Sue Richards
Executive member, Keep Our NHS Public,
Sue Richards opened Session 5 by stating that Keep Our NHS Public believes very strongly that there ought to be a full judicial public inquiry, but each time Boris Johnson is asked about it, it seems to recede further and further into the distance.

So this Inquiry is an interim step.
 

Boris Johnson has said ‘we did our best’ but Sue Richards stated with irony ‘that may not be quite enough because there are 130,000 deaths in the UK from Covid'. She asked 'is it really the case that we couldn't have done any better than that?' We need to examine and think about what we have done, and learn from it so that we don't make the same mistakes twice. And that's what this inquiry is about.

​
 

Michael Mansfield QC
Chair of the Panel

Michael Mansfield opened by commenting on the visit that the Archbishop of Canterbury, along with other religious leaders, had paid to the commemorative wall for the bereaved and survivors of COVID-19 on the south bank of the Thames. The Archbishop had taken the opportunity to add his strong voice to the many others, including the bereaved, who are demanding a full judicial inquiry.

 

However, Michael Mansfield added, there is a problem for the Government - which is why we say the likelihood of these voices achieving their objective is actually quite small: an inquiry was announced last July by Boris Johnson, since when he's done nothing. A judicial inquiry takes time, resources and money to set up, so it should have been done by now. But Johnson has done nothing at all and he's not indicating any time within which it might be set up.

 

To put it bluntly, Michael Mansfield said, our Inquiry is ‘getting on with it, and replicating as far as we're able, the conditions that might apply. We call this a quasi- judicial inquiry’.

 

He pointed out however that there are other importance distinctions between our People’s Inquiry and a judicial inquiry. In the last week or so everyone would have heard a lot about sleaze, the ways in which contracts have been handed out worth many millions of pounds, to the private sector. Ask yourselves: where has the money gone? There are various names connected with this ,such as Boris Johnson, David Cameron, Matt Hancock etc.

 

Michael Mansfield stated that when it comes to a Government-appointed public inquiry, it is the government that decides the terms of reference and in fact a judicial inquiry is in fact a Government inquiry. The Government appoints the panel, and determines the terms of reference. He added: ‘So they could, for example, decide to say to any future judicial inquiry, if it ever gets off the ground, "you're not going to be able to look at the activities of ministers and the way in which contracts were handed out or distributed", even though they were very central to this pandemic'.

 

The other major distinction, added Michael Mansfield, is that we are a People's Inquiry and we do allow - unlike in a judicial inquiry, which is handled differently - members of the public to ask questions they want answers to. ‘So there are some very significant and important differences to the exercise we're conducting.’
 

 

Witness I: Unjum Mirza
Witness statement

Unjum Mirza is a train driver on the Victoria line on London Underground. He also has a trade union role as the BAME (Black Asian and Minority Ethnic) representative for the train drivers union ASLEF on the Victoria line.

 

Unjum Mirza’s evidence focused on issues of safety for members of his union, for transport workers and the public more broadly during the pandemic, and the inadequate responses of his employers at various points. His evidence underscored the importance of trade union organisation and workers’ self-protection during this time in the face of a slow response from management. As key workers faced daily dangers from the pandemic, the main protection was their own awareness and self organisation. 

​

London Underground and lockdowns
 

• At the beginning of the pandemic London Underground closed 40 stations, effectively ‘encouraging congestion in fewer places’. If the 40 stations had stayed open it would have helped to spread passenger traffic.  

• The messaging from Government was too unclear for people to realise that use of public transport was for key workers only. And with so many people on zero hours contracts they did not have a choice between going out and getting a wage to feed their family, or isolating, 

• Unjum Mirza said that the second lockdown was called the fake lockdown at work, with passenger numbers running at between 35% and 40%. The surge in late December and loss of life had not surprised him and his co-workers.

 

The role of key workers
Unjum Mirza explained how key workers have been failed by Government - including NHS staff, nurses, doctors, those in the frontline, saving people's lives. He explained to the Panel how he met key workers at the bus stop at 4.30am including refuse workers from the local council, cleaners and others on their way to work. He felt that these are the people who are absolutely key to keeping society running at any time and that everything would have fallen apart without them in the pandemic, and he referred to ‘the interconnectedness of our work – we cannot operate without each other.’

