider there should be a comprehensive single source of data complexion, including on rates of Covid infection for those in care.

Would you agree that it’s also important to record other non-Covid causes of death, mental and physical illnesses, and other factors, so that the impact of restrictions during a pandemic can be better understood?

Professor Fu-Meng Khaw: And we did have a system for collecting Covid deaths, but underlying all this would be a need to understand mortality as a whole, and I would – you know, a wider data function gives us access to monitor those deaths. But that’s a system-wide responsibility.

Mr Straw KC: And non-Covid deaths?

Professor Fu-Meng Khaw: So non-Covid deaths was something that we didn’t have primary focus on at the time of the response, but clearly, there are other mechanisms for looking at that through the Office for National Statistics, who was a much more comprehensive source of information around that.

Mr Straw: Okay. Thank you very much.

Lady Hallett: Thank you, Mr Straw.

Professor, that concludes the questions we have for you. Thank you very much for the help you have given to the Inquiry and thank you for my new favourite word.

The Witness: Thank you.

Lady Hallett: I think you’d like us to take a break now –

Ms Paisley: Yes, please, my Lady.

Lady Hallett: – Ms Paisley, before the next witness.

Ms Paisley: Thank you.

Lady Hallett: Very well. I shall return at 3.15.

(3.00 pm)

(A short break)

(3.15 pm)

Lady Hallett: Ms Paisley.

Ms Paisley: My Lady, the next witness is Christina McAnea.

Ms Christina McAnea

MS CHRISTINA McANEA (sworn).

Questions From Counsel to the Inquiry

Lady Hallett: I’m afraid you’ve got the last spot of the day today, so, sorry if we’ve kept you waiting.

The Witness: That’s all right.

Ms Paisley: Good afternoon, thank you very much for attending the Inquiry today and for providing a statement to this module dated 16 April 2025.

You are the general secretary of Unison, and in the statement, you explain that three of the affiliate unions of the Trades Union Congress, Unison, GMB and Unite, have a particular presence or interest in the adult social care sector; is that correct?

Ms Christina McAnea: It is.

Counsel Inquiry: The TUC has 48 member unions and it exists to support those member unions and the members of those unions; is that right?

Ms Christina McAnea: It is.

Counsel Inquiry: The statement you have provided has been co-signed with representatives of both GMB and Unite; is that right?

Ms Christina McAnea: Yes.

Counsel Inquiry: Unison is a public services union whose representation includes around 157,000 members in the social care sector. GMB and Unite are both general unions. GMB represents around 50,000 members in the social care sector and Unite, similarly, represents a broad range of workers in the sector; is that correct?

Ms Christina McAnea: Yes.

Counsel Inquiry: Turning then to the devolved nations, TUC Cymru sits within the wider TUC but leads on matters which are within the powers of the Welsh Government and matters which are wholly specific to Wales.

And as you explain in your statement, the issues faced in England in the social care sector were largely mirrored in Wales but your statement in some places draws out the specific Welsh experience.

Ms Christina McAnea: Yes.

Counsel Inquiry: Both the Scottish TUC and the Irish Congress of Trade Unions are independent from the TUC, however you explained that the TUC works in partnership with its sisters in the devolved nations, and this is formalised through the body known as the Council of the Isles?

Ms Christina McAnea: Yes.

Counsel Inquiry: To what extent was there communication between all four groups on matters related to the pandemic response and the impact upon the adult social care sector between March 2020 and the end of June 2022?

Ms Christina McAnea: Thank you. Before I answer that, would it be all right if I just say I want to pay tribute to all of the victims of Covid and their families, the impact it’s had on their families, and also to all the workers who died during the pandemic, and the impact it’s had on their families, and – on behalf of my union and the TUC.

So turning to your question, yeah, there was – so the TUC General Council pulled together all of the unions, which are the 48 affiliates, and there was discussion between – mainly between the Council of the Isles but particularly between the TUC in Wales and the Scottish TUC. So there’s a lot of – probably more discussion and correspondence between the Scottish TUC and the Welsh TUC and the main English TUC, with a sort of – side discussions more taking place with the Irish ones.

Counsel Inquiry: In your experience, to what extent were the trade unions across the four nations observing the same sorts of issues in regard to the adult social care sector?

Ms Christina McAnea: My union is – so from a Unison point of view, we are a UK-wide union, so we have members in Scotland, Wales, England and Northern Ireland, not in the Republic of Ireland, others unions have them in the Republic as well, I think Unite have members in the Republic. Certainly from my experience, the issues across the four nations were very similar. There was next to no difference.

There were some bits where obviously we were having different elements of a relationship with the different devolved administrations, so a different level of partnership working or more informal discussions that would take place with the political leadership in certain parts of the UK. There was quite a big variation across the UK in that sense.

Counsel Inquiry: And we’ll come on to some of those topics but for the workers on the ground, it was similar issues and concerns?

Ms Christina McAnea: Very similar. I wouldn’t say we were able to distinguish any major differences.

Counsel Inquiry: From the TUC’s perspective, please could you give a brief overview of the biggest concerns faced by the sector going into the pandemic, so February, March 2020?

Ms Christina McAnea: Yeah, so going into the pandemic it was the – we were dealing with the legacy issues or the ongoing issues of the problems within the social care sector which was a lack of cohesion, very little central information, no central control at all; certainly worse in England than anywhere else, but not particularly great elsewhere across the UK. And a sector that was – had high vacancy rates, had high numbers of staff on insecure work so there would be a high number of staff on zero-hours contracts or who were agency workers, who didn’t get paid even the minimum wage because of the travel time issues, that is they don’t get paid – many workers don’t get paid for travel time.

So it was a sector that was in a lot of flux. High turnover of staff. And, you know, they’re – just really difficult to get a grip of it. And no partnership working at national or, indeed, local level most of the time. There were –

Counsel Inquiry: Perhaps if I can pause you there, because I’m going to actually come on to that topic –

Ms Christina McAnea: Okay.

Counsel Inquiry: – next. So you explain in your statement, prior to the pandemic, DHSC did not include trade unions in regularly convened national forums dedicated to the care sector, including forums focused on the workforce and any engagement was on an ad hoc basis.

Ms Christina McAnea: Yes.

Counsel Inquiry: And during the pandemic, you explain a number of groups were convened by the UK Government, and you explain that unions were involved from their inception; is that right?

Ms Christina McAnea: Yeah.

