The COVID-19 Public Inquiry into the handling of the pandemic in the UK is now underway.

In May 2021, the then Prime Minister, Boris Johnson, announced that the Government would establish an independent statutory Public Inquiry into the COVID-19 pandemic. The chair of the Inquiry, Baroness Hallett, was appointed in December 2021. Following a public consultation, the final Terms of Reference were published on 28 June 2022.

The Inquiry will consider and report on preparedness and resilience for dealing with the pandemic; the public health response of the UK as a whole; the response of the health and care sector across the UK; and the economic response and its impact, including Governmental interventions. These will be considered up to and including the date of formal establishment of the Inquiry on 28 June 2022.

On 21 July, the chair, Baroness Hallett, gave an opening statement to officially launch the Inquiry and described a modular and sequential approach to investigating the key lines of enquiry set out in the Terms of Reference.

Module 1 (focusing on resilience and preparedness) has already taken place and Module 2 (focusing on core UK decision making and political governance) is underway, so we examine below how Module 3 may impact the health and care sectors.

Module 3: the consequences for healthcare

The third investigation in the COVID-19 Inquiry opened on 8 November 2022. Baroness Hallett, Chair of the Inquiry said on opening Module 3:

“The pandemic had an unprecedented impact on health systems across the UK. The Inquiry will investigate and analyse the healthcare decisions made during the pandemic, the reasons for them and their impact, so that lessons can be learned, and recommendations made for the future. 

“During the consultation on our Terms of Reference, bereaved families and healthcare workers told me candidly about the devastating and prolonged impact of the pandemic on healthcare. Those most affected by the pandemic deserve answers on what happened and why. I am determined to get those answers.”

Through exploration of 12 key areas for investigation, Module 3 will examine the consequences for healthcare of the response to the pandemic, looking at how healthcare systems responded, the impact on systems and services, including on patients, doctors, nurses and other healthcare staff. It will consider the primary, secondary and tertiary healthcare sectors and services and people’s experience of healthcare during the pandemic, including through illustrative accounts. It will also examine healthcare-related inequalities.

The Inquiry is in the process of gathering evidence for the purpose of Module 3 to assist the Inquiry in identifying the issues upon which the Inquiry needs to take evidence, whether in written format or orally Your organisation may have provided the Inquiry with a questionnaire response in December 2022. Those responses are not intended to form part of formal evidence, or to be disclosed within the Inquiry. The responses have however assisted the Inquiry legal team  to identify those organisations who will be sent Rule 9 requests, and the issues to be addressed by recipients of Rule 9 requests in statements or through disclosure of documents. Many healthcare bodies and organisations have now received and responded to preliminary Rule 9 requests, but this is an ongoing process and more healthcare providers may yet receive one.

A Rule 9 request is a reference to Rule 9 of the Inquiry Rules 2006 and entitles the Inquiry to send a written request for evidence, detailing the disclosure required. Requests made under Rule 9 are the first stage of information gathering and may seek witness statements and disclosure of documentation. Rule 9 requests can also be used to request further evidence or request the attendance of a witness to give oral evidence during the public hearings.

Rule 9 requests are considered a less formal request by an Inquiry for evidence. This is because a request under Rule 9 does not give the Inquiry the power to compel the provision of documents or statements. However, failure to comply with a Rule 9 request puts your organisation at risk of received a Section 21 Notice which attracts the power to compel the provision of evidence under Section 21 of the Inquiries Act 2005. Sanctions can be imposed on individuals and organisations who fail to comply with a Section 21 Notice.

Rule 9 requests are sent because the Inquiry believes the recipient has evidence that will be of assistance in establishing what happened, why events happened and to learning lessons for the future. They provide the recipient of the request with the opportunity to share their experiences and potentially influence positive changes. There are also professional and regulatory duties for many organisations and individuals working across the health and care sectors to assist public inquiries and give evidence.

Rule 9 responses will be formal evidence which can be referenced in the Inquiry hearings and reports. They will be analysed and used to inform and shape further enquiries, and what oral evidence that Inquiry will hear when the hearing of Module 3 evidence begins in 2024.

With extensive experience in supporting health and social care providers and bodies in high profile public inquiries, and with experience of supporting providers to prepare for the COVID-19 Inquiry, Hempsons is here to help.

Hempsons, leading health, social care and charity lawyers, support the full range of NHS organisations, advising on strategic and operational issues.

