2. Section Two - Topics for the Terms of Reference
The scope of an Inquiry’s remit is determined by the Terms of Reference. The Terms of Reference have not yet been set by Ministers. Therefore, this next section of the report will detail the range of views received by the public and stakeholders on what they think the Inquiry should cover.
The responses to this question were coded to take into account a range of responses. As detailed, the research method involved a structured analysis and interpretation by a team of analysts. Some of the nuances of some people's contributions may not be fully represented in this section, which aims to provide a more general thematic summary of all of the responses.
2.1 Lived experience
Before we move into the detail of the topics, central to them all was the view that a critical part of the design of the Inquiry could be integrating and balancing the different forms of experience that people have lived through (and still continue to live in). Specifically, a number of respondents expressed that the Inquiry could focus on ‘lived experience’.
“The Terms of Reference should state, not that the Inquiry will be informed by experience or evidenced by experience, but actually that it should be driven by people’s lived experience of their rights during COVID.” (Public sector, email submission)
The term ‘lived experience’ was used by a number of individuals and organisations to capture their belief that the Inquiry should prioritise collecting and examining personal knowledge (in the form of a testimony), gained from first-hand connections to the pandemic. Moreover, that this form of knowledge will be treated as being critical to the process of understanding the handling of the pandemic in Scotland. To facilitate this focus on lived experience, as discussed in the section about how the Inquiry could operate, respondents provided views on how to ensure that no one is excluded, that ‘everyone is heard’ and that people and organisations are supported to be able to provide their experiences.
2.2 Topic areas
Given the vast array of issues that were raised we have grouped them into six main areas. However, there is a degree of overlap between these topics. They are:
- health and social care
- pandemic preparedness
- key policy areas
- the ‘four harms’ (health, indirect health, society and economy)
- legal frameworks
2.3 Health and social care
This is a broad category, so it is broken down into, first, the respondents views on issues relevant to the healthcare system and then, second, social care and support. However, these are integrated systems and there are likely to be links and relationships between the two that will be important to consider within the Inquiry in relation to establishing facts, determining explanations and making recommendations.
The healthcare service
This section covers respondents views categorised into processes/system issues and workforce issues – all within the context of the healthcare service. These are largely issues that represent concerns to respondents, but there are also some topics that were put forward as examples of success – in terms of what worked well in order to identify and embed good practices in the future. For a summary, see Table 2 below:
Table 2: The healthcare service
Processes and systems:
Theme - Policies
- hospital discharge and planning
- decisions on who went on the ‘shielding’ list
- visiting policies
- cancelling surgical and elective activity
- restrictions on patients in psychiatric hospitals
- vaccine strategy, including roll-out to marginalised groups, access to vaccines to those without a permanent address and to different sectors (e.g. prison/police, education)
- the handling of the NHS Louisa Jordan Hospital
Theme - Experiences with access
- to non-COVID-19 healthcare (e.g. to cancer care and the impact of the decision to pause screening)
- to A&E
- to dentists
- the subsequent impact on other services due to lack of access (e.g. on NHS 24)
Theme - Role of primary care
- inconsistent access to care
- people not pursuing care due to a perception of it not being available
- adaptation to General Practitioner (GP) telephone or video consultation
- role of GPs within care homes
- effectiveness of prescribed changes
Theme - Patient flow 
- ambulance turnaround times
Theme - Cleanliness and infection control
Theme - Communication
- lack of personal communication to bereaved
- communication barriers (e.g. use of Gaelic)
- response of NHS Scotland to any concerns raised
- communications to different groups on issues such as vaccination and shielding
Theme - Personal impact on healthcare workforce
- psychological impact
- abuse at work
- support for healthcare staff
- recognition of the impact on groups who are more likely to be in healthcare worker roles
Theme - Mortality
- mortality rates as a result of COVID-19 at work
Theme - Risk and safety
- PPE (procurement, provision and suitability) and a review of communication in the early stages of the pandemic around PPE
- staff testing
- guidance on aerosol generating medical procedures
- risk assessments for clinicians in closed environments
- equipment and training for patients with COVID-19
- breaches of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR)
Theme - Leadership and regulatory bodies
- accountability for workplace safety for health care staff in all settings
- flexibility of decision making and local autonomy
- limited opportunities for Board public health teams to contribute to national development and decision making
- the role and capacity of the Health & Safety Executive and other regulatory bodies: such as a review the lack of regulatory scrutiny across different sectors at critical points with a consideration of the implications of this absence on safeguarding, supporting staff and handling complaints
Theme - Preparedness/capacity
- resilience and capacity of services
- clinical leadership (contingency and training)
- lack of well-being support
- pre-pandemic workforce shortages in NHS
Theme - Legal
- clarity of indemnity arrangements for clinical negligence
- need for a lawful criminal investigation into any deaths
Examples of success:
Theme - NHS adaptation and responsiveness
- improvement in multi-agency working
- speed of response in bed and ICU capacity
- staff ability and flexibility to move to support clinical teams
- restructuring and the opportunity to create flexible / adaptable teams
- redeployment of psychology workforce across Scotland to support healthcare staff wellbeing (although it was raised that it is not meeting demand)
Theme - NHS staffing and bureaucratic changes
- lifting barriers for recruitment (temporary change)
- upscaling services e.g. rapid scale of ‘Near Me’ consultations (digital medical consultation services)
- GDPR relaxation to allow data sharing between care providers
Theme - Vaccination programme
- general rollout and expedited vaccinations for social care staff
As described in the above table, there are a vast range of topics that respondents wish the Inquiry to investigate. In summary, these relate to the decision making, actions and behaviours taken in preparation for and during the pandemic; and the subsequent impact on processes such as care pathways, access to healthcare, recruitment/redeployment of staff and the procurement and provision of equipment. They also relate to the significant and interrelated issues of wellbeing, risk and safety.