Counsel Inquiry: Was that seen as a positive step, given it was a concern going into the pandemic?

Ms Christina McAnea: Yes. I mean, as soon as the pandemic hit I think there was a recognition that there needed to be something urgently done to try to deal with the issues that were coming up from the social care sector, and that included what was happening on the ground, in terms of getting access to PPE, et cetera. And one of the ways to do that was to talk to the union representatives. So it was definitely an improvement to have some kind of partnership or some kind of meetings taking place.

Counsel Inquiry: And do you think that those groups were convened early enough in the pandemic?

Ms Christina McAnea: I think they came about mainly because of pressure from, a lot of pressure from us. So we’d started – from us, us being the trade unions. We’d started writing to the government departments to say there’s a major issue, because almost immediately, one of the things we saw within my union was we started getting calls and contact from care workers on the ground coming through, you know, different routes within the union to say there’s a major problem. So it was one of the first things, when we went into lockdown, one of the first things we started to get was calls coming through from the regions to say there’s a major problem in the care sector.

And we then wrote to the – to governments to say, “You need to talk to us about this.” So it came about through pressure from the unions.

Lady Hallett: Could I ask you to slow down.

The Witness: Sorry.

Lady Hallett: It’s all right, no, it’s the end of a long day for the stenographer, so between us, she might despair.

Ms Paisley: In your statement you also list the forums in which the TUC Cymru engaged with the Welsh Government regarding the adult social care sector, and similarly in Wales, no structure had existed prior to the pandemic and I think it’s right that Unison and organisations within the TUC Cymru had been calling for a forum for some time. What were the reasons given for those calls for a forum being denied prior to the pandemic, briefly?

Ms Christina McAnea: Certainly from the UK Government, one of the key reasons they were giving us was there was no way for them to control what happened in the social care sector. It was predominantly provided by private and voluntary sector, so it was about at least 80% of it was provided through those sectors as opposed to through public services. And central government’s, the Westminster Government’s response was always “It’s nothing to do with us. We don’t really cover social care. That’s dealt with at local level.”

Counsel Inquiry: And I think in Wales there was the creation of the social care forum, and you say it became the route through which unions lobbied for and informed key policy decisions including Statutory Sick Pay, risks associated with mandatory vaccination, issues to do with workforce retention and pay rates. And when you refer to that in your statement you say “in contrast” to the UK Government, this was established in Wales.

So were there any gaps in the group set up by the UK Government that something akin to the social care forum would fill?

Ms Christina McAnea: So there was no overall social care forum partnership arrangement with the UK Government. There was a series of – even after we’d gone into lockdown, there was a series of different groups set up to deal with specific issues, which I think is laid out in paragraph 22 in the report, and you’ll see them listed. So these were set up because it was – when there was an issue, they would set up a group to deal with something specific, but there was no overall involvement.

And we had – I think I – it was mainly Unison that sat on them, if I recollect correctly. I think there might have been one or two where mainly GMB might have had a seat on it, and a lot of that was because we just made – we jumped up and down about it. We did it through the TUC –

Counsel Inquiry: And just pausing there, have any of the groups that were set up by the UK Government or the Welsh Government been retained since the pandemic, and do you still have representation on them?

Ms Christina McAnea: No. So once the pandemic was over – not until recently. There has been a group set up in the past year which looks at pay and conditions and other issues within the social care sector, but after the pandemic ended, there was no continuation from the government at that time that carried on.

Counsel Inquiry: And in the event of a future pandemic, what would be the value of these groups with representation from the trade unions?

Ms Christina McAnea: Well, having a standing group I think would make a significant difference, because you’d be able to deal with issues on a much quicker basis.

My big worry up until fairly recently has been if the pandemic happened tomorrow, we’d be still pretty much in the same position when it came to social care. As I said, within the past year there has been another social care group set up with the current government, which is looking specifically at issues – workforce issues. So this is a group that’s been set up to look specifically at pay and conditions, and for the social care workforce. And it’s already met several times, and it involves unions and employers and providers.

Counsel Inquiry: If I can then move on, please, to some specific meetings, on 31 March 2020, members of Unison attended a DHSC workforce meeting, and the first of those meetings had been held on 19 March 2020.

But can we please have on screen INQ000119097, which is the 31 March meeting. Thank you.

This is a summary note of that meeting taken by a Unison representative, and the first paragraph on page 1 discusses the “bringing staff back” initiative, and the note goes on to say 7,000 nurses had expressed an interest in returning to work, however, only 150 expressed an interest in returning to social care.

Then at the end of that paragraph a comment is noted:

“Perhaps we could encourage members who come under this umbrella to consider working in care/nursing home settings?”

Can you help with whether that was something the TUC or respective unions were trying to actively encourage, and if so, how?

Ms Christina McAnea: So we were involved in the discussions about trying to encourage staff to come back to work, and I think our view was if we could say to them specifically “Think about coming back to social care”, to be honest I can’t – I’m sorry, I can’t remember offhand whether we then sent anything out specifically to ask them to come back to social care. I’d have to go back and check that.

Counsel Inquiry: Are you aware if the governments were taking any active steps to encourage people back into social care?

Ms Christina McAnea: I’m certain that they weren’t.

Counsel Inquiry: On the next paragraph, please, it says:

“Care providers say they have been unable to key into the … initiative and register their need for more nurses through these structures and that there is a clear feeling that the needs of the care system vis à vis nurses are not registered or recognised.”

Can you help us with what is meant by “unable to key into the initiative”, please.

Ms Christina McAnea: This was very much an NHS initiative, and there was very few areas where the NHS and care providers would be together, even in a situation like this where you think they would have been, there was hardly any forum where that would happen.

Counsel Inquiry: And in fact, it – that’s a feeling that’s expressed in this email, is that there is a growing disquiet from across the group, as with the volunteer initiative, that the care sector was being sidelined. Who was doing that sidelining?

Ms Christina McAnea: Well, government officials, I would – would have been the ones – when they were setting up these groups, this was very much an NHS initiative, to begin with, and there was – it just felt that there was constant push, certainly from us as the union, but I’m sure from, you know – I was in touch at the time with some of the provider organisations too, that they were expressing their frustration about the fact that it was almost impossible for them to be taken seriously by the Department of Health, because they were just seen as not a big player when it came to the social care or, more than that, that social care was very much an afterthought.

