The Scottish Government’s “COVID-19 – A Framework for Decision-Making” was widely welcomed when it was published last week. That must partly have been because it was, after all, a plan, and strategic planning has so far been either absent or invisible.

The plan has also won friends by avoiding the incautious language used by Boris Johnson, Matt Hancock and some of their advisers. Instead, it quietly arrives at much the same place by keeping references to enforceable human rights to a bare minimum and filling the gaps with aspirational but unenforceable principles like “dignity” and “autonomy”.

But the plan has not aged well. For example, it describes the Scottish Government’s COVID-19 Advisory Group as being “in alignment and discussion with the advisory structures in other parts of the UK including SAGE”. The day after it was published, the Guardian revealed that members of SAGE (Scientific Advisory Group for Emergencies) include Dominic Cummings and Ben Warner, a data scientist that Cummings had worked with on the Leave campaign for Brexit. According to the Guardian, Chief Medical Officers and Chief Scientists of the devolved administrations are allowed to “sit in” on meetings, but not to contribute.

So the UK Government’s scientific advice has been shaped at source by politics. Scottish officials evidently knew of the problem. Ministers must have known too, as must members of the  COVID-19 Advisory Group. They all left it to the Guardian to break the news, very late in the day, to the rest of us.

Until last week the only published documents dealing with top-level coronavirus strategy in Scotland were the “Four Nation” UK Action Plan and the associated Summary of Response Arrangements in Scotland, both published on 3 March. The UK was then in the first of the phases set out in the Action Plan – the Containment Phase. The Action Plan set out a number of specific measures for that phase, saying for example:

“Once a case has been detected, our public health agencies use tried and tested procedures for rapid tracing, monitoring and isolation of close contacts, with the aim of preventing further spread.”

We now know that some claims made in the plan were greatly exaggerated, to put it kindly. For example, it said:

“The UK maintains strategic stockpiles of the most important medicines and protective equipment for healthcare staff who may come into contact with patients with the virus. These stocks are being monitored daily, with additional stock being ordered where necessary.”

And some of the measures have turned out to be ineffective, as could easily have been foreseen. Aircraft arriving from some countries were required to provide a “General Aircraft Declaration” stating that all passengers were well. But that did not prevent infected but “well” passengers from coronavirus hotspots stepping untested from aircraft onto crowded public transport systems.

But it was at least a plan. The same cannot be said for the section of the Action Plan dealing with the Delay Phase. It just said:

“Many of the actions involved in the Contain phase also act to help Delay the onset of an epidemic”

and

“many of the actions people can take for themselves… also help.”

It added:

“Our experts are considering what other actions will be most effective.”

The switch from containment to delay was announced just nine days later, on 12 March. Lockdown measures came into effect on 23 March. No more plans were published. We remain in the delay phase of the Action Plan.

The Scottish Government’s Framework for Decision-Making sets out to “guide us as we make decisions about transitioning out of the current lockdown arrangements.” But nothing has yet been published to guide decision-making about implementing the lockdown. The framework document is haunted by that absence.

The document begins by setting out seven principles. The first of them is headlined “Safe”. It says:

“We will ensure that transmission of the virus remains suppressed and that our NHS and care services are not overwhelmed.”

It’s telling that the goal is for the virus to remain suppressed, implying that it is suppressed at present. “Suppressed” is clearly meant to be understood as a relative term. But there is nothing safe about the present level of suppression. It’s also telling that nothing in the description of the “Safe” principle is truly a measure of safety. There is no mention of preventing serious illness or death. Suppression of the virus and protection of the NHS may improve safety. Or they may not. The NHS could be protected from becoming overwhelmed by keeping people away from it, thereby putting lives at risk.

Of the remaining six principles, two touch upon human rights. They are headed “Lawful” and “Fair & Ethical”.

Lawful – “we will respect the rule of law” – is a very low bar for any government to set itself. Only a truly chaotic government would be unable to make laws it felt able to abide by.  Does “lawful” mean compliant with domestic and international human rights law as we currently understand it?

Asking the Law to wait outside

It might not, if broad support for Scottish Government measures prevents them from being tested in court in a timely fashion. Or if the Scottish Government can argue that human rights law provides more lattitude than most of us might suppose. Or, more starkly, if the UK were to derogate from the European Convention on Human Rights. In that case, government would be respecting the rule of law by politely asking the law to wait outside until it’s through. By leaving human rights law out of its statement of principles the Scottish Government has preserved some room for manoeuvre should it be accused later of human rights violations.

Under the heading “Fair & Ethical” the document says:

“We will uphold the principles of human dignity, autonomy, respect and equality.”

Of these terms, only “equality” engages with a clear and enforceable legal principle. But the statement of principles avoids mentioning the Equality Act 2010 or to the legal concepts embedded in it.  Enforceable rights are present only as an offstage whisper. “Equality” in this context could be read in line with human dignity, autonomy and respect as just a concept, open to further discussion.

The next section of the document is headed “Scotland’s Approach”. It provides more detail and decoration than the summary of principles. This is the part of the document that has pleased some critics of UK policy and led them to suppose that a shift in Scottish policy is underway.

