Being candid about COVID-19: preparation for the public inquiry

The COVID-19 pandemic has presented the biggest challenge in the history of the NHS. It has driven an unprecedented level of demand and required an equally unparalleled response. The NHS tackled (and achieved) many things in its COVID-19 response that, prior to 2020, many would have said were impossible. However, it is widely accepted that some areas of the COVID-19 response, including, of course, areas outside the NHS, were not as they should be. It was therefore only a matter of time before the government agreed to some form of public scrutiny of the pandemic response as a whole. The prime minister has announced that an independent public inquiry into the COVID-19 pandemic will be established, which he says will enable the ‘state [to discharge its] obligation to examine its actions as rigorously and candidly as possible and to learn every lesson for the future.’  A tall order.

Establishing the inquiry under the Inquiries Act 2005 means that this inquiry will have the highest degree of formality and legal powers possible, with legal powers to compel witnesses to give evidence, provide legal safeguards and, perhaps most importantly, to set limits upon the government’s discretionary control of the inquiry.

The terms of reference of the inquiry are yet to be announced, but many within the NHS are understandably keen to begin preparations now. The proposed start date of spring 2022 will soon be upon us and it is clear that the NHS’s response to COVID-19 will be considered as part of that inquiry.

From my experience of acting as recognised legal representative in public inquiries, in preparing for this inquiry NHS organisations should strive to be open and helpful as possible, as well as candid. They should honestly reflect where things could have been better and, with due respect to the inquiry chair when appointed, the inquiry ought to acknowledge these reflections and any scrutiny should account for the difficult context within which the NHS was rapidly responding at the time.

Open

There is a huge public interest in any inquiry, not least one into COVID-19. As responsible public authorities, it is vital that NHS organisations are open. They should take steps now to ensure that documentation and other key information sources are maintained and ready to share; usual document retention/destruction policies may have to be placed into abeyance.  Organisations will also need to tackle issues such as retaining organisational memory and audit trails, noting particularly that some of the governance around early COVID-19 decisions may not have been as robust as one may perhaps like, given the speed with which decisions were being made. Throw in the expected logistical issues associated with document management (such as establishing a secure repository for information, managing trawls of emails, telephone calls, text and WhatsApp messages - which each come with their own complexities), as well as the expected staff turnover during/following the pandemic, and you have a substantial task that should not be underestimated. All should begin to tackle this issue now.

Helpful

Linked to the importance of being open with the inquiry is the importance of being helpful. The NHS is a complicated beast. For example, responsibilities of NHS bodies are, in the main, clearly set out in legislation. However, within the COVID-19 response, many barriers were rightly knocked down and operational strategy and delivery was often managed pragmatically, with integrated working among those on the front line and policy makers often assuming a greater role in co-ordinating the response than perhaps individual directors/boards. Key individuals and organisations should be prepared to clarify and explain the key issues that they tackled. An inquiry chair will be greatly assisted by organisations that want to help, want to share and therefore want to learn from what happened.

Reflective

Being the focus of a public inquiry is clearly not a comfortable experience. The whole of the NHS will, at some point, fall under the microscope of this public inquiry. Some aspects of the NHS - policy makers, key co-ordinators and so on – will no doubt be of more interest to the inquiry chair, who will need to probe those issues further. Others may have been more focused on day-to-day delivery and following overarching policy/direction. All such individuals and organisations will have different experiences and lessons to learn from what happened. 

Where individuals/organisations can demonstrate to the inquiry that they have shared and been as helpful to the inquiry as they can, and indeed have already reflected upon and learned lessons from the COVID-19 response, it would be useful for them to do so. That allows the microscope and focus of the inquiry to linger most on those who require scrutiny to achieve the inquiry’s stated aims of examining actions as rigorously and candidly as possible, and to learn every lesson for the future.

Jenna Wong is a senior associate at law firm Hill Dickinson.