The organisation representing Scotland’s independent care sector has written to the Lord Advocate calling for a halt to the Crown Office-led inquiry into covid care home deaths saying the process is affecting hundreds of care home staff who have spent nearly two years not knowing if they will be prosecuted – while doing nothing to reassure the public.

At the end of February this year, 3,941 reports of care home deaths, 37 of whom were care home staff, were under investigation by the Crown Office’s Covid Deaths Investigation Team as part of what was named Operation Koper.

The Crown Office says, while a small number of cases have been closed, the majority are still open as investigations are ongoing.

The Chief Executive of Scottish Care, Donald Macaskill, has written to the Lord Advocate Dorothy Bain QC asking for the investigations to be concluded on the grounds of natural justice for staff who have been under investigation, without any conclusion, for up to 22 months.

Dr Macaskill’s letter also asserts that, given the changed nature of the pandemic, there is no longer a justification for continuing to investigate every covid-related care home death.

Each time someone dies in a care home from covid, or suspected covid infection, there is a legal requirement for staff and managers to fill in a lengthy formal fact-finding document which may be followed up by police interviews.

Instead, Dr Macaskill asks the Lord Advocate in his letter to revert to the previous guidance for notifying the Procurator Fiscal of deaths in certain specific circumstances.

“These two requests are based on an assessment that this is having a massively detrimental impact on the safe quality delivery of care,” he told healthandcare.scot. “And the reason for that is that the emotional and psychological impact on care staff, nursing staff in particular, and nurse managers, is wholly disproportionate to what we would consider to be a public interest.”

At the start of the pandemic the then Lord Advocate James Wolffe QC issued a direction that covid-19, or presumed covid-19, deaths did not require to be reported unless there was another substantive reason for doing so, saying this was “consistent with the approach which had been taken in Scotland previously in relation to other significant outbreaks of infectious disease”.

That guidance changed in May 2020 in response to “public anxiety”. From then on, all cases where the deceased might have contracted the virus in the course of their employment and all deaths among care home residents had to be reported.

Scottish Care says that it has no issue with the professionalism of the police officers and Crown Office staff involved in the investigations. On Monday this week Donald Macaskill tweeted thanking senior representatives on the inquiry team for answering questions at an emotional online meeting with care home staff.

He told us:

“Staff were in tears about the fact that decades of professional judgement and excellence was being brought into question by this process.

“James Wolffe's argument was that deaths in care homes needed to be investigated in order to a reassure the public and out of public interest. The fact that in two years there has been no conclusion to those investigations has not reassured the public but actually, we would argue, has increased concern and has destabilised the ability of the sector to deliver safe care.”

The Crown Office and Procurator Fiscal Service (COPFS) says the multi-agency information gathering process is still ongoing with information being collated and provided to the Covid Deaths Investigation Team. The COPFS says the circumstances of each death will then be fully considered by the team, and appropriate decisions made about whether further action is required – with the families of those deceased being kept updated on developments.

A COPFS spokesperson added:

“The Crown Office and Procurator Fiscal Service has established a dedicated team to investigate covid or presumed-covid deaths where they fall to be reported.

“The Covid Deaths Investigation Team (CDIT) will work with the relevant agencies to ensure that all necessary and appropriate enquiries are made.”

Deaths from covid contracted in hospital settings were never included in the scope of the investigation. Despite that, last summer we reported that 800 covid-19 deaths across 50 Scottish hospitals were being probed at that time after reports from medical staff.

Donald Macaskill says the absence of an ‘equivalent intensive investigation’ of hospital deaths has added to the impact on those working in the care sector:

“I know that are some limited investigations into hospital deaths. But there is no sense of the same victimisation, impugned of the professional integrity of nursing and clinical staff in the hospital.

“I would be the first to say that if there is evidence in any instance of criminal behaviour, then appropriate action needs to be taken, and it should have been taken before now.

“But the holding of a whole sector under the shadow of culpability is wholly disproportionate and unreasonable and is causing real damage to the ability of the care sector to deliver care.”

 

Read more: Government review admits care home ‘search for blame’; Lack of home care deaths investigations ‘unjust’; Double standards claim over NHS & care home deaths; Prosecutors probe hundreds of covid hospital deaths

 

Sign up to our bulletin for key health & social care updates straight to your inbox.