Counsel Inquiry: If I can ask you, then, to reflect and looking forwards, if there was to be a future pandemic, and there was consideration about such an initiative, how could care workers practically be encouraged back into the sector?

Ms Christina McAnea: Well, one of the key things would be you’d have to look at the way care is set up at the moment, the way the care services is set up. So now it is one of the worst paying, worst set of conditions, the worst anything when it comes to workforce, happens in the care sector. You know, most staff are on minimum wage or, as I said earlier, sometimes even less than that, if you’re a domiciliary care worker.

Their conditions are appalling, so they don’t get paid sick pay or they get paid the absolute minimum sick pay, they have minimum annual leave. Many of them are on zero-hours contracts. So to bring them back to a workforce where they’re contrasting themselves with an NHS workforce which has a whole different set of terms of reference, where staff are treated with dignity and – by and large with dignity and respect, they’re seen as valued members of the workforce, that just doesn’t happen in the social care setting.

Counsel Inquiry: Could I pick up on something that you said, that this was initially an NHS initiative. Perhaps, would a practical example be if it had been a joint initiative from the outset? Would that be something practically that could have been done?

Ms Christina McAnea: It would have been, if there was some – part of the problem you’ve got is that there was no – there’s no central lead in the care sector. So there was no employers’ body that was one employer’s organisation. There was no one provider organisation, or one commissioning organisation. The nearest you had to anything that would represent the workforce were the three unions that are part of this. We were always happy to discuss these things.

But even for us, the difficulty we had then – and to an extent even now we still have is – there is no recognised employers’ body or umbrella organisation that represents the care sector, and the government certainly did not represent the care sector. They very much took a hands-off approach to the care sector.

Counsel Inquiry: I’m going to move topic but if – could I possibly ask you just to keep your answers a little bit shorter –

Ms Christina McAnea: Sure.

Counsel Inquiry: – just because we have a number of topics to get through.

Ms Christina McAnea: Yeah.

Counsel Inquiry: Thank you. Can I move on to personal protective equipment, please.

Ms Christina McAnea: Yeah.

Counsel Inquiry: And staying with this document, in the third of the longer paragraphs there were concerns raised about PPE on 31 March, and it says:

“… we’ve had a lot of members raise concerns about the lack of it … provider representative bodies expressed real anger that hardly any PPE is reaching social care providers and that it is all being diverted to the NHS. It was reported that some care workers are having to resort to wearing marigold gloves.”

From reports you’re aware of coming in from on the ground, just how bad was it for those providers without access to PPE?

Ms Christina McAnea: It was shockingly bad. I can’t emphasise it enough. We set up our own hotline, a call line for the workers who were Unison members. And within the first morning that we’d set it up, we’d a thousand calls. Within a few days we’d had 4,000 calls. 90% of them were from people who worked in the care sector. And they were desperate calls. So it was an appalling situation. And the distribution of PPE, as far as I can tell, was being made up on the hoof. There was no thought gone into it.

Counsel Inquiry: In fact there was a concern raised in this email that there was no coherent approach to PPE –

Ms Christina McAnea: Yeah.

Counsel Inquiry: – or the distribution or access or coordination in local areas, and providers were getting increasingly frustrated.

And focusing, then, on the lack of a coherent approach, what sorts of things were providers reporting that – the difficulties being caused about the lack of coherency?

Ms Christina McAnea: So it was a mixture of reporting from providers but also from our members and our officers on the ground as a union. So we would be sending officers in to talk to the care homes about what the problem were. So we were getting a mixture of information from a mixture of sources.

And it was no proper system for distribution from any central resource. Some were resorting to trying to buy their own from different providers. Even in the union, some of our local branches – so as a union we’re made up of branches – some of our branches were actually buying PPE from wherever they could get it to distribute to the members. And they were going to workplaces to give them PPE and give them masks and gowns and things.

Counsel Inquiry: And so, in terms of what a good coherent approach would have looked like, can you help us with what the TUC would want to have seen in terms of the organisation?

Ms Christina McAnea: Yeah, so there would have to be a central distribution system the way there was for the NHS, which is, one, they’d have to know where all the care homes were and what kind of services were being provided in those care homes. Where were they getting their PPE initially? You’d have to find a way to direct the care homes to actually – and the care providers for domiciliary care – to give out PPE in a certain way.

That took a long time, and was very confusing to try to get that during the pandemic. I’m not sure we ever got it right. But it certainly wasn’t – certainly the first few months it was a nightmare. And so there was – that would have to be getting thought about now. You had need things in place now, where they had mapped what the care sector looked like, they had worked out what the regional distribution centres would be like or who would be responsible for it, whether that was going to be local authorities or it was going to be some NHS providers. But there’d have to be a system put in place. And it should be in place now, because if there’s a pandemic tomorrow, we’re – as far as I’m aware, that system is still not in place.

Counsel Inquiry: That document can come down. Thank you.

Unison in fact wrote to Mr Hancock and Mr Johnson directly on the top of PPE in March 2020, and can we please have on screen INQ000339480, and in that letter, page 1, paragraph 3, please, it says:

“We know that considerable efforts are being made to solve the logistical problems associated with supply and distribution of materials …”

Can you help us, please, what the considerable efforts that were being made were at that point?

Ms Christina McAnea: Well, I think they were trying to deal with them mainly about the NHS. So this was about trying to deal with delivering PPE to the NHS. You know, we’d seen on the news all the attempts the government were making to try to find PPE, get it delivered, et cetera. The big problem we had was that that wasn’t getting through to the care sector at all, and that they were always the last to be considered when it came to how you would distribute PPE.

Counsel Inquiry: Now, as this module is focused on the adult social care sector, can we please scroll to the bullet points at the end of this document. And if this is purely related to the NHS, please say so, but were any of these bullet points applicable to concerns in the care sector as well?

Ms Christina McAnea: All of them would have been applicable to the care sector.

Counsel Inquiry: So in that case can we look at a few of those, please.

Ms Christina McAnea: Yeah.

Counsel Inquiry: These are suggestions of Unison about how it may operate better and the first thing is to note that this is a request that these are put towards instructing employers to take measures. And focusing on some of the suggestions, the first one:

“Explain clearly to staff the scientific evidence employers are using when they make decisions about the provision and use of PPE”.

And so from your perspective, could some issues have been addressed simply through better communication of why decisions had been taken?