“The Inquiry should cover the provision of support to people on waiting lists with deteriorating health due to lack of availability of healthcare and reasons behind lack of capacity in the NHS to meet demand from both C-19 and non C-19 issues.” (Individual, email submission)
As noted above, the psychological impact of the pandemic on the healthcare workforce is an issue of concern. As such, the Inquiry could consider pressures on healthcare workers to be able to collate and give evidence.
“Be cognisant from outset about ongoing pressures on systems, workforce and finances.” (Public sector, email submission)
This aligns with the views reported in the human rights section, stating that participants should be provided with emotional and practical support (which will fall under the Chair’s supervision).
Social care and support
The pandemic has had a major impact on individuals who require social care. Respondents suggested that there is a need for the Inquiry to focus on instances where social care packages were reduced and withdrawn and if the rights of those accessing social care support were upheld.
There are four main settings for social care support: personal and nursing care, care homes, unpaid care and ordinary residences.
The Scottish Government has said that the public Inquiry will investigate events causing public concern including the experience of COVID-19 in care homes. As such, care home relatives have expressed they would like ‘core participant’ status.
The following section details key issues that both individuals and organisations have expressed that the Inquiry could consider in relation to establishing facts and determining explanations for the decisions and actions within care homes. It is acknowledged care homes are just one form of support, amongst others, and further issues relevant to social care and support are noted in the ‘four harms’ section.
This section of the report is broken down into six areas of concern:
- the discharge of patients into the community, including care homes
- visiting restrictions
- infection control
- Do Not Attempt Resuscitation (DNAR) orders
The discharge of patients into the community and care homes
A priority for many respondents was for the Inquiry to investigate the rationale for the decision to discharge untested patients from hospital into the community, and specifically into care homes. This could include an examination of the evidence base on which this decision was made, the impact of this decision and if there could have been a more effective decision. It could also include whether general health and safety protocols surrounding discharge were followed and the response of the Scottish Government and care home owners as the harm from this decision became evident. Respondents questioned why the Scottish Government did not do more to learn from the way countries such as Italy and Spain handled their care home polices.
“Keeping us out didn't stop Covid getting in, but it did stop our loved ones feeling loved.” (Individual, email submission)
“Need to balance harm of family separation on deathbed against infection control.” (Public Sector, email submission)
Respondents raised views surrounding restrictions in care home visitation, including outright bans, limited (supervised) appointment slots, the exclusion of care home residents from ‘bubbles’, care homes not facilitating video/phone contact, and the inappropriateness of these communication methods for some residents (particularly those with dementia).
Respondents are seeking scrutiny of the policy decisions that they feel did not respect carers (e.g. family members) rights, that were inconsistent and/or had a detrimental impact on residents’ (and families’) physical and mental health. This includes the removal of rights of Power of Attorney and Guardianship. Specifically, respondents wanted the Inquiry to explore the rationale and legal basis for the length of care home lockdowns and ongoing visitation restrictions, at the point where most other areas of social life had reopened. It was raised that care home residents and families were discriminated against as they were not included in ‘extended households’ guidance.
Respondents are seeking clarity on the safeguarding protocols that were in place in the absence of family visitation. This has caused particular concern, with some suggesting that care home residents were ‘deprived of human rights’ (individual, email submission). In particular, failures in recognising the stress and harm caused by isolation from friends and family and the impact on those at the end of life. Indeed, concerns about visiting restrictions has led to a consultation on ‘Anne’s Law’.
Related to this but also applicable to other topics, is a request to examine inconsistency around what was deemed to be advice and guidance and that was legally binding.
