Scottish COVID-19 public inquiry

The UK Government will also carry out its own inquiry alongside, which will include reserved matters affecting Scotland. 

Since both inquiries were announced in 2021, the RCN has continually said that nursing staff expect to be fully involved. 

Nursing staff have questions they want answered. For instance, why were they too often left without adequate Personal Protective Equipment (PPE)?  Why did we go into the pandemic with such a depleted nursing workforce?

Members want to look forward, ensuring that lessons learned are applied to policies and plans across health and social care. 

The Scottish COVID-19 Public Inquiry officially opened in May 2022. 

The RCN has successfully applied to be a Core Participant in respect of the Scottish Inquiry, on behalf of its members to ensure the voice of nursing is heard throughout.

The RCN has appointed Leslie Shand KC as an advocate for nursing staff throughout the inquiry. Leslie has a wide variety of experience in health-related matters.

Following calls by the RCN and others, the inquiry has committed to pay special attention to look at the unequal impact of COVID-19, and fundamental lessons must be learnt and applied in our health and care system.

Commenting on the Scottish Government’s proposals for an independent public inquiry into the handling of the coronavirus (COVID-19) pandemic, Julie Lamberth, Chair of the Royal College of Nursing Scotland Board said:

“Nursing staff have been instrumental in the response to the pandemic. They deserve to have their experience of working during Covid-19 understood. Our members welcome the opportunity this COVID-19 inquiry will present to share their perspective and ensure lessons are learned.

The inquiry must be accessible and provide the opportunity for the broad spectrum of the nursing profession across health and care to be represented. It is essential that the Scottish government reflects and learns from this pandemic and that the inquiry’s recommendations are made and implemented within an appropriate timetable.”

Members wishing to submit evidence to the inquiry can do so via our online form.

Public inquiries are conducted by independent bodies set up to investigate matters of public concern. Inquiries act independently from government. They investigate areas set out in their terms of reference, by hearing oral evidence from witnesses and reviewing large volumes of documents. They will publish their findings on what happened, why it happened and make recommendations to prevent it happening again. Inquiries do not decide civil or criminal liability or award compensation. 

Following the resignation of Lady Poole, Lord Brailsford has been appointed as the independent Chair of the Scottish COVID-19 Inquiry, effective 28 October 2022. Lord Brailsford was appointed as a Judge of the Supreme Courts in 2006. He was a Court of Session judge and member of the International Hague Network of Judges until October 2022.

The inquiry was officially launched on 25 May 2022.

As part of the planning process, the inquiry commissioned introductory research from academics, to assist it with decisions about the shape and direction of its investigation.

After the planning stage, the inquiry will begin an investigation phase, likely to include the following:

• A “Listening Project to hear about the lived-experience of those who have been affected by the COVID-19 pandemic. These accounts will make an important contribution to the work of the inquiry, helping it to build its understanding and to identify lines of investigation, and informing its final recommendations 

• Issue by the inquiry of an interim factual record of the key strategic elements of the handling of the pandemic 

• Structured calls for formal evidence and submissions, including any submissions about the interim factual record 

• Oral hearings. 

Later stages of the inquiry will include the release of a final factual record of the key strategic elements of the handling of the pandemic. It will also prepare reports which identify lessons and implications for the future, and provide recommendations, based on the evidence gathered during its investigation period.

The inquiry has not yet determined a date for public evidential hearings to start or where public hearings will be held. The inquiry, however, intends to livestream public hearings and make them available on its website (except for any hearings being held in private).

Further information about the inquiry can be found on the inquiry website.

Scottish Ministers issued the inquiry’s Terms of Reference on 14 December 2021, following a period of consultation. The inquiry will investigate the areas in the updated Terms of Reference which can be found here.

The aim of the inquiry is to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.

The Terms of Reference of the Scottish COVID-19 Inquiry list 12 areas the Inquiry will look at, in order to establish lessons to be learned and make recommendations for the future. The 12 areas cover aspects of health, education and support.

The Terms of Reference have been grouped into four “investigative portfolios” as follows:

• Portfolio 1 will consider the Public Sector response, including: pandemic planning by the Scottish Government, lockdown decisions and other restrictions and their impact, testing, isolation and outbreak management, vaccination strategy, the supply and distribution of personal protective equipment (PPE) and the requirement for shielding and associated assistance programmes. 

• Portfolio 2 will consider financial and welfare support to businesses and individuals, including the self-employed, together with the identification of keyworkers.  

• Portfolio 3 will examine the provision of health and social care services, to encompass care homes, including the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections. The portfolio will also consider the management and support of staff and the recognition, involvement and support of unpaid carers, the delivery of end-of-life care and the use of DNACPR (do not attempt cardiopulmonary resuscitation decisions). 