Ms Christina McAnea: Yes, and can I give you an example? Because I wasn’t the general secretary at the time but I was the assistant general secretary in charge of the negotiations and bargaining and I was directly involved in managing the staff who were working with us and being involved with government departments. And one of the discussions I had was with, I think it was someone from the Health and Safety Executive who was telling me that there was advice up online about how care workers should access PPE, put it on, and dispose of it.

So I was saying to them, “One of the big issues we keep getting told – asked is, what PPE should I be using in different circumstances? And how can I put it on, take it off safely, and dispose of it safely?” And I was assured that it’s there on the website, and when I come – while I was on the call, I was looking at the website, I couldn’t find it and I said to them at the end of the call, “I’ve just looked this up and I can’t find it and I’m not a busy care sector, I’m sitting at home doing this.”

I said, “Do me a favour, when the call ends, go on and see if you can find it and come back and tell me.”

And he did get back to me and he said, “No you’re right I couldn’t find it”.

Then when we did find it it was absolute gobbledygook.

Counsel Inquiry: So visibility and simplicity then would be something –

Ms Christina McAnea: Yeah, I don’t know who it was aimed at. It might have been aimed at scientists, but it certainly wasn’t aimed at care workers.

Counsel Inquiry: And one of the other recommendations at the very end is about suitability and training being provided to the sector, and is that something that would have been equally as applicable to the care sector?

Ms Christina McAnea: Absolutely. I mean, these were care workers who were having to deal with patients either who had been long term in the homes or were discharged from hospitals, often with Covid. These were people who were going in every day to deal with the elderly, the confused, people with learning disabilities, and there had been no training on what they should – what was appropriate for each of those different kinds of settings that they were dealing with.

Counsel Inquiry: And do you have any suggestion as to who would be the responsible body for delivering such training?

Ms Christina McAnea: Well, I think there’s – it all goes back to the fact that there is no central department that seems to have responsibility even now for those kinds of issues. So I don’t know whether that would be – whether there needs to be some kind of national care service.

We’ve been calling for this for some time, a national care service that has responsibility for a range of things, not just the pay and conditions of the staff, but actually what happens in that service. And if we had something like that, that was like the NHS, and had that kind of parity of responsibility, parity of esteem, whatever you want to call it, that’s an organisation that could look at how do you train staff, how do you make sure that they’ve actually got the information necessary to deal with the patients that they look after, and to, you know, deal with issues around PPE. Which are still there in the sector.

Counsel Inquiry: That document can come down. Thank you.

You talk about the establishment of a PPE task and finish group. Did that assist things at all?

Ms Christina McAnea: It helped in that it meant – I think I was the only trade union person on that, if that was – I get confused at the different ones. I was on one and one of my colleagues was on another, on some of the others.

Counsel Inquiry: Could you give us possibly an example of how your representation on that group helped?

Ms Christina McAnea: Yes, so, again, because we were able to give – because we were running all sorts, we had the helpline running, we were running surveys with our members, we had – we’ve got about 400 officers across the UK who were working directly with local authorities, who would be able to – and who would be able to contact us and say, “These are the major problems we were coming up against.”

So we’d set up a system in Unison that said to the staff “Start recording and logging all of the issues”, so we could see themes that were arising so that we could raise them.

So that gave me and the other staff who were sitting on these bodies direct, in real time almost, information that we could feed in. And that’s what we were doing.

And it sometimes conflicted with the information we were – that those groups were receiving from providers or commissioners, because they were saying, “This guidance is out and we’re implementing it.”

And we would be saying, “Well, if you are, it’s not filtering down to care workers, because that’s not the information we’re receiving.”

Counsel Inquiry: In respect of groups such as this, would it have been helpful if there was more clarity about how what you were expressing was actually being taken forwards by the government?

Ms Christina McAnea: Yeah, that was another issue. I mean, we were quite often a lone voice, in fact usually a lone voice on these groups. And whilst there was – I don’t mean to disparage everyone who was on the group, there were a lot of people who were very sympathetic to what we were saying, but that wasn’t always necessarily what was actioned. So the issues we were raising were not always actioned.

Counsel Inquiry: And just my final question specifically on this topic, I’m not going to ask for it to be brought up, but within one of the documents there’s a suggestion by a colleague of yours that within PPE guidance, it might have assisted to have an accompanying FAQ document.

Ms Christina McAnea: Yeah.

Counsel Inquiry: Is that something that would assist in the future, and particularly if people from the sector were involved in developing it?

Ms Christina McAnea: Definitely. FAQs, but also one of the other suggestions I remember making was: why don’t you make little short videos – which I think eventually they did – of how you put on PPE and how you take it off and dispose of it? Just as an example.

Counsel Inquiry: And very briefly, touching upon the response in Wales, were the concerns that were being raised in Wales very similar to those in England and would the suggestions for improvement be the same across all four nations?

Ms Christina McAnea: Yes, very similar. Hardly any difference.

Counsel Inquiry: Moving on, then, to concerns over pay, please, for the sector. And you explain that members in the sector were reporting that low levels of sick pay were putting pressure on them to return to work when they should be self-isolating, something which Unison had raised with the DHSC in April. And I think it would be fair to say, was that a UK-wide problem across the sector as well?

Ms Christina McAnea: Yeah, a massive issue.

Counsel Inquiry: And you can – explain that in England, concerns around pay continued right through into 2021. How significant was the issue of pay when it came to those crucial matters such as self-isolation?

Ms Christina McAnea: So this was massive, and there was a direct correlation eventually come out when you looked at the information about infection rates, that those homes that weren’t paying sick pay were more likely to have a higher rate of infection. And that, I think, I’m sure it’s in some of the figures – some of the papers that are here. So there was that correlation, and we all suspected there would be. Why wouldn’t there be, if you’d staff who were turning up to work because to not turn up to work meant you had absolutely no money? Because these are low-paid workers. There is no safety net for them, there’s no money, usually no money in the bank to tied you through over the next few months, as it were; you had to turn up to work to make money.

Counsel Inquiry: And in respect of Unison and the wider TUC, is it your opinion that this would have been obvious from – when in the pandemic that this would have been an issue?

Ms Christina McAnea: From day 1 of the pandemic. I think we started raising it certainly quite early on in meetings, that this was a major issue, and it would be a driver of infection if you were saying – if staff felt they had to turn up to work rather than take time off once they started – if they were being told to self-isolate or they were unwell.

