More than 95% of the nearly 5,000 COVID-19 deaths in Scottish care homes under investigation by Scotland's prosecution services remain unresolved, with new cases continuing to be reported to the Crown Office and Procurator Fiscal Service every month.

At the start of the pandemic, the then Lord Advocate James Wolffe QC issued a direction that deaths from COVID-19 didn't, in normal circumstances, need to be reported.

That changed a couple of months later when the Lord Advocate instructed in May 2020 that, in response to "public anxiety", all cases where the person who died may have contracted the virus in the course of their employment, and all deaths amongst care home residents, had to be reported.

The Crown Office and Procurator Fiscal Service (COPFS) set up a multi-agency information gathering process to present findings to a Covid Deaths Investigation Team (CDIT).

Deaths in care homes with COVID-19 or presumed-COVID on the death certificate continue to be required to be reported.

The organisation representing Scotland’s independent care home sector says the approach being taken is disproportionate and damaging.

Data released to healthandcare.scot by the COPFS under the Freedom of Information Act show 4,437 deaths within care homes were being investigated on 25 November. Reports to the CDIT on a further 231 deaths had been considered with no further action being taken.

The COPFS issues a quarterly list of care homes associated with cases under investigation.

In November, 644 homes were involved – an increase of five since August – representing more than six in ten of Scotland’s 1,051 adult care homes.

The largest number of deaths in a single place is 38.

When the Lord Advocate triggered the inquiry programme – also known as Operation Koper – deaths at home, in hospices or where a care home resident was in hospital when they died after contracting COVID-19 were not routinely included.

Despite hospital deaths not needing to be reported except in exceptional circumstances, to date 1,150 hospital deaths have been reported to the CDIT. Of these, 24 (2%) have been considered with no further action being taken and 1,126 remained open on 26 November.

A spokesperson for the Crown Office and Procurator Fiscal Service said:

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

On its website, the COPFS says it is not possible to anticipate how long each case will take to consider. In guidance for bereaved families it says:

‘COPFS has established a dedicated COVID-19 Death Investigation Team (CDIT) to make the process as smooth as possible for bereaved relatives.

‘Every investigation will be different and will take a different amount of time before it can be concluded; therefore, COPFS cannot give a commitment about the length of time that any particular investigation will take. However, investigations of this nature may require the collation and consideration of a large amount of information and require to be robust and thorough, and accordingly, may take some time to complete.’

The webpage says the COPFS will keep families updated, and gives contact information for families, but warns that ‘while our investigations are ongoing there is a limit to the amount of information that can be shared’. 

The COPFS says it makes decisions based on the circumstances of each death once it has been fully investigated and can choose to take no further action; can decide that a Fatal Accident Enquiry (FAI) to be held; or, if there is sufficient evidence of a crime and it is in the public interest to do so, COPFS may decide to prosecute.

The national public inquiry into COVID-19 in Scotland, which will begin taking evidence next year, is entirely independent to the work of COPFS.

The CEO of Scottish Care, which represents the independent care sector, Dr Donald Macaskill says he hopes the national public inquiry into COVID-19 will demonstrate that care homes were treated and spoken about in misguided and misinformed ways during the pandemic.

Dr Macaskill says he still cannot see any justification for the decision by the Lord Advocate to require care home deaths during the pandemic to be investigated by the prosecution service:

“Undeniably, the way in which, uniquely in Scotland, the care home sector has been held under the microscope of a Crown investigation and police investigation has been wholly disproportionate to the experience of both staff and, I would argue, to the truth that needs to be told about the experience of residents and families.

“It has been a process which has been hugely damaging, disproportionate, absolutely not human rights based and, so far and to date, all that it has achieved is it has driven experienced, talented, resourceful staff away from the sector and demeaned the reputation of the care home sector.

“I want somebody to tell me why, uniquely, has this happened in Scotland and not in Wales, not in Northern Ireland, not in England – all the other parts of the United Kingdom that all follow the same set of legal requirements and international law? And if that is not because of a decision made around a Scottish context, with inappropriate influence, then I don't know what is.”

 

Read more: Call to end care home deaths probe; Lack of home care deaths investigations ‘unjust’; Double standards claim over NHS & care home deaths; Prosecutors probe hundreds of COVID-19 hospital deaths

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