Infection prevention and control
Respondents want the Inquiry to look at:
- testing capacity (as related to the first point on discharging patients into care homes)
- Scottish Government’s knowledge of asymptomatic transmission
- the timing of testing for care home visitors
- decision making around the procurement and provision of PPE (e.g. the consequences arising from PPE shortages and general preparedness)
- nosocomial infections
Spanning all of this, is the view that the Inquiry could examine mixed messaging around infection control requirements.
Do Not Attempt Resuscitation (DNAR) Orders
“The use of do not resuscitate forms during the pandemic appears to have been overzealous.” (Individual, Dialogue Challenge)
Respondents want the scope of the Inquiry to include the ‘breach of human rights’ in relation to the use of inappropriate and/or blanket DNAR  orders, including:
- the number of orders applied in 2020 and 2021 and how this compares to previous years
- use of DNARs without informed consent
- family pressures to sign DNARs
- if there was a criterion for people to be called or approached, such as age, disability and underlying medical condition
Data and evidence
“Essential evidence for the Inquiry will include care home records for deceased individuals, staffing ratios pre and during outbreaks and Care Inspectorate reports for each care home.” (Private sector, email submission)
As exemplified in the above quote, within the context of the care home setting, some respondents detailed what specific evidence they believe the Inquiry should obtain. This includes data held as records and in reports in order to examine the response by the Scottish Government to critical issues. Some respondents raised that they felt there had been a lack of support from the Care Inspectorate. Therefore, the investigation could also include the role of the Care Inspectorate and their accountability in terms of inspections, effectiveness and oversight in care homes.
This could also include more ‘informal’ evidence. In an online session with care home relatives, it was raised that there is a lot of information contained in their Facebook group that could be considered alongside personal testimonies.
Respondents also suggested that this could include examining transparency around whether scientific advice was followed in decision making and how risk was calculated and assessed. Alongside the examination of evidence in the form of documents and reports, respondents emphasised that the experiences of care home residents (or their representatives), relatives (bereaved families and those with families still in care homes) and staff should be included.
“Place people at the heart of the Inquiry ensuring all affected can tell their stories.” (Private sector, representing care home relatives, email submission)
Returning again to the point made earlier, sensitivity over timing is important, as raised: ‘It’s important not to view this as a thing of the past, it’s still a lived experience’ (individual, online stakeholder session).
Workforce issues included:
- guidance and practices for care home employees (including testing)
- skills and knowledge of employees to deal with the pandemic (and how this has been compounded by a lack of support)
- staff wellbeing
- staffing issues
- the exposure to risk as compounded by the lack of PPE
“Care home staff were terrified to answer our questions they felt scared and upset, they weren’t being supported.” (Individual, online stakeholder session)
In general, and applicable to most of these issues, acquiring a timeline of decisions in relation to issues such as PPE and testing could be useful.
It was questioned if the death of care staff should be included in the Inquiry and a request that the Inquiry should not re-examine matters investigated under Operation Koper. If lessons learned from Operation Koper should be considered by the Inquiry, then a report could be obtained from Crown Office and Procurator Fiscal Service.
2.4 Pandemic preparedness
The next topic was pandemic preparedness. Some respondents would like the Inquiry to investigate how prepared the Scottish Government and health and social care services were for a pandemic. This could then provide learning on how Scotland can become more resilient to, and better prepared for, future shocks.
“Preparedness and reviewing early decisions ahead of the first lockdown can start now and should be the first priority.” (Public sector, email response)
In terms of previous planning, exploring preparedness across different settings will involve looking into matters (evidence, decisions, plans) before the pandemic began in March 2020, at specific pre-pandemic and resilience planning and previous modelling and planning for SARS infection. It was suggested that the Inquiry could examine emergency response plans, determine explanations for any deviations from those plans and consider the extent to which emergency legislation should have been pre-prepared.
The role of the Scottish Government resilience room, the role of local resilience partnerships and to what extent the ‘Preparing Scotland’ guidance was followed were raised as issues for the Inquiry to consider. This was in addition to ‘Exercise Cygnus’ and the role of the Scottish Government.
Respondents are also seeking clarity on the relationship between the capacity and capability of the Scottish Government and public authorities and the effectiveness of preparations. This includes the role of the different sectors, in preparation and planning. For example:
- the effectiveness of systems to gather and share information
- the impact of austerity on preparations
- the extent to which national decision-making for preparedness and response to the pandemic actively enabled different professions to work and operate
2.5 Key policy decisions
There was a wide and diverse range of submissions relating to key policy decisions. A common thread was the need for a human rights framework, looking at how decisions adhered to or breached human rights, how the Scottish Government and other public sector bodies considered equality in their decision making, and the impact of policy decisions on groups disproportionately affected by the pandemic.