 

Bus drivers were let down

• Unjum Mirza described how bus drivers had told him they were ‘just totally abandoned’ at the beginning of the first wave. 

• There had been an absence of any safety measures to protect drivers leading to a ‘horrific death toll’ on the buses of 50 bus drivers (in London at three times the average national death rate. Some drivers who had partitioned off the front seats of their bus, using tape, were told ‘there is no agreement to do this’ and if this continues ‘there will be further consequences and disciplinary action’.

​

Safety

• Unjum Mirza stated that the risk assessments were appalling. The opening sentence of the London Underground/TfL risk assessment was ‘We're following the advice of the government and Public Health England.’ The interpretation of this by union members was that the management ‘were going to try and run this on “a wing and a prayer”, where we do the praying, and they do the winging.’ 

• The union had had to push for a solid and consistent cleaning regime; they had had to fight for masks, hand gel and gloves. It was felt that these were ‘fundamentals that should have been delivered’ but these instead were things that had to be constantly fought for, up to taking action under safety legislation and refusing to work on the grounds of safety.

• On the mass testing in two London Boroughs with the South African variant: including Lambeth, which has the Victoria Line terminus, management’s response was to say initially that they knew nothing about it, there was no acknowledgement. Drivers had had to push for information about testing and access to test kits. Again, refusing to work on grounds of health and safety had to be used to get things moving.

 

The Future

• Unjum Mirza fears that the Department for Transport and others will seek means to further undercut the train drivers and tube workers when their industrial strength has been reduced during the period of the pandemic.

• The Prime Minister has already begun to talk about the need for driverless trains

•  Workers’ struggles have already begun generally over contracts, redundancies, pay, benefits and pension following Covid. The NHS pay offer is an insult to staff.  Struggles have already begun with British Gas and bus drivers in Manchester. Network Rail and London Underground will be the sites of struggles and industrial conflict on a scale not seen since privatisation. 

​

Witness 2: Professor Raymond Agius
Witness statement

Professor Raymond Agius is an NHS doctor although for more than half his time he was also in academic employment, working in both university and the NHS. For the last 16-17 years of his professional life, he was the Professor of Occupational and Environmental Medicine at the University of Manchester. There he led a centre for environmental health, and was a consultant at Manchester Trust. He is now retired but re-registered as a doctor when the pandemic struck. 

Professor Agius discussed various aspects of safety legislation in relation to the Covid pandemic. 

​

General risks to employees
 

• The 1974 Health and Safety Act and legislation that stems from it places an obligation on employers to conduct what is called ‘a suitable and sufficient assessment of the risk’ to all workers, in addition an obligation to individual workers. And the generic assessment has got to be proportional to the scale of the risk and the scale of the pandemic warranted a very detailed and substantive assessment by employers of the general risk to their employees

• According to Professor Agius therefore, for an employer simply to state they had ‘read the PHE guidance’, would, in his opinion, be very disproportionately poor, in comparison to the risk. PHE guidance does not provide sufficient protection for the individual and should be regarded critically in this sense.

• Professor Agius and colleagues in professional bodies had felt an obligation to try and support employers struggling with risk assessments as the pandemic began. They had had to make ‘guesstimates’ of the level of risk and use their professional judgement as to what they thought would be reasonable, precautionary steps; and put out guidance to give an idea of how they could map out the exposures of employees to risk and what sort of measures to control the risk should be used. 

 

Risks for healthcare workers and BAME workers

• Professor Agius was asked about the finding that, compared to non-essential workers, healthcare workers have a seven-fold increase in risk of severe COVID-19, testing positive in hospital, or death.

• Professor Agius responded that the ‘principal determinant of dying from the disease is catching the virus in the first place, being exposed to it.  There are other risk factors related to the individual and to his or her background. For example, men have higher risk of dying if they contact the disease than women. The risk rises exponentially with age and prior or concurrent illness, like diabetes, respiratory disease, kidney disease or risks that are related to being overweight.

