Patient Discharges to Care Homes

– in the Scottish Parliament at on 28 April 2022.

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Photo of Anas Sarwar Anas Sarwar Labour

2. Today is workers memorial day. We pause to remember all those who have lost their lives simply doing their jobs and resolve to campaign for workplaces free from harm.

Yesterday, a judge at the High Court in England ruled that the policy of discharging positive and untested Covid patients into care homes was “unlawful”, unreasonable and “irrational”. It was described as

“one of the most ... devastating policy failures in the modern era” that cost lives. Does the First Minister accept that her decision to send untested and positive patients into care homes in Scotland was unlawful, unreasonable and irrational and that it cost lives?

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

No, I do not accept that. However, those matters will now, rightly and properly, be scrutinised by the public inquiry that is under way in Scotland and, of course, the parallel public inquiry that will take place into those matters UK-wide. Those matters will, rightly and properly, be scrutinised should any legal cases be brought in Scotland.

The most important thing I want to say is that my thoughts are with every single family who has lost a loved one during the pandemic, either in a care home or, indeed, across wider society. We are obviously aware of the ruling at the High Court yesterday regarding decisions made for England by the UK secretary of state.

During the pandemic, the priority for all of us has been to save lives at all points, and we have sought to make the best decisions on the basis of the best scientific and clinical evidence we have at any given time. All nations developed guidance on the basis of what we understood at the time. The guidance in Scotland was broadly similar to the guidance that was in place in England, but it was not identical; there were some differences in versions of the guidance. Our guidance from 13 March 2020 and 26 March 2020 emphasised that care home residents should remain in their rooms as far as possible and that routine visiting should be suspended. From 26 March, we also required the isolation of anyone discharged to a care home who had been in contact with Covid cases, even if they were not displaying symptoms. It is right and proper that these matters are fully scrutinised by the public inquiry.

The last thing I will say—and I have said it before—is that there is nothing anybody in this chamber can say to me that will make me feel the weight of those decisions any heavier than I already do, and I will do so for the rest of my life. I took all of those decisions, as did my ministers and the Government, in good faith and on the basis of the best information we had at the time.

Photo of Anas Sarwar Anas Sarwar Labour

I am sorry—that last part might be fine in words, but it is extraordinary and unthinkable for the First Minister to say that she does not accept the judgment, particularly when an almost identical thing happened in Scotland. Let us look at what the judgment makes clear: it says that what happened was “ irrational”, “unlawful” and unreasonable, given what Governments knew.

Let us look at what happened in Scotland. As early as 4 February 2020, this Government’s advisers suggested that asymptomatic transmission was a possibility. On 13 February 2020, this Government’s advisers said that asymptomatic transmission was likely. On 13 March 2020, despite warnings from care home staff, this Government’s guidance said discharge from hospitals should not be hindered.

On 26 March 2020, this Government’s guidance said:

“Individuals being discharged from hospital do not routinely need confirmation of a negative Covid test.”

As late as 17 April 2020, this Government’s health secretary was saying that there was still not a strong case for testing patients before discharge, even though testing guidelines had changed in England on 15 April 2020.

By the time the Scottish Government changed its guidance and guidelines on 21 April, nearly 3,000 untested people and 75 known positive cases had already been transferred into Scotland’s care homes. Does the First Minister accept—in the words of the families who are affected and impacted—that this was a shameful, unforgivable, criminal act that cost lives in Scotland?

The First Minister:

My thoughts will be with the bereaved families every single day for the rest of my life.

This is not about not accepting a judgment. The Scottish Government will look very carefully at the terms of yesterday’s judgment—we have already started that process—but this was not a case about the situation in Scotland. Therefore, it is only a statement of fact and not a judgment about the situation in Scotland. It is not about us not accepting the judgment; it is about recognising that very important fact.

As I have said, and as anybody can see, the guidance in Scotland was broadly similar to that in England—and, indeed, in Wales, which has a Labour Government, so this is nothing to do with politics. However, there were some differences. For example, at a time when there were mixed views—to put it mildly—about the risk of asymptomatic transmission, our guidance from as early as 13 March 2020 recommended that residents remain in their rooms. From 26 March, the guidance recommended 14-day isolation of anyone discharged to a care home even if they did not have symptoms. The risk of asymptomatic transmission was clearly in mind, to some extent, at that point.

These are matters that will be fully scrutinised by the public inquiry under the convenership of Lady Poole, a High Court judge in Scotland. If other processes are brought in in Scotland, scrutiny will be brought to bear on those, too.

Analysis of discharges to care homes has been undertaken by Public Health Scotland, and the finding was that there was no clear statistical evidence that hospital discharges were associated with care home outbreaks. Instead, it was care home size that was more strongly related to outbreaks. That is the analysis that has been done so far, but it is right that we have full analysis and scrutiny by the independent public inquiry, whose work is now getting under way.

Photo of Anas Sarwar Anas Sarwar Labour

I remind the First Minister that families will be hearing the sympathy that she has expressed, but they will hear the ducking and diving that she has expressed, too.

Photo of Anas Sarwar Anas Sarwar Labour

I am sorry, but Mr Swinney is right—it is a disgrace that people lost loved ones in care homes.

I have already narrated the timeline for what happened in Scotland. Let us look at the consequences of the shameful decision. In the first wave of the pandemic, 4,073 people died with Covid in Scotland, 1,900 of whom were in care homes. That is almost 50 per cent. By the time that the Government acted, half of all care homes in Scotland had a Covid outbreak.

Families have been through the heartbreak of losing a loved one, and many of them could not be there at the final moments, yet it seems that the First Minister is suggesting that those families should perhaps go through the Scottish court system to get to the truth. Do not force those families to relive their heartache all over again by being dragged through the courts, with the emotional toll that comes with that, and having to spend thousands of pounds to get the First Minister to admit the truth. Does she accept that her Government’s decisions and actions were unlawful, unreasonable and irrational and that they cost lives?

The First Minister:

On an issue as serious as this, Anas Sarwar is shamefully misrepresenting my words. I did not suggest that people should have to go to court. What I recognised was that people have a right, if they so choose, to go to court, and that they might choose to do that. It was not a suggestion that they should.

I believe that people should get the answers to the questions that they have around all aspects of the handling of the pandemic without having to do that, which is why this Government has set up an independent public inquiry that is chaired by a High Court judge.

The First Minister:

I refer Jackie Baillie to the Inquiries Act 2005. The conduct of the public inquiry, the rhythm of reporting and the time taken for it to report are entirely matters for the independence of the inquiry and not for ministers.

Jackie Baillie should stop indulging in political commentary from a sedentary position and engage with the importance of the issues.

I do not have to be reminded of the numbers and consequences of the pandemic. The facts and figures and the human consequences are embedded in my soul and always will be. That does not mean that my decisions and actions and those of my Government should not be subject to scrutiny; they should be subject to full, independent scrutiny, which is exactly what the independent public inquiry will do. That is what families deserve, and they deserve a process that takes place in a proper way. I am determined that they will get that.

The Presiding Officer:

We move to supplementary questions.