There was a view that there should be a ‘whole systems approach’ to consider how decisions were made, who was making decisions, transparency and clarity around the evidence base that informed decisions, accountability, and learning. This included an exploration of leadership and decision-making involvement at the most senior levels, how guidance was developed during the pandemic, and the co-ordination and provision of expert advice to the Scottish Government to support evidence based decisions.
This section of the report is broken down into the following sections:
- stages of the pandemic
- testing and vaccines
- travel and borders
- funding/financial support
- refugees/new scots
- housing and homelessness
- digital transformation
Stages of the pandemic
Respondents would like the Inquiry to focus on key policy decisions, actions and outcomes that were taken by both the Scottish Government and other public sector bodies in the early stages of the pandemic. This included:
- the timing and decision making around the first lockdown
- the speed of responses
- the effectiveness of information gathering and sharing
- the timing and implementation of measures
Respondents were keen for the Inquiry to focus on decisions around keyworkers, including the categorisation of keyworkers, provisions (such as access to childcare for keyworkers) and the impact of the encouragement of online retail.
Further issues raised included, delays around health and safety guidance/legislation, and the implementation of legislation, regulations and guidance across the private sector, considering the significant COVID-19 outbreaks in construction, manufacturing and call centres.
As raised in the section about care homes, other submissions highlighted the need for a timeline of key decisions made over the course of the pandemic. For instance, including whether they had equality impact assessments, and analysis of the rationale and evidence base underpinning decision making.
An investigation of changing and ongoing restrictions, the ‘Levels’ system, the timing of changes and whether this timing was appropriate, were also highlighted. This included the handling of restrictions across geographical boundaries, including issues that specifically involved island communities.
Decisions around closing places of worship, and policy around funerals including disparities between local authorities for bereavement services, were also raised as an area for investigation.
“The scope should include places of worship and request for spiritual harm to be included within the 4 harms.” (Public sector, email submission)
Respondents noted the need for clarity and transparency about policy decisions around business closures, including inconsistencies across and within sectors, and the rationale underpinning decisions about which businesses to support.
This included the retail sector and the classification of ‘essential’ and ‘non-essential’ retail, and experiences within retail and food management which remained open throughout the pandemic. There were also requests for a review of decision making around classifications of healthcare workers (with certain industries, such as complementary alternative massage, being omitted from this list).
Personal Protective Equipment (PPE)
“PPE decisions made early in the pandemic resulted in a disparity for social workers going into vulnerable individual’s home, which was not on par with health settings.” (Public Sector, email submission)
A significant number of respondents highlighted the PPE issues in care homes and there were further submissions around availability and supply of PPE across other settings.
Issues highlighted included, conflicting messages around PPE in the early stages of the pandemic, confusing guidance, and the fragility of supply chains and procurement systems/regulation in circumstances of significant demand, including the process of awarding government contracts. This included decisions that led to inequities in access to PPE early in the pandemic, including the lack of PPE for frontline and essential keyworkers such as social care staff and retail workers.
The role of the military in supporting PPE distribution hubs was highlighted as a positive in one submission from the public sector.
Testing and vaccines
“The policy development process, especially in terms of timing and the use of an evidence base/expert advice. In particular, the policies on testing strategy and hospital discharge. Was testing capacity used in the best way? Was guidance from the World Health Organisation followed?” (Local Government, email submission)
The key priorities for consideration of the approach to testing included:
- the establishment of a testing strategy
- how decisions were made about testing
- the decision to stop testing in the early phase of the pandemic
- the contact tracing approach for Test & Protect and whether this has been efficient.
Respondents highlighted the success of the vaccination strategy, with high uptake, and a rapid and effective rollout delivered by the NHS. However, there were also comments raised around pace of the rollout and prioritisation groups, including the lack of initial inclusion of people with learning disabilities in priority groups (despite being much more likely to die from COVID-19) and key workers.
Respondents also raised the efficacy of vaccines for immunosuppressed groups. They also raised a need for evaluation of the success of the programme in reaching vulnerable or marginalised groups, including those without a permanent address. Also, the steps that were taken to address vaccine hesitancy (particularly among marginalised groups, including migrant populations), whether these were sufficient and what actions could be taken to address the issue in the future. A number of respondents also highlighted safety concerns regarding vaccines, decision making around vaccinating young people, and the accuracy of PCR tests.
“The Inquiry must consider what impact decisions around shielding have had on people, how they continue to be impacted, and the long-term impacts on people” (Third sector, email submission).
Submissions around the shielding policy included the impact on key groups, including, disabled people, people with long term conditions, unpaid carers, Black and minority ethnic people, and older people. Concerns for the Inquiry to examine included the consequences of the shielding policy, including social isolation, inadequate access to food, and the lack of detection of health issues.
