Care homes and COVID-19: investigation into deaths

New figures reveal that Operation Koper – the investigation into COVID-linked deaths in Scotland has now received a total of 2,242 death reports.

The majority of those reports relate to care home residents. The Operation is investigating deaths in at least 474 separate Scottish care homes.

How is the investigation being carried out?

The Lord Advocate – as the head of the Crown Office and Procurator Fiscal Service ("COPFS") – is responsible for the investigation of sudden, unexpected and unexplained deaths in Scotland. He has set up a COVID-19 Deaths Investigation Team ("CDIT") within COPFS to carry out investigations into certain COVID-linked deaths.

COPFS has instructed Police Scotland to gather information about deaths referred to the CDIT. Police officers have interviewed care home staff members and required care providers to produce documents said to be relevant to their enquiries. COPFS has also drawn upon support from the Care Inspectorate, the specialist regulator of care services in Scotland.

In due course, COPFS will have to decide whether it is appropriate to hold a Fatal Accident Inquiry or to commence criminal proceedings in relation to any particular death.

How has the care sector responded?

The care sector has, of course, experienced unprecedented challenges during the COVID-19 pandemic. Our colleagues in the Casualty team here at Brodies, recently discussed the risks to care providers of civil claims arising from COVID-19.

Scottish Care – the umbrella body which represents independent care homes in Scotland – has expressed "major concern" about Operation Koper. In particular it observed that:

Frontline staff and managers are spending significant amounts of time responding to investigations while also responding to a pandemic.

It was not aware of NHS staff being interviewed about every death taking place in a hospital and perceives a disparity of treatment.

The investigation is causing considerable distress.

While recognising that assurance must be given to bereaved families and the wider community, Scottish Care has indicated that it does not consider the balance between "accountability and intrusive investigation" has been struck by Operation Koper.

What should care providers do if contacted by authorities?

While care providers will no doubt be keen to facilitate enquiries undertaken by the police, given the seriousness of the matters, they should consider their options carefully if contacted in connection with Operation Koper.

Prior to any substantive engagement taking place, care providers may wish to take legal advice. They should also consider whether their staff who are to be interviewed require legal or other support.

Brodies is well placed to advise care providers in relation to their response to COVID-19, and with any regulatory or police enquiries they may receive. For more information, please contact Jackie McGuire or your usual Brodies contact.