What does Module 6 of the Covid-19 Inquiry mean for the Care Sector?

A summary of the key takeaways from a recent webinar on The Covid-19 Public Inquiry - Spotlight on the Care Sector.

What is a Public Inquiry?

A public inquiry is a state sponsored investigation into areas of public concern.

Inquiries are set up and sponsored by the government, but they operate independently of the government.

All inquiries have powers to compel the attendance of witnesses or provision of evidence.

Every inquiry’s purpose it to generate a report and investigate the matter at hand, however no inquiries can make findings of criminal or civil liability. However, the findings of an inquiry can form the foundation of criminal proceedings and civil claims.

How is the Covid-19 Inquiry operating?

The Inquiry was announced in May 2021, and it is chaired by Baroness Heather Hallett.

The Inquiry is structured in modules and six modules have been announced thus far. Module 6 is going to relate to the care sector and will open on 12 December 2023.

The window of opportunity to apply for Core Participant status will be from 12 December 2023 to 19 January 2024. The inquiry will then start to make calls for evidence. Public hearings aren’t expected to start until Spring 2025.

What role is the Care Sector going to play?

The Inquiry hasn’t yet published a scope for Module 6, however we can expect to receive it upon opening of the Module. Despite the lack of scope at present, we are able to work out what is likely to be covered.

The purpose of the Covid-19 Inquiry is to:

1. Examine the UK’s response to the pandemic and produce a narrative of findings; and
2. Identify lessons to be learnt.

Based on this, we are expecting Module 6 to produce a narrative around the care sector’s response to the pandemic. We anticipate that recommendations/lessons to be learnt will be directed at the government but also the private sector. The Inquiry could make recommendations for:

1. Changes to legislation;
2. Changes to policy and guidance; and
3. Measures to be put in place to better respond to any future pandemic or national emergency.

At the outset, the inquiry published Terms of Reference, which included areas for consideration as follows:

• The management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, workforce testing and changes to inspections.
• Care in the home, including by unpaid carers.
• The impact on health and care sector workers and other key workers.

We therefore expect Module 6 to examine care homes, care in the home and the impact of the pandemic on care sector workers. If your organisation was involved in this, it may become involved in the inquiry.

What risks come with taking part in the Inquiry?

1. Reputational - Evidence is given in public and is subject to media and public scrutiny. Evidence is scrutinised by the Inquiry during the hearings and in the report. Some aspects of the findings may be critical, and the report will be made public.
2. Litigation - Findings of failures may form the basis of future criminal investigations (such as for breach of Health and Safety legislation) or civil litigation (damages for death/personal injury).

What benefits come with taking part in the Inquiry?

1. Reputational enhancement - The Inquiry provides the opportunity to tell the world how well the care sector responded.
2. Input into lessons to be learned – Ability to influence the outcome of the inquiry.

How can an organisation become involved in the Inquiry?

1. As a Core Participant - You then have the benefit of receiving evidence from other Core Participants in advance, can be represented at hearings, can make representations to the Inquiry on how it should proceed, and influence questions for witnesses. You can also make submissions on content of the final report. If your organisation has played a major part, our advice would be to consider CP status as this is the only way to have an influence over proceedings.
2. As a witness - Who provides evidence or documents only to the Inquiry. This route is less costly however there is less opportunity to influence the outcome.
3. To sit behind an industry body or an umbrella organisation – This has the advantage of being able to share cost and resource, and co-ordinate evidence and submissions. 

What should you check with your Insurer?

1. Do you have Covid-19 cover under public liability? Legal costs can be incurred should you be faced with a negligence claim from a service user. The average legal cost for a negligence claim is £6-7k. The cover should have an appropriate limit and perhaps a retroactive date to it to ensure you are covered for the pandemic period. 
2. Make sure the basis of public liability cover is appropriate with a high enough limit to cover any potential claims.
3. The cover should include investigation and legal costs should you be investigated by bodies such as the CQC, Charity Commission or the Inquiry themselves.

Now is the time to review your insurance policy. If we see noise coming out of the inquiry in due course, the cost for insurance cover will likely increase in price.

How can care organisations fund participation in the Inquiry?

1. Insurance cover, if triggered.
2. Funding from the Inquiry is possible – however it has a limited budget. The cover tends to be reserved for charitable or not for profit organisations.
3. Self-funding.
4. An industry body.

If you are interested as an organisation in taking part in the Inquiry, should you do anything now?

1. Decide whether you might be a Core Participant or an evidence provider.
2. Take steps to ringfence any evidence that may be required. Don’t destroy any documents that could be relevant

Legal advice can help you with this.

If you are considering whether to take part in your own right, now is also the time to contact your industry or umbrella organisation.