Further issues included, the process around who was identified as requiring shielding and who was not, the evidence base underpinning decisions to end shielding, measures taken by employers to ensure shielded workers were not exposed to risk on their return to work, and the advice given to those identified as Clinically Extremely Vulnerable.
Travel and borders
“Why did they allow our borders to be open? Australia and New Zealand closed their borders which was instrumental in saving many lives.” (Third sector campaign group, email submission)
Some respondents would like the Inquiry to investigate policy decision making around travel and borders. This included:
- air travel policies
- plans and authority to close arrival routes into the country to limit importation of disease and illness
- plans to limit local travel within Scotland and between its regions
- plans to limit travel from other UK nations into and out of Scotland
It was suggested that the Inquiry may need to review what powers the Scottish Government held to act on borders at the height of the pandemic, noting free travel between UK and the Republic of Ireland via the Cairnryan/Belfast ferry throughout the pandemic.
“No one should die from their work.” (Individual submission, Dialogue Challenge)
“Who was regulating the guidance that was issued?... there were many examples from members in workplaces where guidance was not being followed, sometimes with a real aversion to adopting or following any guidance to keep people safe.” (Private sector, email submission)
The timeframes given to businesses to adapt to changes in COVID-19 restrictions was highlighted. Other submissions raised the use of fire and hire practices across many sectors, the use of furlough and the decision by some employers not to use this scheme (including whether the Scottish Government could have done more to protect workers). Also, flexible and working from home policies, and guidance issued on business continuity.
There were many other workplace issues raised for the Inquiry to investigate and they have been summarised below into legislative, guidance, regulation, risk assessments, furlough, information and funding issues.
- adherence to RIDDOR and breaches, including under-reporting of COVID-19 due to RIDDOR
- Fatal Accident Inquiries (FAIs) for work related COVID-19 deaths
- departure from emergency legislation from the Health and Safety at Work Act
- whether the Scottish Government met it’s ECHR Article 2 obligations to ensure that all relevant COVID-19-related deaths were reported to the Crown Office and properly investigated
- breaches of the Health Protection Scotland (COVID-19) Regulations by employers in receipt of publicly funded contracts
- guidance provided to employers/workplaces/trade unions about COVID-19 as an airborne virus
- working from home guidance, including the extent to which this was followed by employers, and whether the Scottish Government could have taken additional steps to encourage home working and support employees
- support given by employers for employee self-isolation
- guidance on working in other people’s homes and breaches of this
- the oversight/regulation of COVID-19 measures and health and safety standards
- the response from public health enforcement in workplace outbreaks and their relationship with Health and Safety enforcement bodies
- risk assessments for staff and oversight of these (including, for example, those in relation to pregnant workers)
- use of the furlough scheme and decision by some employers not to use the scheme
- accuracy of information held by public bodies on workplace COVID-19
- responses to Freedom of Information requests
Funding and financial support
“The pace and scale of action taken to try and protect business and individuals affected financially by the pandemic is to be commended but some groups found It harder to access financial support packages.” (Local Government, email submission)
Respondents raised a number of comments regarding funding. These covered a range of areas including business support funding, provision of third sector funding, and the impact of temporary funding on recruitment. This included whether the distribution of Scottish Government emergency COVID-19 funding was optimal, parity of funding across local authorities, and decision making around resource allocation.
The impact of the flow of funding streams was raised. Submissions highlighted the effectiveness and availability of business support funding. This included decisions by the Scottish Government on dispersal/allocation of financial grant support to small business holders, alongside the Local Authority Discretionary Grant Scheme. Issues raised included, problems with roll out of the scheme, disparity between local authority areas, and funding being awarded on a first come first served basis. The impact of classifying certain business sectors as ‘essential services’, which led to the denial of access to ongoing grant funding assistance, was also raised.
There was a request for the Inquiry to evaluate the allocation and delivery of the range of additional funding implemented to support individual families experiencing financial difficulty. This included the Scottish Welfare Fund, discretionary housing payments and self-isolation grants. The Inquiry could investigate whether additional funding reached those it was intended for, what the barriers were, and what lessons can be learned. There was a request for a review of statutory sick pay provision, and a review of the self-isolation guidelines. In particular, the impact on workers on low incomes and in low-skilled sectors, who it was highlighted were placed in precarious financial and livelihood decisions when self-isolation guidelines were followed. There was also a request to consider barriers to accessing state support, especially among non-British citizens, during the pandemic.
The Inquiry could also consider support for vulnerable people, including the co-ordination of access to food and supermarket deliveries. In particular, who was responsible for action within the Scottish Government and how this was coordinated across the UK.
Respondents want clarity on the decision making during the pandemic that led to removing refugees and asylum seekers from safe residential accommodation into hotel/institutional accommodation in Glasgow and an investigation of the human rights breaches that resulted from these processes. This was highlighted as leading to reduced financial support, reduced access to support services, healthcare, housing, access to nutritious food, and breaches of human rights. Key areas included requests for a review of the Asylum Accommodation and Support Contract (AASC) and its compliance with:
- public health guidelines
- Scottish public service provision standards
- relevant legislation with AASC contractual obligations
“Our exclusion from these general public safeguarding and care mechanisms were the result of a complex maze of devolved and reserved powers and duties that led to a lack of accountability and ultimately left us with nowhere to turn.” (Third sector campaign group, email submission)
Housing and homelessness
Submissions relating to homelessness included whether the changes to homelessness services (e.g. emergency hotels and Rapid Rehousing Welcome Centres) helped to protect people and the extent to which people rough sleeping were provided with accommodation quickly. Also, delays in the extension of the Unsuitable Accommodation Order, including the safety and wellbeing of individuals housed in emergency accommodation, and the timeliness in which people were supported to move on.
Whilst it was reported that some major successes were achieved in changes to homelessness policy, it was suggested that there could be further analysis of how those changes in policy and practice can become permanent. For example, support for those with No Recourse to Public Funds, support for tenants facing eviction, dramatic reductions in numbers of those rough sleeping, and no return to the use of Hostels/Night Shelters.
Key areas around housing policy were raised, such as the suggestion for the Terms of Reference to include the impact on tenancy support during the pandemic and the ability to deliver affordable housing requests.
The Scottish Government’s additional allocation of money including discretionary housing payments was praised but it was suggested that an evaluation of the allocation and delivery of funding (e.g. barriers in accessing this support and consistency of spending across Local Authorities) would be useful.
“Particular consideration should be given to whether key decisions- including those on extending periods on remand and limiting family visits- complied with human rights requirements.” (Public sector, Professional body representing Scottish solicitors, email submission)
Policy decisions around prisons were highlighted. Such as, the decision to limit family visits and the human rights implications of this decision making, and the adverse health and societal impacts of COVID-19 on the prison population.
“Different government services took different decisions… whilst Children’s Hearings quickly moved to using Zoom, Mental Health Tribunals used phone conferences which made it very difficult for individuals to know who was on the call and to take part in major decisions that affect their life.” (Third Sector, email submission)
The acceleration of digital transformation was highlighted by some as a positive, including promoting greener ways of working. However, respondents also raised issues around digital exclusion exacerbating inequalities, and the different ways that the move to digital or phone communications affected people’s human rights. This included breaches in the rights to education for children and young people who missed out due to digital exclusion, the impact of digital only services on those not online, the rights to participation, and how competing needs of different groups were handled. For instance, the exclusion of people who were unable to access digital equipment due to low income, lack of internet access or lack of digital skills, but arguably improved inclusion for other groups.
2.6 Four harms
In May 2020, The Scottish Government published an overview of key analysis and evidence and set out their ‘four harms’ approach to understanding the impact of the pandemic.  In summary, it considers that COVID-19 causes harm in at least four ways.
First, the virus causes direct harm to people's health as seen through the number of new cases, number of new hospitalisations, number of people requiring treatment in Intensive Care Units and, sadly, the number of deaths related to the virus. Second, the virus has a wider impact on health and social care services in Scotland and this has impacted on non-COVID-19 health harms. For example, this has meant other types of care and treatment have been postponed. Third, the restrictions put in place to slow the spread of the virus (for example, ‘lockdown’) can harm the broader way of living and society. Including, for example, the negative effects of increased isolation and the impact on children's well-being from closing schools. Fourth, the lockdown has had an impact on the economy, causing uncertainty and hardship for many businesses, individuals and households. It is recognised that these harms are related - health harms impact on society and the economy and the societal and economic effects impact on physical and mental health and wellbeing.