Counsel Inquiry: Were there sufficient forums that this could be raised to give the government examples of on the ground experience of how this was impacting?

Ms Christina McAnea: Yeah, it was one of the key issues that came through the hotline that we had set up, you know, what – initially it was all about PPE and then it started to go on to “I can’t afford to take time off” or “I’ve been told I need to – I’ve been pinged and told I need to self-isolate but I can’t afford to self-isolate” because they weren’t getting any money.

Counsel Inquiry: Mr Hancock told the Inquiry – now, this is in respect of pay to reduce staff movement across different care homes, and domiciliary care workers, he told the Inquiry:

“Personally, I would ban staff movement between care homes in good times as well as in pandemics because communicable diseases kill people in care homes all the time … You could easily re-jig the employment arrangements so that, if two care homes each employed people part-time, and then each of them could take a fewer number of people full time. It would lead to a decrease in flexibility, that’s absolutely true, but you could still work in one care home on a zero-hours contract and do something else when there weren’t any hours coming from that care home, for instance.”

And finally he went on to say:

“But why should we have care home workers on zero-hours contracts anyway?”

Do you have any comments on how something like that would impact on workers in the industry? So is it practically achievable and something the TUC would support?

Ms Christina McAnea: So a large number of care workers will have more than one job, whether that’s in two care homes or more than two care homes, or there might be a care worker and a domiciliary worker, or they might work in a care home and work in a supermarket. I mean, it’s very common to have more than one job. And I think banning them outright like that, without – in a system that is so fragmented as it currently is, I can’t see that working. And I can’t imagine that this would even be considered if you were talking about – you know, if you said this would apply to nurses or doctors who worked in two different medical centres, without thinking through what the compensation would have to be for those workers.

But somehow when it came to care workers, no consideration was given to whether they should be compensated for this when it was proposed at the time. And I remember raising it vociferously at meetings with people, saying, “These are already low-paid workers, and you’re telling them you’re going to ban from working anywhere else.”

Counsel Inquiry: Can I ask you about the infection control fund, please, which was announced in May 2020.

Ms Christina McAnea: Yes.

Counsel Inquiry: And you explain that was as a result of campaigning and lobbying by Unison. Was the infection control fund a fit-for-purpose answer to what Unison had been lobbying for?

Ms Christina McAnea: So we had pushed very hard to say, “You’re going to have to start – find a way to fund people to be able to stay off sick and get paid some kind of sick pay”, and we were pleased when initially that seemed to be the answer.

But no, right from the beginning when we saw that this was actually going to be more flexible than we thought it should have been, and therefore it would be – although there was a set of criteria that had to be met, it wasn’t, in our view, sufficiently robust to say: this is primarily to be used for paying staff when they’re off sick.

And therefore, we were getting reports that large numbers of home care providers and, you know, care homes weren’t using it for that purpose.

And we were constantly going back at these meetings to say – you know, we’d be getting told, “Oh, it’s now in place, it’s now working”, and we’d say, “No, actually, we’ve just done a quick survey” – and we were getting great – people were responding to the surveys at that time, and we were able to come back and say, “X percentage of staff are still not getting paid sick pay.”

So it wasn’t working.

We told them that the day they launched it, that they had made it too lax.

Counsel Inquiry: If I can – again, I’m so sorry, just because we’re pushed for time, if you can try to keep your answers shorter.

Funding in Wales, it’s right that there was a scheme to enhance Statutory Sick Pay. Did the schemes work differently and was either one of them better in your view?

Ms Christina McAnea: They did work differently. I think the Welsh one was a bit stricter in terms of the – saying that it had to be for paid sick leave. The English one was not robust at all and there was no proper monitoring of it. And afterwards, when we asked them to at least come back and tell us what it had been spent on, that was never done.

Counsel Inquiry: Can I ask you, please, now about unequal impact across the pandemic. What were your organisation’s concerns or what were you hearing of about the impact of the pandemic on ethnic minority members of the workforce?

Ms Christina McAnea: Yeah, very quickly after – into the pandemic it became apparent that black and ethnic minority workers were being disproportionately affected by it. We started to get a lot of reports on this, and we started doing our own – not until perhaps a bit later, but we did our own survey of black workers within – sorry, I should explain that in Unison we use the term “black” to encompass black and ethnic minority workers.

So we did our own survey of our own black and minority ethnic members to ask them about this, and it was obvious from the figures as well that we were getting through, once they started monitoring, there was race monitoring taking place in terms of deaths and numbers of people getting Covid that you could see very quickly that it had a massive impact on black communities.

Counsel Inquiry: In Wales, the BAME Covid-19 Advisory Group was convened to advise the First Minister on disproportionate impact and number of recommendations were made. Was there an equivalent structure set up in England?

Ms Christina McAnea: No, not that I’m aware of. Not that we were involved in.

Counsel Inquiry: And do you think that the recommendations of the group in Wales was something that was acted upon by the Welsh Government and is that an example of good practice?

Ms Christina McAnea: Yes. I mean, the fact that the Welsh Government took this more seriously, that they had set up a group, and that they had recommendations to follow was definitely something that should have happened in England.

Counsel Inquiry: And the Inquiry has also heard evidence about the All-Wales Covid-19 workforce risk assessment tool, and is that something that should be implemented in the event of a future pandemic or something like that?

Ms Christina McAnea: There should be a risk assessment tool that applies to all staff, and again, the care sector is so unstructured as opposed to the NHS that you absolutely need a proper risk assessment methodology toolkit to make sure it has an impact in that sector, because a lot of the time you’re talking about small care homes or even a large care home or a domiciliary care group. It’s very different from a large hospital and the way they would structure – and they’ll have their own head of health and safety, for example. You wouldn’t get that probably in a care home.

Counsel Inquiry: Can you give a brief overview, perhaps, of how the risk assessment tool would have helped.

Ms Christina McAnea: So having a risk assessment tool that was easy to follow and understand, that employers are familiar with, that unions could have gone in and said, “Have you followed this?”, that workers would have been familiar with it, I think it would have helped the managers in the sector, as well, to be able to deliver, you know, better care for their workforce if they had something simple and easy to follow.

Counsel Inquiry: Can I move on, then. One of the things you mention in your statement is the possibility of having a register of social care workers for England, and you explain that that’s something that does exist in the other nations of the UK. Why would registration or having a register of care home workers have been of further assistance in England and are there any examples of how that did help in the devolved nations?