Our healthcare team is a market leader in the healthcare sector. We work with approximately 120 trusts and foundation trusts nationwide, providing unrivalled strength in depth for our clients to help them meet the challenges they face. Our solicitors have extensive experience of inquiries as well as inquests, investigations, information governance and all of the areas of law required to assist you as you navigate the challenges of the months, and potentially years ahead.

We are perfectly placed to guide your preparation for the COVID-19 Inquiry, through extensive experience gained in supporting health and social care clients in statutory and non-statutory inquiries, including:

• The Manchester Arena Inquiry
• The Infected Blood Inquiry
• The Jimmy Savile Inquiry
• The Francis Inquiry
• The Mubarek Inquiry
• The Shipman Inquiry
• The Bristol Royal Infirmary Inquiry
• Rochdale Historic Abuse Review
• The Neale and Kerr/Haslam Inquiries

Learning and patient safety is at the heart of everything we do. Whatever role your organisation ultimately has in the Inquiry, we will work with you to capture and implement learning from the challenges faced across the NHS during the COVID-19 pandemic.

Rule 9 requests

If your organisation has received a Rule 9 request from the Inquiry, our experts can:

• advise on the legal standing of a Rule 9 request and response
• support the preparation of the response of your organisation to the Rule 9 request, including (as required):
  • fact checking for accuracy
  • evaluation of supporting evidence
  • evaluation of the response against the Rule 9 request and the Terms of Reference
  • supporting learning
  • ensure the response complies with the Inquiry specifications
• advise on disclosure of documentation
• liaise with the Inquiry legal team regarding points of clarification, disclosure, and redactions

Intelligence and guidance

We can provide access to a wealth of information, expertise and guidance through:

• our up to date COVID-19 information portal where you will find key legal updates and considerations
• timelines of key national dates, decisions and guidance against which to track the actions of your organisation
• our established dedicated COVID-19 team who meet regularly to discuss intelligence, developments and how we can best support our colleagues across the health and social care sectors
• our COVID-19 Inquiry series which launched in the autumn of 2021, which shares our knowledge of the COVID-19 Inquiry, and our wider experience and expertise on public inquiry related subjects
• regular contact with trust inquiry leads to share intelligence and guidance as the COVID-19 Inquiry takes shape

Document management

As the Inquiry sends out Rule 9 requests, your organisation may be asked to provide disclosure of documentation. Through our expertise we can provide support in terms of:

• identifying and securing relevant documentation
• cataloguing and sequencing documentation for easy access and searches
• system and data management
• information governance
• evaluation and analysis of documentation
• disclosure to the Inquiry
• requests for disclosure external persons, patients/relatives, the press, etc

Inquiry preparation

We can assist your organisation and your staff in all the practical steps which form part of preparation for and contribution to an inquiry such as this, by:

• providing guidance on preparing witness statements, ensuring that all the necessary information is secured
• providing knowledge sessions and guidance to ensure all staff involved in the Inquiry are informed of the process, the likely timescales, and feel supported and remain engaged
• in preparation for giving evidence, we can arrange for witness familiarisation training, so that staff feel as comfortable and supported during what will inevitably be a stressful and potentially distressing process

Strategic advice

Our extensive experience means your organisation can be confident in the strategic advice that we provide. We can advise the board on its legal duties and strategic considerations. Our healthcare team has extensive experience representing healthcare providers and professionals in criminal, regulatory and disciplinary matters. We are also an NHS Resolution panel firm for claims.

We can therefore provide strategic advice on any matters arising from the Inquiry, including:

• responding to Rule 9 requests
• disclosure issues
• duty of candour
• communications
• information sharing and effective management of the potential conflicts with stakeholders
• concurrent liabilities
• quality and reputational assurances
• patient safety, risk management and learning

There is no ‘one size fits all’. The support that we can offer can be tailored to be bespoke to the operational needs and experience of your organisation. To assist you in assessing your needs, there are three levels of support that we propose. However, these are for illustrative purposes and we are happy to work with you to evaluate the specific needs of your organisation.

Inquiry preparation and representation will be offered once the scope of the Inquiry and the Terms of Reference are known.

Level 1

1. Intelligence and guidance
2. Training
3. Learning

Level 2

1. Intelligence and guidance
2. Training
3. Learning
4. Document management

Level 3

1. Intelligence and guidance
2. Training
3. Learning
4. Document management
5. Strategic advice

If you would like further information, or a bespoke support package proposal, please get in touch with a member of our COVID-19 Inquiry team: