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.
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.
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:
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.
If your organisation has received a Rule 9 request from the Inquiry, our experts can:
We can provide access to a wealth of information, expertise and guidance through:
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:
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:
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:
Our COVID-19 team have delivered a series of seven seminars relevant to the forthcoming Inquiry. The recordings can be made available, or they can be remodelled and delivered in a way bespoke to the needs of your organisation.
These seminars cover:
We can provide tailored training on a range of practical matters to support whatever may be asked of your organisation in the Inquiry.
In whatever way we are able to support your organisation, our commitment to capturing, sharing and embedding learning will be at the core. Our commitment to learning will be a value-add, if you are in agreement to the sharing of learning at local, regional and national level.
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.
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: