Jumping in with Both Feet?
By David Whalley (retired mechanical engineer)
If the layperson wanted an interesting administrative and public law perspective on the new legislation regarding the UK shutdown, the UKAJI April 3rd blog, ‘ Covid-19 and the UK Administrative State’ (here) would hit the spot. The full implications of the recently introduced Covid Act will take time to sink in. Fionnuala Ni Aolain, Irish academic lawyer specialising in human rights law, was interviewed by Sky News on 1st April (extracts here) and referred to this legislation as the ‘second epidemic’:-
‘The second epidemic parallel to the first is the epidemic of exceptional powers that are being used nefariously …and in violation in many cases of states’ international state law obligations ..states are using the corona virus to do that which they could not do otherwise… We see them in Europe..in Latin America.. there isn’t a single region which is immune and they are characterised by a number of things – an overuse of executive powers, a use of measures that are not really designed to address the issues of the health crisis- which is real- but go far beyond that, the abrogation of parliaments, the stripping of capacity of courts to review the kinds of measures that are taken and increasingly encroachments on free speech, under the guise of calling out fake news but the news we have to be really concerned about is not just fake news about the epidemic but fake news by governments about what they are doing to respond to the epidemic….’
The measures need to come with robust oversight because as Ni Aolain points out, ‘the danger is that if we overreach in these times of crisis, that we’re going to wake up the morning after the pandemic and we are going to find ourselves in weaker democracies., less open societies, with the triumph of authoritarianism in many parts of the world, that we have survived a health crisis’
Robust oversight includes the accurate identification of cases to determine whether the new measures should continue to be applied. The Easter edition of the Mail on Sunday included an article by journalist Peter Hitchens entitled, ‘Matt Hancock is trying to run the UK like my 1950s prep school’. Towards the end of this piece, Hitchens referred to deaths for the week ending March 27:-
‘The total of deaths for that week in 2020 is higher than the five-year average for that time of year,…up to 11,141. ..This is 1,011 more deaths than normal per week, 144 more deaths than normal per day, regrettable but not gigantic.’
He questioned if these figures justify the scale of the reaction, a reaction which UKAJI points out amounts to, ‘the mass disapplication of administrative duties found in other legislation, presumably so that authorities can focus their resources on combating the pandemic.’
Hitchens noted, ‘If you add up the total deaths for the first quarter of the year from respiratory diseases, the figure so far for 2020 (22,877) is less than those for 2013 (25,495), 2015 (28,969), 2017 (25,800), 2018 (29,898) and 2019 (23,336).’
He queried whether this Covid-19 epidemic, ‘is as exceptional as we are being told? If not, why the shutdown?’
Public Health England doesn’t classify COVID-19 as a high consequence infectious disease (here but then scroll down) communicating that, ‘As of 19 March 2020, COVID-19 is no longer considered to be a high consequence infectious diseases (sic) (HCID) in the UK.’ It is ironic that the statement by Public Health England was posted before The Corona Virus Act 2020 went on to receive Royal Assent on 25th March. Public Health England currently continues to inform (Easter Sunday) that there are ‘No known HCIDs’ for the UK (here but then scroll down).
Regarding robust oversight, an expert from the US Food and Drug Administration (FDA) questioned the value of fast tracked tests which are turning out false positives and false negatives (here). Benjamin Pinksy, Medical Director of the Clinical Virology Laboratory for Stanford Health Care, made the point that if a patient is mistakenly thought to have COVID-19, “then you have the potential to clog up the health care system and waste personal protective equipment and the time and effort of health care workers who think they are caring for individuals with COVID-19,”
As regards testing for antibodies, UK scientists involved in validating these ‘game changer’ home testing kits have told the Guardian that no test on the market has yet been shown to be sufficiently reliable.
The uncertainty regarding cause of death diagnosis has been flagged within Sarah Newey’s article in the Daily Telegraph 23/3/20, ‘Why have so many Corona virus patients died in Italy’. She had been informed by Prof Walter Ricciardi, scientific adviser to Italy’s minister of health, that Italy’s death rate may also appear high because of how doctors record fatalities, “The way in which we code deaths in our country is very generous in the sense that all the people who die in hospitals with the coronavirus are deemed to be dying of the coronavirus.”