• He also added that there are socio-economic factors such as living in crowded accommodation, being ‘poor in your means’, if the jobs you do do not have adequate protection. These factors tend to correlate to socio-economic factors and to ethnicity, which is why the answer to the question is exceedingly complex.

 

The role of the Health and Safety Executive (HSE)

• When an employee contracts a disease and a ‘reasonable judgment’ can be made – in the words of the regulation – that on the balance of probability the disease was contacted at work, provided it fits in certain categories of disease – of which infectious disease, and COVID is one – the employers are obliged to inform the enforcing authority.

• There can be an issue where Public Health England guidance is followed, for example by a nurse wearing a surgical mask in A&E, who still may contract the virus, who can be then judged as not having caught the virus at work, therefore the case would not be reported and would not be investigated. 

For more discussion on the point of some of the complications of reporting to HSE see Professor Agius’s statement and some of the accompanying articles.

​

• HSE’s own numbers show they've had about 25,000 cases reported (not all the numbers have been published, and do not include 5-6000 local authority cases). Out of these only 500 investigations have taken place (though some may be for more than one employee, if they were reported in batches.)  So the vast majority have not been investigated. In the first wave there were 1200 cases reported per week, and in the second wave cases reached a peak of reports of 1700 per week. 

 

Virus transmission and effect on workers

• Professor Agius and colleagues believed that the airborne transmission of the virus had been grossly underestimated. Their conclusions (unlike those of Public Health England and the WHO) were that the virus was likely to be spread by inhalation and that healthcare workers, even just when routinely looking after patients (without necessarily any additional procedures) needed better protection.

• The HSE in 2008 had done research which showed that surgical masks would hardly stop the (SARS) virus at all, FFP3 masks being much better. The HSE had said in its guidance of 2013/2014 that if you treat biological agents as being fine particles you should use an FFP3 mask.

• So all this evidence was there, all the lessons had been learned. And yet messages came out such as ‘We do not have absolute proof that the virus can be measured in air. We think you can get by with a surgical mask’:  this was being used to ‘rationalise the rationing’ said Professor Agius. He felt that this lack of protective masks hadn’t just happened in the first wave, when the country was unprepared in terms of stock, but also in the second. The country had invested billions in buying PPE, and if these had  been mobilised for the second wave more widely, not just for nurses, but for bus drivers and others, ‘then we would not have had the peak in my judgement that we have in fact had.’
   

Prevention of risk

• Professor Agius stated that massive investment is needed in ventilation in buses, so you have separate ventilation for the drivers and passengers, and in hospital and schools. Some of this could have been done in Summer (2020) but was not.

• Some other countries had probably adopted a slightly better policy than the UK, in that they had recognised the issue of occupational exposure, and therefore had vaccinated occupationally high-risk groups, not just in healthcare, but in other areas, for example,  teachers. This would have set back the vaccination of older people but would have protected teachers who suddenly had to face a surge of exposure on return to school. 

• Professor Agius stated that people who are taking on this burden by virtue of their work on behalf of society, deserve that level of personal protection as a precondition, as well as the vaccine, as a fundamental right.

Additional articles

Covid-19 in the workplace: Reporting guidance should reflect risks to a wide range of workers British Medical Journal, 21 September 2020

Raymond M Agius, John F R Robertson, Denise Kendrick, Herb F Sewell, Marcia Stewart, Martin McKee

BOHS – Covid-19: Occupation Risk Rating and Control Options According to Exposure Rank
The Chartered Society for Worker Health Protection, July 2020
Editorial: Covid-19 and Health at Work Raymond Agius, Occupational Medicine, 29 April 2020

Editorial Covid-19 and workers’ protection: lessons to learn, and lessons overlooked Raymond Agius, Occupational Medicine

​

Witness 3: Kirsty Brewerton

Witness statement

Kirsty Brewerton is a clinical sister in the NHS. She has also started a community organisation of which she is CEO.