Ms Christina McAnea: I think once you’ve got that, it means you can see – there is some, then, central control, you have some central information about where staff are. You have some central information about what their training is, have they had some minimum training? In England, there is nothing like that, and there’s such a high level of turnover among the workforce that I think it must be incredibly difficult to keep control of that.

And, you know, given the kind of work, the nature of the work that care workers do, for me, it’s almost unthinkable that you would have people going into individuals’ homes or giving close personal care to people in a care home where there isn’t a register, and that there isn’t minimum standards of training available to people.

I would argue that having that surely must help with outcomes in any kind of setting.

Counsel Inquiry: Can I please move on to the topic of testing, and I’m going to ask for a document to be brought up on the screen, please. It’s INQ000119063.

This is a note of a meeting on 30 November 2020. And again, this was with the DHSC. And on page 2, second paragraph, please, it discusses the issue of testing, and it says:

“After many months of us raising the issue they are at least finally capturing data that at least allows them to see what employers are not testing staff properly even though they are then not really doing anything with that information.”

What was the issue, if you can help us, with testing that Unison had been raising?

Ms Christina McAnea: The fact that so many – although they were saying that they were testing staff the information that we were getting back was that that wasn’t actually happening on the ground. You know, I think we’ve submitted some evidence that shows the percentages, you know, people were coming back and saying to us, I think – April 2020, 99% of all care workers in our survey had not been tested for Covid-19, and even in May 2020, large numbers of care workers still hadn’t been tested for Covid. And so it was an example of what I was saying earlier, that we were getting told one thing by central government or by the DHSC, yet the information that we were getting back from care workers on the ground disputed that.

And we were having to then present this evidence to them and say: well, we’ve just done this survey that shows that this is not happening.

Counsel Inquiry: So the data that’s referred to about the data they are finally capturing, what was that data?

Ms Christina McAnea: So they were trying to capture how many care staff were being tested and they were getting regular updates. I mean, I think every week we were getting updates on the percentage of staff that had been tested and how frequently they’d been tested.

Counsel Inquiry: And what would Unison want to see the government have done with that data?

Ms Christina McAnea: So what they should have been doing was to check whether this was – you know, what was the level of infection looking like? Were there any particular areas where that infection rate was particularly high?

And, I mean, somebody like the CQC should have been going in to check why you were seeing high levels of infection in particular areas. And of course, because they’d suspended visits, then no one was doing anything with it. It was almost like they were just collecting the information for the sake of collecting it, but not actually acting on it.

Counsel Inquiry: That document can come down, please.

Do you think there was enough surveillance or data available on testing of domiciliary care staff?

Ms Christina McAnea: No, that was another area, I think, that was very lax. There was very – as I – it was bad enough that there was next to nothing happening in the care homes, but actually I’d say, if anything, it was probably worse in domiciliary care. And the information and guidance going out to domiciliary care workers was appalling in terms of what PPE they should have been using, when they should be using it, when they shouldn’t be using it. And testing was very lax, is my recollection for domiciliary care workers.

Counsel Inquiry: Just picking up on something you’ve just said, would it have been then helpful if there had been more guidance specifically in relation to domiciliary care, because it’s so different?

Ms Christina McAnea: Yeah. I mean, it – I think I said earlier, or if I didn’t, I should have, it felt that they were making up the guidance on the hoof. You know, there was no real thought. You know, we’d have conversations and one day they’d say, “Oh, I think you can use a mask – domiciliary care workers can use a mask for a whole day” or …

And then we’d push back and say, “Well, what if they’ve got ten clients in a day or 20 clients in a day? Does that make a difference?”

“Oh, well, maybe they should only use it for ten clients.”

And somebody else would come in with another suggestion. And clearly no thought had gone into this. There was no scientific back-up to it. You know, nobody was saying, “Well, this evidence shows that if you use them for X amount of time or X number of clients …”

And that would never have happened in the NHS. You know, there was much clearer guidance for the NHS about when you would use PPE, what type of PPE.

And they have a structure to escalate problems. If you’re a domiciliary care worker, basically you’re a lone worker most of the time. You might – occasionally you might be with one other person. You don’t see your supervisor very often. You’re sent the list of clients on a phone app and you go out and visit your clients.

Counsel Inquiry: Apologies to change the subject again.

Ms Christina McAnea: Okay.

Counsel Inquiry: I have two final topics I would wish to ask you about. The first is the regulatory inspection regime over the course of the pandemic, and just two questions on this, please.

Was the lack of regulatory inspections something that may have put workers in homes at risk?

Ms Christina McAnea: Oh, I’m sure it did. I mean, it seemed strange to me, and still does, that the CQC stopped going out to do inspections at a time of a pandemic. And I know the government’s view at the time was red tape’s a disadvantage, et cetera, but –

Counsel Inquiry: Sorry, could I possibly – if you can, focus on the impact it might have had on the workers.

Ms Christina McAnea: Well, if CQC were going in and looking at homes where, one, PPE was locked in a cupboard and staff couldn’t get it, surely they could have done something about it. If they’d gone in and seen there was inadequate PPE, you’d have hoped they would have actually done something about that, and maybe reported it back to somewhere to make sure they were getting PPE.

If they were able to see that there were high levels of infections in particular care homes, then couldn’t questions have been asked about that? And somebody sent in to assist the care home with looking at infection control, and that didn’t – none of that was happening, you know, because there was nobody going in to do the infections or pick up on any of these particular issues.

Counsel Inquiry: Then the final topic, please, which is vaccination as a condition of deployment.

We know different approaches were taken to this across the UK. Do you feel as though the trade unions were sufficiently involved in conversations such that concerns could be raised about that policy in England or the potential policy in the devolved nations?

Ms Christina McAnea: We were – we had huge reservations about going down the route of compulsory vaccination, and for a number of reasons, and these were not taken seriously by the government. What astonished me was it was the only time the government ever said that they could actually implement something nationally across the care sector. So whenever we’d raised anything with them about the infection control fund, making it mandatory, or anything else, or distribution of PPE, it was always “We can’t do that because it’s nothing to do with us, this is all done locally”, but somehow when it came to mandatory vaccinations they suddenly found that they could make it mandatory across the whole sector.

