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No government covers itself in glory handling a new virus; mistakes will be made learning on the job. However the UK government is still not in control of the epidemic and has incurred a higher fatality rate than other countries. We can expect a public enquiry to reflect on lesson to be learnt and point the finger of blame. In some cases this will simply be ministerial incompetence and in a few others it will be criminal negligence. Lawyers will enjoy their moment in the spotlight.

From a risk perspective, criminal negligence can be defined as policy decisions where the unintended consequences were not recognised, thus resulting in exacerbating not ameliorating the problem.  This might not quite be the definition lawyers would use, but from a risk decision perspective it serves to highlight two critical incidents which are worthy candidates for consideration:

Test rationing – The first is the decision to halt testing for the virus on 9 March, ostensibly because the containment phase was over, but in truth because we lacked the capacity to monitor virus penetration among the population effectively. At the time the aim was to provide ICU bed capacity and ventilators for the imminent NHS surge. Only those exhibiting symptoms and in hospital care, were tested for Covid-19, thus testing was rationed just at the time in should have been expanded.  From this date onward attributable deaths went under-recorded, and potential virus carriers, working in hospitals and care homes, spread contagion among their vulnerable charges unchecked.

Bed-unblocking – The second decision was the one to increase bed capacity through evicting bed-blockers, the elderly awaiting transfer to care in the community. Hospitals discharged many direct into care homes without prior virus testing, either because they were asymptomatic or because they posed no threat to the hospital. In so doing the virus was exported to care homes where it could decimate closed communities of vulnerable residents. This was a known risk and one that both previous research and the Italian experience had forewarned the UK government about. It was clear our government prioritised NHS capacity above care home residents. Was this callous or pragmatic?

There is a case for arguing that misinformation about PPE and test facilities could also be considered in the same category. However in treating the epidemic as a war against the virus, any government would argue that such propaganda was necessary for the maintenance of public morale. It would argue that anyway in war truth is always the first victim; deception is part of the armoury of government necessary to maintain the rule of law and order. The fact that both PPE procurement and test facility provision were contracted out to private companies is simply a political point.

What does any government do with an ageing population and declining tax revenues? Pensioners represent a drain on the economy; money paid out in pensions could be better spent on schools, hospitals and investment on public infrastructure. Somebody calculated that for every 10,000 deaths in the over-65 category the government saves £2.5bn. Now that would be a callous calculation and not one the chancellor would admit to.  There is a bigger question: is calculating ‘preventable deaths’ a futile academic exercise or an important exercise in government accountability?