The Doctors Association UK and the Good Law Project have launched legal action to try to force the UK government to set up a public inquiry into the failure to procure and distribute enough personal protective equipment (PPE) for frontline health and social care workers in the covid-19 pandemic.
The move comes after some 200 health and care workers are thought to have died from covid-19 and many doctors have complained about a shortage of the right gowns, masks, and visors.
Article 2 of the European Convention on Human Rights puts the government under a positive obligation to take appropriate measures to safeguard life. Apart from the duty to take all reasonable steps to protect an individual’s right to life, the convention imposes a duty to initiate an effective independent investigation into individual deaths.
The two organisations have written a pre-action letter to the Government Legal Department asking ministers to immediately appoint an independent investigator, take steps to preserve evidence, identify witnesses, and commit to involving relatives of health and care workers who have died.
They say that they support the government’s attempts to mitigate the crisis but are “deeply concerned” about the failure to procure and supply adequate PPE. Unless they receive a reply by 25 May they are threatening to bring a judicial review case against Matt Hancock, the health and social care secretary for England.
Ministers seem to have accepted the inevitability of an eventual inquiry into the government’s handling of the pandemic but have insisted that the midst of the crisis is not the right time.
“The government needs to know exactly what has gone wrong and is continuing to go wrong. Coronavirus is unpredictable and there are very likely to be future waves. Unless we understand the failings now, unless we learn from them, we risk making the same mistakes over again.”
Jolyon Maugham QC of the Good Law Project
The state’s investigative duty under article 2 is normally discharged through coroners’ inquests, but the letter argues that inquests will not be sufficient to discharge the duty in the circumstances of the pandemic. It points out that recent guidance from the chief coroner discouraged coroners from inquiring into whether policy failures had contributed to the deaths.
“Although inquests into individual deaths are now being opened, coroners do not have the practical means to conduct investigations into PPE issues,” says the letter. “Coroners in different jurisdictions may address the same systemic issues but reach different conclusions or be unable to reach fully considered conclusions on those issues.”
The two organisations also argue that the state’s legal duty will not be met by a delayed public inquiry.