But I think it sent out entirely the wrong message at a time when you were trying to encourage staff to stay in the sector or encourage staff back to the sector. To say this was the only sector where you would have mandatory vaccinations, because they didn’t introduce it in the NHS, they were only bringing it in in the care sector, and many staff felt that they hadn’t had it properly explained to them what vaccination would mean, you know, they had concerns about it, there was many black and ethnic minority staff who had very serious concerns about this for a range of very good reasons.

Counsel Inquiry: Now, across all the topics that we have looked at, and my final question for you, does this underscore the significance of engagement with the sector and those that represent the sector so that governments really do have a picture of what’s going on on the ground to influence their decisions?

Ms Christina McAnea: Yeah. There needs to be centralised control over what’s happening in the care sector. And that, I would say this, has to include representatives of the workforce. It’s not a particularly well-unionised workforce but that’s not to say that – you know, we’ve got now about 180,000 members across the sector, that unions should have a say in it, because we’re able to make that direct link with people on the ground which will often show a different story from what you might hear back from the management or the providers or the commissioners.

Ms Paisley: Thank you very much.

My Lady, that’s all the questions I have. I understand there are some Core Participant questions.

Lady Hallett: Thank you, Ms Paisley.

Ms Morris.

Ms Morris is just there.

Questions From Ms Morris KC

Ms Morris: Thank you.

Good afternoon, Ms McAnea.

Ms Christina McAnea: Good afternoon.

Ms Morris KC: My questions are on behalf of the Covid Bereaved Families for Justice UK.

Now, my first topic was about regulation oversight of the care sector. Ms Paisley has already touched upon and asked you about your views about the impact of the CQC and in fact Care Inspectorate Wales pausing inspections during the pandemic.

Ms Christina McAnea: Yeah.

Ms Morris KC: I wanted to ask you more generally, please, from the perspective of your organisation, what was your overall assessment of the effectiveness of the regulatory and enforcement framework for adult social care during the pandemic?

Ms Christina McAnea: It was very poor. The fact that they did stop the inspections was astonishing. You would think, at a time of a pandemic, the regulators would have stepped up rather than stepped backwards. So I was – we were astonished by this decision. And, you know, as I’ve – it would have, I think, caused harm to the sector, both to the staff and to the patients.

Ms Morris KC: Thank you.

Moving forward beyond the pandemic, the Inquiry has heard about the independent review into the regulation of the care sector in 2024, we’ve heard it referred to as the Dash review, which found that after the pandemic, the overall inspections had continued at reduced level, and said there had been what’s called a stark reduction in CQC activity between 2019 and 2023, and I think there’s around half the inspections in 2023 that there had been in 2019.

The Inquiry heard from Ms Cridge yesterday, from the CQC, that there was what she’d called a “failed transformation” of the CQC after the pandemic, and she acknowledged that the CQC was still only on the road to recovering its pre-pandemic inspection levels. I want to ask you if you agree with this section of the Dash report, please:

[As read] “The review concluded that poor operational performance is impacting on the CQC’s ability to ensure that health and social care services provide people with safe, effective, compassionate care, negatively impacting the opportunity to improve health and social care services and, in some cases, for providers to deliver services at all.”

So that’s the 2024 position. Do you agree with that?

Ms Christina McAnea: I do, completely.

Ms Morris KC: So does that indicate that there’s still an ongoing concern?

Ms Christina McAnea: Yes. Social care is still very much an afterthought when it comes to inspection, training, regulation, certainly in England, but – it’s not that much better elsewhere, but it’s certainly much worse in England.

So, yeah, the – we’re just – we’re slowly moving towards a situation, I think, where the government, the current government has got a vision for a social care sector, and has set up a partnership arrangement, working arrangement, but that won’t necessarily impact on the inspection regime at this point in time.

Ms Morris KC: Thank you. Final topic, connected to regulation, but it’s kind of about data.

Did you consider that there was a lack of clarity in the institutional responsibility for addressing disproportionate mortality in the care sector as well as monitoring of basic data, for example on deaths, who died, when, and why?

Ms Christina McAnea: Yes. It’s been quite hard to get detailed information, and I think there was probably a lot of underreporting, certainly in the beginning, of what patients died from, or care – you know, people who were in care homes, what they died from. And certainly for the staff too, that many of them would have got ill and possibly died and it wouldn’t necessarily have been recorded as Covid-related.

Ms Morris KC: So in terms of those receiving care and the carers themselves?

Ms Christina McAnea: Yeah.

Ms Morris: Thank you, that’s helpful.

Those are my questions, thank you.

Thank you, my Lady.

Lady Hallett: Thank you, Ms Morris.

Mr Straw.

Mr Straw is that way.

Questions From Mr Straw KC

Mr Straw: Good afternoon. I represent John’s Campaign, Patients Association and Care Rights UK.

Firstly, you say in your statement that Unison repeatedly raised the need for clear guidance with government and there was much confusion with the guidance that the government produced. You’ve already touched upon PPE guidance, but was guidance on other issues, not just PPE, unclear and confusing?

Ms Christina McAnea: As in what kind of other guidance, did you have …?

Mr Straw KC: Guidance on other aspects of the response in the care sector to the pandemic, visiting, end of life, things like that?

Ms Christina McAnea: Yes, certainly around visiting there was, I think, quite a bit of confusion. Again, that was something that would come through the hotline that we’d set up with – for our Unison members, that people were a bit concerned about what the advice was, for example, on visiting. And the problem always felt that the guidance that went to the care sector was very much a kind of – either an afterthought or it was done probably without much involvement from those who either commissioned, delivered, or delivered the service, or those who worked in the sector.

Mr Straw KC: Can you say what sort of adverse impacts that unclear and confusing guidance had on the ground?

Ms Christina McAnea: Well, I think certainly for the workforce that the unions would represent was one, either they couldn’t get clear guidance, it wasn’t available on the website in a way that was accessible to them, or didn’t reflect their situation at work. And there was a lack of consistency, I think, across the care sector that perhaps you didn’t necessarily – I’m not saying it was all perfect in the NHS by any means, there was lots of issues in the NHS too, but if you think of the fragmented nature of the care service, the lack of guidance and the lack of a structure where you’ve got senior staff who were well trained, able to pass on clear information and guidance to perhaps the sort of – I hate to use the term “basic” level but, you know, the main level of care workers, that’s always an issue in the care sector.

So unless some other organisation is providing clear guidance, you can’t just rely on the managers within that home or the people who are running the home, because one, there’s very few of them, probably, and they themselves may not be that well trained.