• Portfolio 4 will examine the delivery of education, certification and the impact on children and young people. 

On 28 October 2022, following the appointment of The Hon. Lord Brailsford as Chair to the Inquiry, the Terms of Reference were amended to make reference to a human rights-based approach.

People living in Scotland are governed by laws made under powers devolved to the Scottish Government and Parliament as well as by certain laws made under powers reserved to the UK Parliament. 

This means that if you live in Scotland, you may be affected by the investigations of both the Scottish COVID-19 Inquiry and the UK COVID-19 Inquiry. The website for the UK COVID-19 Inquiry can be found here.  

The Scottish COVID-19 Inquiry will investigate aspects of the devolved strategic response to the pandemic. Its investigation will, therefore, be in the fields of health, education and support etc. as per the four portfolios noted above. 

The UK COVID-19 Inquiry will examine, consider and report on preparations and the response to the pandemic in England, Wales, Scotland and Northern Ireland, in areas reserved to the UK Government and Parliament. In carrying out its work, the Inquiry will consider reserved and devolved matters across the United Kingdom, as necessary, but will seek to minimise duplication of investigation, evidence gathering and reporting with any other public inquiry established by the devolved governments.

The Chair has a wide range of powers to decide how the inquiry will be conducted. The Chair may compel the production of documents and summon witnesses to give evidence on oath and has responsibility for the final report and recommendations. 

A request from a Scottish inquiry for a witness statement or document is known as a “rule 8 request”.  

The Chair also has the power to issue a notice requiring a person to attend at a particular time and place to give evidence or produce a thing or document under their control. This is known as a “section 21 notice” under The Inquiries Act 2005. It is a criminal offence not to comply with a statutory notice from an inquiry.

The RCN has established a new public inquiry team, which includes legal professionals, and which will lead the RCN’s work on both the UK and Scottish public inquiries.  The RCN has applied to the Inquiry Chair for “Core Participant” status in relation to the Scottish COVID-19 Inquiry where relevant to RCN member’s interests. If granted, this status will afford the RCN the opportunity to see evidence that is relevant to its interest in the inquiry, to make opening and closing statements at the hearing, to submit questions for witnesses and to see the draft reports prior to publication.  

The RCN seeks to amplify the voice of nursing as a whole at the inquiry rather than to champion any individual cause or interest. It will do so by holding those in power accountable for decisions made which affected nurses, nursing assistants, midwives and healthcare support workers and by sharing the experiences of its members. 

If you are an RCN member and wish to submit evidence to the Scottish COVID-19 public inquiry, please submit an online enquiry form in the first instance. Our in-house public inquiry legal team will be able to advise you on whether your contribution falls within the submission the RCN is putting together.

If you receive a Rule 8 request from the Inquiry, the RCN’s public inquiry team can provide advice and support in drafting your statement and/or pulling together your documents. Please contact RCND via the online enquiry form for a referral. 

Witnesses are not ordinarily entitled to legal representation at an Inquiry and so the RCN cannot appoint a solicitor to act on your behalf in this instance. However, the RCN public inquiry team will be able to talk through the Inquiry process with a witness and can provide support in advance of a witness giving evidence.

For a Scottish Inquiry, a “rule 12 warning letter” must be sent to anyone who is likely to be the subject of criticism. If you receive a rule 12 warning letter, please contact RCND via the online enquiry form for a referral.

If you believe you should be a Core Participant in the inquiry, please contact RCND for a referral to the public inquiry team. Our lawyers can talk you through the pros and cons of applying for Core Participant status and can help you secure independent legal representation if the application is granted. 

The deadline for applying to become a Core Participant closed on 16 September 2022. However, applications submitted after this date may still be considered by the inquiry, if there is good reason to do so.

Members who achieve Core Participant status in their own right are entitled to separate legal representation. The RCN can advise and assist members in applying for funding from the inquiry to meet the cost of their independent representation.

A detailed timeline for the inquiry has yet to be released.

This is, however, the biggest public inquiry Scotland has undertaken, and the scope of the Terms of Reference cannot be understated. The inquiry is likely to take several years to complete.

By running the inquiry through portfolios, the Chair will be able to produce regular reports providing analysis, findings and recommendations, which can be considered and implemented whilst the inquiry proceeds with the next portfolio. These reports will be written in plain language and will be available to the public. 

The inquiry cannot establish civil or criminal liability, and its report and recommendations will not be binding, however, in practice, they are highly influential in policy formation and may be used to instigate separate civil or criminal proceedings.

If you are an RCN member, please contact RCND via the online enquiry form for a referral to the public inquiry legal team.