As detailed below the Scottish Government’s ‘four harms’ approach was used to categorise the issues raised in the engagement process. These are issues that respondents would like the Inquiry to investigate. However, it is worth bearing in mind, that this format does not adequately capture how these factors interact. Also, as these are summary statements, they do not necessarily reflect the detail of experiences and challenges for different groups. Different individuals and organisations are seeking clarity specifically in relation to the groups of people they represent or based on their own experiences. For example, children and young people, people with sensory loss, those with chronic conditions, key workers, business owners, ethnic minority groups, and many others. For a summary, see Table 3 below:
Table 3: Scottish Government’s four harms approach
Harm - Health
- direct health impacts of COVID-19, including cases and deaths
- examination of whether the emphasis on the ‘health harm’ was equally balanced by a consideration of the other three harms
- long COVID (e.g. is there a strategy, approaches to and treatment of long COVID, data issues around identifying long COVID in medical records and the intersection of people with long COVID and other pre-existing inequalities)
Harm - Indirect health
- number of non-COVID-19 deaths, could they have been mitigated and links to policies such as lockdown
- access to healthcare – e.g. problem accessing GPs, dentistry, indirect harm from missing appointments, palliative care, cancer screening and treatment
Harm - Social
- decisions relating to school building closures/reopening, the school environment (e.g. ventilation), cancellation of national examinations
- policies within schools (e.g. face coverings)
- impact of the pandemic on the welfare of teachers
- the response by the Scottish Government and other agencies in supporting college and university students to complete their studies
- review of support for vulnerable people and self-isolation support scheme
- the capacity and effectiveness of informal mental health support
- societal impact of lockdown, for example, loneliness and isolation
- hate crime and harassment
- infections and mortality due to structural and institutional racism amongst ethnic minority groups
- impact of the pandemic on poverty and inequality and the actions taken in response
- closure of organisations and rationale (e.g. community services, places of worship)
- food shortages
Harm - Economy
- economic recovery
- unemployment (particularly among younger people)
- how business funding has been deployed - how businesses were able to access grants/funding packages
- how decisions were made about which businesses to support and the various impacts on society and communities
- businesses' ability to operate, business support funding and the divergence between Scotland and rest of UK
- longer term impacts of flexible and home working
- the impact of the pandemic on the self-employed
In addition to the Scottish Government’s ‘four harms’ approach, respondents wanted the Inquiry to consider the harms toward democratic governance over the course of the pandemic. This may include assessing the proportionality of restrictions to civil liberties; the impact of democratic forums moving online (for example, parliamentary and council proceedings); and whether there has been effective oversight across public institutions.
Under the umbrella term of ‘communications’, this section covers respondents concerns in relation to the clarity and timing of COVID-19 messaging. Specifically, public health messaging around COVID-19 issued by public bodies and also how these messages were relayed in the media. Respondents also want the Inquiry to review governmental communications management (strategies, methods and impact) to learn what worked and how communications could be improved for future crises – especially around public health.
“How was information communicated to people and how did this affect health and wellbeing, what steps were taken to make information accessible and inclusive”. (Public sector, email submission)
Communication from public bodies to the public
Respondents expressed that the Inquiry could review the effectiveness, reach and timeliness of communications from local and national government around COVID-19. Particular attention was given to the lack of clarity in government messaging around both the risks of the virus itself and surrounding the rules and restrictions in place. Some submissions criticised government communications for being unclear, confusing, contradictory and inconsistent. This was more apparent where there was regional variation in COVID-19 measures. Another issue raised was public confusion surrounding the difference between guidance which is advisory and measures in law which are legally binding.
In terms of the nature and impact of government communications to the public, respondents wished the Inquiry to consider the balance between informing the public of risks and inspiring fear. The Inquiry may consider how information and data is presented to the public. Such as, how statistics around COVID-19 infections and deaths are contextualised.
Respondents gave focus to the format and delivery of the televised daily briefings with direct updates from the First Minister and Chief Medical and Scientific Officers. The Inquiry may consider how and who should deliver such briefings during national crises to ensure that critical information updates are objective, accessible, and most impactful.
Responses from different advocacy groups highlighted the need for specific communications strategies for different, often more marginalised, groups. Such as:
- children and young people
- residents of migrant backgrounds
- pregnant women
- the elderly
- people with learning disabilities
- people with autism and sensory issues
This is because the absence of targeted communications caused added stress to certain groups. Further, general messaging, e.g. “stay at home and protect the NHS”, may have had unwanted negative implications in deterring some individuals from seeking critical healthcare. The Inquiry could review how effective pandemic communications are in reaching different groups and look at the use of targeted communications.
“Vulnerable people were left feeling confused and tense.” (Third sector, email submission)
Communication from public bodies to key sectors
Respondents from across business, health and social care sectors called for the Inquiry to review the Scottish Government’s overall communications management. This could entail looking at the clarity, substance, format and frequency of government outward communications; the degree of information sharing; and how well or whether the Scottish Government sought and responded to feedback from its partners. Particular focus could go toward government communication to key stakeholders around changes to guidance.
Respondents from across the care sector (public, private, third) called for the Inquiry to consider how the Scottish Government communications could be improved. Responses stated that the Scottish Government’s communications to care providers were sometimes poor, inconsistent and last minute. And that there was a lack of meaningful consultation with the care sector throughout (also raised by an NHS health board). Respondents from the care sector wanted the Inquiry to ascertain how transparent the Scottish Government was with key sectors and partners, to identify any time delays in sharing critical data and information, and understand if/why certain information was withheld.