 

Kirsty Brewerton’s evidence dealt with her experience of working as an A&E nurse prior to the pandemic, the damage done to the NHS particularly in terms of understaffing and her consequent mental breakdown. She talked about her experience of returning to work in the pandemic during the first wave and onwards. 

​

• Kirsty Brewerton told the panel about the gradual decline of NHS services during austerity and the intense impact decisions had had, which had been really worrying for her as an NHS worker. She described how A&E had become ‘a bit of a bottleneck’ for people needing to be admitted. She reminded the panel of previous winters where people had been queued up in corridors on trolleys, and that had been her reality for a few years. 

• The situation had worsened and Kirsty Brewerton told the panel that she felt nothing was being done to try and change it. ‘The numbers were going up, and the workload was increasing, and you've got less people to help out’. She had felt at times that she had been forced to work in conditions, that were unsafe for patients. 

• Kirsty Brewerton described the impact of ‘the moral injury’ - of feeling unable to do her job safely when looking after patients. She described how she had become a nurse because she cared about people, and wanted to help them. So when she had been forced into a situation where she could not do her job to the level that she had been trained for, it had been very hard mentally.

• When she returned to work during the first wave of the pandemic there had been a lot more staff as people were pulled in from different departments to cover the Covid work.

• The second wave though had been ‘really tough’ and the staffing had been the worst Kirsty Brewerton had ever seen. For example, on some occasions there had been one nurse to 21 patients. Staff were leaving due to the stress, also quite a few staff contracted Covid and Long Covid. 

• Kirsty Brewerton told the panel that in the end she felt that the PTSD and mental stress was worse than the lack of PPE. The mental health pressures had been much more subtle. Staff had not been trained to monitor their own mental health and had not been routinely risk assessed for mental health problems or stress. 

• Her current place of work has put in place excellent mental health support for staff and has offered a range of services which have been very helpful. However this provision varies between Trusts and there is no standard provision and risk assessment, no minimum amount of support that should be available.

• Kirsty Brewerton ended by saying that the NHS and Trusts should have had a duty of care for staff that should recognise that they are at risk, even before the pandemic: ‘It's a stressful job, and it's getting ever increasingly more stressful.'

​

Witness 4: Dr Chidi Ejimofo

Dr Chidi Ejimofo is a Consultant in Emergency Medicine, a Fellow of the Royal College of Emergency Medicine and Fellow of the College of Surgeons, Edinburgh. He has been a consultant for 11 years.

 

Chidi Ejimofo spoke about his own experience in A&E during the first and second waves of the pandemic, and also the impacts on other staff. He discussed how his department and hospital had had to swiftly reorganise.  He discussed with the Panel decision-making about patients and the need for more support from regulatory organisations during events such as the pandemic. 

 

The first wave

• Dr Ejimofo told the panel that, during the first wave, ED [emergency department] and acute staff that he worked with, including from other specialties, saw Covid-19 as ‘dealing with something novel, something that we'd not necessarily been trained to do, but we saw was within our capacity.’  This had led to initial enthusiasm but this had been ‘swiftly tempered by the escalation in terms of patient numbers and ‘things that we were called upon to do’.

• The ED had had to transform itself from its normal physical limitations to becoming pandemic-ready without any additional resources.

• Patients had been directed nationally to go to A&E and not to their GP, to the extent that at the early stage staff were administering tests in the hospital car park. 

• Initial enthusiasm was swiftly replaced by ‘dogged determination to try and get through despite all the obstructions that were in the way. It just became very hard.’

• There was insufficient PPE, and Dr Ejimofo said that he and colleagues had been unhappy with guidance they were getting nationally on the pandemic, and PPE - for masks for example. They had resourced masks themselves, paying for them as a consultant body, so that they and their staff had PPE they could have confidence in.

• There was also the strain of not having enough staff, as many people fell ill.  Dr Ejimofo spoke of the ‘underlying fear’ of a large number of staff,  including himself, who come from the BAME group.

 

Organisation of the department

• The department had understood that the virus was airborne, but for a long period of time, they were also told about surface contamination. 