The above statement introduces doubt about whether, ‘the lethality and infectivity being higher than standard influenza,’ a phrase included in the UKAJI blog, is fact. The specific lethality of Covid-19 cannot be ascertained if cases cannot be accurately identified. This point was made by Dr John Lee writing for The Spectator 29/3/20 (here) at a time after Royal Assent of the Act,
‘How to understand – and report – figures for ‘Covid deaths’, ‘…Many UK health spokespersons have been careful to repeatedly say that the numbers quoted in the UK indicate death with the virus, not death due to the virus – this matters.’
Here is how BBC news, headlined its report of the death of a comedian – ‘‘Eddie Large: Comedian dies aged 78 with coronavirus’ (my emphasis) . Whether little, large or nothing at all, the virus weighting set against patient history is unclear. Since the Coronavirus Act 2020 sweeps away the need for confirmatory medical certification, this also brings disquiet about the accuracy of diagnosing. The temporary Nightingale Hospitals, set up to help deal with the pandemic, are named after Florence Nightingale whose main weapon in reducing the death rate was statistics, communicated through her coxcomb diagrams.
The aforementioned UKAJI blog includes, ‘The administrative response to Covid-19 has been vast, touching, among others, court and tribunal procedure, economic regulation, education provision, immigration enforcement, local government duties, ombud complaints-handling…’
Without reliable testing and without corroborated diagnosis of cause of death, in hospital lockdown, patients admitted have never been more isolated or vulnerable. Were a relative to become concerned about their treatment or diagnosis, they may find complaint handling teams have been redeployed. The Parliamentary and Health Service Ombudsman explains (here):-
‘ Medical staff need to focus on caring for patients, and complaint handling teams are being moved to other frontline services health service’.
The ‘mass disapplication of administrative duties’ referred to in the UKAJI blog may include a perceived distancing of the Health Service Ombudsman from his role at this critical time. Can there be administrative justice when there is so little administration? The PHSO informs:
‘Having considered the situation carefully, we (PHSO) have decided that we should not place additional burdens on the health service during a time of national emergency. We are not currently accepting any new health complaints or progressing existing ones which involve contact with the health service.’
Without reliable statistics, all the public can do is trust. But it is only four months since the Health Service Journal revelations shook trust in hospital care, at a time before lockdown and when patients were receiving visitors. In his article entitled, ‘Shrewsbury and Telford joins Morecambe Bay and Mid-Staffs on grim roll call of horrific NHS scandals.’ Shaun Lintern wrote,
‘The pattern of failing to learn lessons, of covering up rather than coming forward, is repeated not just in that single trust but across the whole NHS. Who knows where the very same mistakes are happening, right now, in hospitals elsewhere across the country?
Lintern pointed to the top of the tree where, ‘there is a whole pack of national bodies and regulators who have frequently been found to be willing to look the other way or worse when poor care incidents are brought to their attention.’
This blog began with a quote from Fionnuala Ni Aolain and it will end with another from her about the Covid-19 Act (same source):
‘It concerns an office like mine when we see a government producing a piece of legislation that’s hundreds of pages long, in the moment of emergency. It makes us wonder whether or not ..those powers were sitting in a drawer somewhere waiting to be used..powers that have been on a wish list for some time.’
Should the shutdown of the country, which will precipitate hardship, be found to be based on dubious evidence, the rationale for the Covid-19 Pandemic Act may be, for the next generation, what the ‘Dodgy Dossier’ was for mine?
An excellent article David. There are far too many questions about this pandemic yet to answer. These emergency powers which were drafted with great speed, are due to be in place for two years. Parliament assured regular review but the government have an 80 seat majority, so will be able to overcome any objections. They give great powers to the authorities to break up gatherings and pursue individuals. Following on from this pandemic and the economic fall out we have a no deal Brexit looking increasingly likely. How easy it will be for the government to ban union protests, marches and other democratic means of protest where people gather in large numbers. How easy for those in authority to detain the leaders of such protests or other individuals on the grounds that they are a ‘danger’ or that they have mental health issues which can now be determined on the basis of a single doctor. These are dangerous times for democracy and for administrative justice.