Healthcare professionals praised communications from the Scottish Government but felt there could have been better two-way communications. These respondents suggested the Inquiry review the Scottish Government’s handling of feedback from partners.
The Inquiry may also want to review communications between local and national government. In particular, local authorities would welcome a review of intergovernmental communications protocols and response timeframes. The Inquiry could also review the consistency of communications across public sector bodies. For example, one NHS board shared that the ‘messaging from advisory bodies was often confused or even conflicting’ (email submission). Other views were that the Inquiry could look at communications infrastructure. Specifically, the utility in creating a singular authorised contact that can give advice on public service delivery during times of crisis.
Some respondents suggested that while retaining its focus on the devolved administration and areas within its jurisdiction, the Inquiry could also review strengths and limitations of the four nations approach in Scotland, particularly around communications and also fiscal provisions.
Respondents proposed that the Inquiry consider the media’s role and impact on public health messaging. Firstly, to what extent did the media help to promote public health messaging and second, how/where did media confuse, dilute or even oppose public health messaging.
Respondents were keen for the Inquiry to investigate the role and impact of the media (traditional and social media) in fearmongering and/or spreading misinformation around the pandemic. And how the media could or should be more regulated surrounding communications and broadcasts that pertain to public health.
Another issue raised was the role of media discourse in furthering ‘Sinophobia’ (anti-Chinese sentiment) at the onset of the pandemic and for the Inquiry to examine what action, if any, government took to combat this
Finally, there were various mentions for the Inquiry to investigate the balance between encouraging political deliberation and upholding a singular message on public health. For example, broadcasting decisions to interrupt COVID-19 daily briefings with parliamentary debates on COVID-19 measures. Another concern raised, regarded the politicisation of scientists and experts, and the role of the media within this.
“I was also concerned by only hearing one viewpoint not only in government information sharing but across the wider media and scare tactics being used to enforce compliance.” (Individual, email submission)
2.8 Legal frameworks
Respondents want the Inquiry to review how emergency legislation such as the UK Coronavirus and the two Scottish Coronavirus Acts were produced, published and implemented.  The Inquiry could look at how legislative changes were communicated to key stakeholders. The Inquiry could also review the ability to enforce the Coronavirus Acts, particularly concerning the different tiers of restrictions (by area), and differences between law and guidance.
The Inquiry could review the robustness of existing legislation and their application during the pandemic. For example, the Public Health Scotland Act 2008 and the Health and Safety at Work Act 1974. It was questioned if these legal frameworks, incorporating regulation and their enforcement, were followed and if they are fit for purpose. For instance, with hospital discharge protocols and measures to limit nosocomial infections.
2.9 Views on recommendations
The final section of this report considers attitudes on whether the Inquiry should be required to make recommendations. As such, there was a clear view from the respondents that recommendations are essential.
Recommendations could capture the importance of learning, improving and accountability. Learning can involve good practice lessons but also mistakes, responsibility and accountability for where mistakes have been made, and learning for the future. There was consistent wariness towards a ‘lessons learned’ emphasis without meaningful actions that can be implemented. Therefore, it was suggested that there should be a clear strategy with the recommendations. For example, in terms of responsibilities a “you said, we did” (stakeholder session, online) approach could be adopted, where recommendations go back to communities and an emphasis is made on engaging with stakeholders throughout.
Some respondents emphasised the need for measurable and legally binding recommendations to ensure that recommendations are implemented, with clarity sought on whether provision will be made for any post Inquiry follow-up (to identify whether recommendations had been implemented). As noted, it is for the Chair to decide how the Inquiry operates and some things may not be possible under the 2005 Act.
Respondents identified the need for a mechanism in place to ensure that recommendations are monitored and acted upon, with suggestions of monitoring and implementation plans, commitments to resource their implementation, the potential value of an ‘implementation monitor’, and of a body that reports and has parliamentary oversight, to ensure that recommendations are taken forward.
Some respondents requested a pre-existing commitment from the Scottish Government to accept and act on any recommendations, and clarity was sought on which bodies/agencies the Inquiry can make recommendations to. It was noted that recommendations should be held accountable to all levels, from Scottish Government to Local Authorities.
“The recommendations need to clearly communicate what improvements it believes should be made to mitigate the long-lasting effects of the pandemic and what can be learned in case we are ever in a similar situation again.” (Third Sector, email submission)
Respondents suggested timelines for the recommendations and clarity on how implementation of the recommendations will be undertaken and by whom. The urgency of some recommendations was noted because the pandemic is still ongoing (which may lead to urgent recommendations). Also, around future pandemic planning, as it is unknown when the next emergency will occur.
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