• They had had to separate out streams of patients from those who were probably COVID patients from those who were not.

• There was only had a fixed amount of space and the department was ‘of course built to have flow from one end in and the other way out’. Suddenly the department had had to be split in two ensuring the parts were hermetically sealed to prevent cross contamination. 

• It was more complicated even than that because in any emergency department, there is an area for the less acute problems, which might be called an urgent care centre, a majors area, and a resus area. These had to be duplicated for both Covid and non-Covid cases.There were also split waiting and triage areas. 

• Both sides had to be staffed.This was not as simple as just splitting the workforce in two;  staff were brought in from other areas to help in an area that they weren't conversant with.

 

The second wave

• Dr Ejimofo told the panel that by the second wave, they were already quite conversant in terms of what they needed to do in order to split the department and to change workforce demands. 

• But by the second wave, Dr Ejimofo stated, enthusiasm had ‘pretty much gone’. And the workforce was exhausted. It had been depressing because they could see the second wave coming ‘from quite a way off’ and yet were being told by Government that this was not the case. Department staff were already talking about the inevitability of a second wave by about October/early November. They had had their suspicions when the’ eat out to help out’ was put in place.

• Staff were exhausted, colleagues had fallen sick, some had become severely unwell, there had been staff deaths within the Trust. So people were less prepared, after nine months, to jeopardise their own wellbeing. Dr Ejimofo stated: ‘The second wave was hard, it really was.’

• There had been a groundswell of protests about the need for risk assessments amongst staff, including nurses, because people in professions and key workers were dying, but nothing seemed to be being done. Unfortunately the risk assessments were just tick boxes, which might have been accepted in normal circumstances but not at this time and people were forced to become more militant. 

• As a department they had tried to put staff from outside the department to work in non-critical areas so that they could concentrate their ED staff within the critical areas. Seniors had done extra shifts to ensure that there was sufficient support for others, but Dr Ejimofo is aware that this had been a huge pressure. He hoped that the new focus on mental wellbeing that had emerged was not just ‘a bit of a bright spark idea’ in the middle of a pandemic.  

• Dr Ejimofo told the panel that as Emergency clinicians they are required to do drills for major incidents ‘so that when something happens, it's not a shock’. He said that ‘it’s a shame that from a national perspective, that hadn't occurred. We weren't prepared. We didn't have the PPE, we didn't have the protocols, we didn't have the kind of rapid response systems, we didn't have the infrastructure.’

• He told the panel that in his view the NHS in a large way ‘has been starved of funds for, as far as I'm concerned, the last about 12 years. And that's just in terms of normal functioning. Within a pandemic, we cannot afford to have those kinds of deficiencies in place. We are understaffed. And that's within normal periods - you cannot afford to have that within pandemics.’

• The Nightingale hospitals were a disappointment because people at higher levels did not consult frontline staff.  He told the panel those hospitals would have taken away valuable and scarce intensive care staff from hospitals where they were required, and where there already weren’t enough.

• In response to a panel question about doctors making difficult decisions, about which patients to treat, Dr Ejimofo replied that those decisions only became germane when you ran out of resources. ‘So if you had patients where there was a high likelihood of the patient not surviving with a large number of comorbidities, all of the things were pointing against the successful outcome in terms of an attempt towards resuscitation, which is the same criteria you would use during normal times, then you would apply those. Where it became a case of real moral hazard was when we totally ran out of resources. And yet you had patients who you knew, within ordinary times, if we'd had the resources or places to send them, the odds were that they would survive. So you were now having patients who rather than going to ITU, were going to HDU, rather than going to HDU, were going to wards where they had upped the intensity of the staffing.’

• In terms of support for staff from employers and professional and regulatory bodies, Dr Ejimofo told the panel that there needs to be a robust and independent way of feeding back or reporting, when staff feel they are being constrained from being able to carry out their duties, secondary to things that are out of their control: ‘I think that was very much lacking during this pandemic.’ 

​

Catch up

• Watch Session 4: Youtube

• Listen to People’s Covid Inquiry podcast: podfollow

• Full transcript will be available