This week the High Court in London ruled that the UK Government policy to allow the discharge of untested patients from hospital to care homes during the early stages of the Covid-19 pandemic were irrational and therefore unlawful. The policy failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission
A similar legal challenge has not (yet) been brought in Scotland, where the Scottish Government adopted a similar policy. However following the ruling, Scottish campaigners and their legal representatives have called for clarity on whether the issue will be fully addressed as part of the Scottish Covid Inquiry led by Lady Poole and are demanding an explanation from the Lord Advocate as to why the Crown Office investigation into care home deaths in Scotland appears to have stalled.
Meantime, the Scottish Government has responded by saying that it plans to analyse the court findings in detail whilst the First Minister stated during First Minister’s Questions that “these are matters now rightly and properly that will be scrutinised by the public inquiry that is under way in Scotland”.
Lynne Gray, Head of the Health and Safety team in Burness Paull said in Scotland, the care sector continues to be scrutinised. As of March 2022 the total number of deaths sitting with the specialist unit set up by the Crown Office to investigate Covid was over 5000. Of those deaths, 1753 related to care home deaths that occurred before 21 May 2020. While of little consolation to the families, such a volume of investigations will take time. Any decisions on criminal charges are unlikely to be made until after the Scottish Public Inquiry where the issue of discharge to care homes and Scottish Government policy at the time will be scrutinised. Ultimately it will be for the Crown Office to determine the identity of any accused and nature of any charges but corporate homicide charges must remain a possibility.
Our specialist Inquiries team can help you and your business navigate these sensitive issues and take early preparatory steps to prepare for the upcoming Inquiry. We have experience preparing entities in advance of inquiries, and supported clients throughout the full life journey of an inquiry, from pre-commencement to recommendations, and onto subsequent litigation.
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