A decision by Scotland’s top law officer to treat hospital and care homes differently when it came to investigating covid-19 related deaths has caused “irreparable damage”, it has been claimed.

Figures obtained by healthandcare.scot reveal that, while more than nine in ten covid-19 deaths in care homes are under investigation, around only one in ten NHS hospital deaths have been submitted to the Crown Office Covid Deaths Investigations Team (CDIT).

The former Health Secretary Jeane Freeman stated earlier this year that there was “no difference” in how the two sectors were being treated by the prosecution service in Scotland.

A Scottish government spokesperson told healthandcare.scot this week that decisions on the investigation of deaths were made independently of ministers.

By the 23^rd May this year, 10,114 deaths occurred in Scotland with covid-19 mentioned on the death certificate, 33% of which took place in care homes, 60% in hospitals and 7% at home or non-institutional settings.

A Freedom Of Information request submitted by healthandcare.scot to the Crown Office and Procurator Fiscal Service (COPFS) shows 776 reports of covid-related patient deaths in hospitals in Scotland have been made to the CDIT, along with six NHS staff deaths.

This represents some 13% of deaths associated with covid in hospitals.

By contrast around 3,200 deaths linked to covid-19 that took place across 480 care homes in Scotland are being looked at by investigators – more than 90%.

According to figures held by the Crown Office, 11 care home staff members have died with covid mentioned on their death certificate. 

Normally deaths caused by an infectious disease that pose a serious risk to the public must be reported to the COPFS. But at the start of the first wave of covid, Scotland’s Lord Advocate relieved doctors of the duty to report covid-19 deaths ‘unless there was a substantive reason for doing so’.

This was, according to the COPFS, consistent with what has happened previously in Scotland when other infectious disease outbreaks occurred.

The decision was taken ‘with a view to minimising the burden of reporting on the medical profession at a critical time in the pandemic’.

However, in May 2020 the Lord Advocate decided two categories of covid-related deaths did need to be reported after all, on the basis of ‘public anxiety’: cases where the deceased may have contracted the virus in the course of their employment, for example as an emergency service worker, and deaths among care home residents.

Scottish Care, which represents independent care providers in Scotland, told healthandcare.scot the Lord Advocate’s decision to treat the care home sector with such a degree of “disproportionate focus” had caused “considerable distress…and has done little to enhance community assurance”.

The organisation said: “We are not aware of NHS staff being interviewed about every covid death that takes place in a hospital, even if patients have caught the virus which killed them when in an NHS setting and for unrelated reasons.

“We are aware that there is a demand upon care staff to respond to nearly three dozen questions, to provide extensive personal records and files for patients, which are taking frontline staff away from their duties of care and support in the middle of a pandemic.”

Scottish Care added: “Whilst it is of course critical and essential that assurance is given to families and the wider community that everything that could be done was done to protect their loved ones, the balance between accountability and intrusive investigation has not, we believe, been one which the Crown Office has achieved.

“We believe these investigations are wholly disproportionate and are causing irreparable damage to the professional integrity of nurses and carers who have been exhausted beyond measure in fighting the virus.”

The Scottish government has previously denied the care sector was being treated differently.

During a conference hosted by Scottish Care in January 2021, delegates raised concerns that social care providers, particularly care homes, were being subjected to a higher level of investigation “as if the assumption was there might be something untoward about those deaths.”

In response, then Health Secretary Jeane Freeman, who stood down at the May election, was adamant there was no discrepancy, saying:

“The Crown office investigation into deaths in care homes – Operation Koper – that is underway; you do find exactly that in the health service. It is an automatic investigation by the Crown Office that is triggered in certain circumstances in the health service.

“The difference is that in the health service it has been part and parcel of practise year after year, so it doesn’t stand out as unusual.

“But there is no difference in how the Crown Office and Procurator Fiscal Service is dealing with this although I appreciate it is new in the care sector and therefore people perhaps feel they have perhaps been picked on.

“You are not being picked on – what is happening in the care sector is exactly what happens in the health sector.”

Asked this week whether it still maintained that both sectors are being treated equally, a government spokesperson said: “The Scottish government will continue to reflect on the handling of the covid-pandemic and a full independent public inquiry will consider all aspects of that, including the impact on care homes and their residents. 

“A multi-agency information gathering process in relation to deaths in care homes, under the direction of the Crown Office, is underway, carried out independently of ministers, so it would be inappropriate for the Scottish government to comment further at this time.

“Decisions on the investigation of any death are for the Crown Office and Lord Advocate.”

 

Read more: Health Secretary: No double standards on NHS and care; Care home deaths probe branded ‘unequal’; Blanket NHS tests possible amid hospital virus spread

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