Mr Straw KC: Okay. A slightly different topic. In paragraph 96 of you statement you note that:

[As read] “Nothing was ever done when complaints of malpractice were reported to the CQC or the local authority”.

What changes should be made to ensure that an effective mechanism for responding to complaints is in place?

Ms Christina McAnea: So again, I think it goes back to making sure that there is some sort of centralised system, or if not centralised, a recognised structure across the country where people are clear who has the key responsibility. Now, whether that’s the local authority, whether it’s the NHS, or it’s a new body that’s set up, there is that lack of clarity about who has the responsibility and who people are accountable to in the care sector. And I think – a lot of this goes back to major structural problems within the care sector, because there isn’t – if you said to somebody in a care home, if something goes wrong here, who do I complain to?”, a lot of people won’t know. Whereas you would – in other organisations that provide care or health, you probably would know.

Mr Straw KC: And just very briefly, you said earlier that the CQC’s inspection activity was very poor and caused harm to the sector including to patients. Can you touch upon what sort of harm it caused to patients?

Ms Christina McAnea: Well, I would refer to – you know, the answer I just gave to your colleague there. The fact that the CQC weren’t going in to check meant that things like high infection rates in a particular care home weren’t being properly picked up and addressed. The fact that there was no – nobody going in to inspect and check whether there was – adequate PPE was provided or that staff had been trained on how to use it meant there was probably more likely to be cross-infection, you know, with staff not – either not having the right PPE or not having the right training on what to do with the PPE, though you’re probably more likely to get infections between patients if staff are going in and out of different rooms, or if it’s domiciliary care if they’re visiting people at homes.

So all of that would have added to, you know, pressure on patients and a higher risk to patients.

Mr Straw: Okay. Thank you very much.

Lady Hallett: Thank you, Mr Straw.

Ms Weston. Where’s she gone?

Oh, I’m so sorry. Yes, you don’t look like Ms Weston.

Questions From Mr Clarke

Mr Clarke: Good afternoon, Ms McAnea, I ask questions on behalf of Frontline Migrants Health Workers –

Lady Hallett: I’m not sure your –

Mr Clarke: Is that better?

Lady Hallett: That’s much better, thank you.

Mr Clarke: Great.

The first topic is about the infection control fund and sick pay. At paragraph 50 of your statement you explain how many care homes refused funds from the ICF due to fears from employers that paying full sick pay to self-isolating workers would set a precedent.

And I’m not going to ask to pull it up, but it’s INQ000119075, which is a series of minutes from a DHSC meeting from October 2020 noting that care providers were also refusing funds and the fear that this would set a precedent for workers, and at your paragraph 54 you describe the concern on the part of providers that workers would call in sick after a heavy night.

Can you give us your view on the attitude that care home providers had towards the workers at this time?

Ms Christina McAnea: So I wouldn’t like to say this was all care providers, because clearly there are some excellent care providers so I don’t mean this to be – it’s not a blanket statement, but there was a sufficiently high number of providers who had a very poor attitude towards their staff, and this is just – this is basically just the tip of the iceberg. I have to say I sat through many meetings, and so did my colleagues, where this was some – the tone of this was something that would come across regularly, where it was, “We don’t want to pay you sick pay because it will set a precedent, people will think they’re entitled to sick pay afterwards” or “We don’t want to pay pick pay because they’ll all basically be, you know, taking advantage of it and going off sick even when they’re not sick because suddenly we’re going to pay them.”

And it’s very much, depending in the care home, it was the culture of these are people you can’t trust, these are low-paid workers, you can’t trust them. It was quite shocking, to be honest, in fact very shocking, that that was the attitude.

Even during the pandemic that was still the attitude of some care home providers – care providers.

Mr Clarke: And at your paragraph 51 you explain that Unison raised concerns about the ICF when it was launched?

Ms Christina McAnea: Yes.

Mr Clarke: About the lack of mechanisms to enforce and monitor the use of how the funds were allocated, and Helen Whately MP replied saying that they were allocated on condition that it was used for infection control measures.

You gave evidence earlier about the enforcement mechanisms for the ICF being insufficiently robust. Can you help us with what you think a more robust system might have looked like.

Ms Christina McAnea: So what we were asking for was that it be mandatory, that it be used to pay for sick pay and that was – we were never successful in getting that. So the government come up with – I think we managed to get the word something like – I can’t remember the exact wording now, something like one of the uses of it would be to pay for sick pay, but there was a list of other criteria that it could be used for. And it was clear that some care providers were taking the money but not using it to pay for sick pay.

And I remember being at meetings and saying to them “Is this being monitored? Are you asking questions? Who’s setting the terms of reference for this? And how are you going to make sure that those who take them – up the fund are using it appropriately?”

But it was considered not sufficiently important at the time. So nobody ever did that. It was never properly followed up, and there was no real mechanism to enforce it.

Mr Clarke: Thank you. My second and final topic is about the movement of workers between care settings. At your paragraph 68 you recall in a meeting in July 2020 that DHSC explained that movement of care staff between settings was one of the main reasons behind the spread of the virus, and you’ve given important evidence today about agency and domiciliary workers, who of course are a key category of workers here in terms of movement, as you’ve explained, because of the likelihood they’ll move between multiple workplaces?

As such workers often lacked an identifiable employer to raise concerns to, or unionise against and many felt unable to push back when workplaces weren’t complying with relevant guidance, how do you think these kinds of factors, in terms of conditions of domiciliary work, has contributed to the spread of the virus?

Ms Christina McAnea: Certainly the information we got back when we surveyed black and ethnic minority workers, in particular, was that many of them felt afraid to raise issues and concerns that they had, and the fact that so many of them do work for more than one employer is directly related to the fact that the pay is so poor in the sector and it’s so precarious, so they’d be on a zero-hours contract with one employer but they needed some specific income from another employer.

Without a doubt, I’m sure this impacted adversely on patients, the fact that staff felt they had to still take on more than one job and move between them.

Mr Clarke: Thank you very much. Those are my questions.

Lady Hallett: Thank you very much, Mr Clarke.

That completes the questions we have for you. Thank you very much indeed for your help and the help of your colleagues in preparing the statement and then your coming on to speak to it. Thank you.

The Witness: Thank you, my Lady.

Lady Hallett: Very well. I shall return at 10.00 tomorrow.

(4.22 pm)

(The hearing adjourned until 10.00 am the following day)