It contains nothing like Boris Johnson’s musings that we might “take it on the chin”. Nor is there anything like Patrick Vallance’s comment to Radio 4 on 13 March that we need to “build up some kind of herd immunity so more people are immune to this disease” – a comment he is now trying to finesse himself away from. That should not be a surprise. Only a very inattentative civil servant would let statements of that sort into a document of this sort.

Instead, the document says:

“While it is obvious that government cannot guarantee that no-one will become infected with this virus in future, we are clear that an assumption that there is a proportion or section of the population that it is safe or acceptable to allow to be infected forms no part of the Scottish Government’s policy or approach.

Every individual member of Scottish society matters and our entire strategy is focused on preventing every avoidable death. There is no such thing as a level of ‘acceptable loss’. That is an approach which reflects our commitment to safeguarding human rights and upholding human dignity. It is the ethically correct approach to take. And it reflects the caring, compassionate and inclusive ethos of Scottish society.”

This is excellent. But it is not written in the same way as the summary of principles that preceded it. It is descriptive, not prescriptive. It isn’t a promise. It’s just a claim about what the strategy is focussed on. It remains the case that “preventing every avoidable death” is not written into the “safe” principle that heads up or the document or into the four-point “assessment framework” that appears later on in it (it refers instead to minimising “overall harm”).

Another section of the document deals with preparing for transition out of lockdown. It takes a measured approach, saying:

“As a result of the current lockdown, there are early signs the virus has been slowed – but it has not been eradicated.”

It also includes a chart showing the doubling time of COVID-19 cases. The document comments:

“Before lockdown, cases would double around every 4 days. Cases now take over two weeks to double.”

There is no explanation of how the chart was derived. Is it mostly likely based on laboratory-confirmed cases, as are similar charts for other countries. But the great majority of people infected have probably not been tested. Many may not have contacted the NHS at all. People with a fever and a cough are currently being advised to phone the NHS only if they are also suffering from shortness of breath or breathing difficulties. Any attempt to estimate doubling time from confirmed cases is beset by selection effects that may have changed over time and would be very challenging to unravel. The same difficulty applies to estimates of the reproduction number (“R number”). The document discusses estimates of the number at some length, without any reference at all to their reliability.

So what is the point of presenting the chart of doubling time? Could it have been chosen because it is just about the only representation of the data that appears to show a strongly positive trend?

The next section, headed “framework for decisions” includes a chart of the number of  COVID-19 cases in hospital. The total number of suspected and confirmed COVID-19 cases rose through March and early April to reach a plateau of around 1800 cases from about 8 April.

Suppressing the virus or suppressing hospital admissions?

Other government data – not referred to in the report (but see the chart below from the Scottish Parliament Information Centre, 29 April) – show that the number of COVID-19 registered deaths in homes and care homes is almost as large as in hospitals. In the week to Sunday 26 April, more than half of all deaths were in care homes. If these people had been in hospital, would more of them have recovered? Would they in any case have suffered less distress? And how many seriously ill COVID-19 patients are staying at home or in care homes? Is that number proportionate to the number of deaths? If so, then the number of people that it might be thought, prima facie, would benefit from hospital care could be more than double the number of patients actually in hospital.

The document says:

“The capacity of our health and care system to care for our people when any restrictions are lifted will be a factor.”

The current number of COVID-19 patients in hospital is well below the target of 3000 beds that the Scottish government says elsewhere it aims to make available for COVID-19 cases. But the number of patients that would arguably benefit from hospital treatment could now be higher than the target capacity. It seems that hospitals have been protected partly by suppressing the virus through lockdown measures, and partly by suppressing hospital admissions.

In any case, no assessment seeems to be available of where Scotland now stands in relation to the 3000-bed target, or whether NHS Scotland can be assured of a sufficient supply of PPE to actually run that number of beds. What will the Scottish Government make of these facts and guesses when factoring in the capacity of the health care system? The document doesn’t say.

It does say that in assessing the options:

“We will ask of each option, how does this impact on different groups in society – is it ethical, does it promote solidarity, does it promote equality and does it align with our legal duties to protect human rights? At all times we will ensure that the action being taken is necessary and proportionate.”

It does not prescribe any particular answer to the questions. The only prescriptive part of this statement is the requirement that action must be necessary and proportionate. But this is a judgement call, hard to formulate in an objective way and hard to challenge..

Ministers need not worry too much about the burden placed on them. The “framework for decisions” section of the document includes the statement:

“This framework for decision-making will, on its own, be insufficient to achieve our aims of controlling transmission of the virus and minimising broader health, economic and societal harm. Achievement of these aims will require unprecedented levels of support and compliance from the whole population.”

Failure will not be the fault of an inadequate framework for decision-making. It will be the fault of the whole population.

How will decisions actually be made, and by whom? The document says:

“Our Chief Medical Officer’s Advisory Group, in alignment and discussion with the advisory structures in other parts of the UK including SAGE, is advising us on the public-health impacts of the crisis and how to mitigate them.”

There is no mention of the Scottish Government Resilience Room (SGoRR), though the Summary of Response Arrangements in Scotland, published on 3 March, said:

“SGoRR has been activated to coordinate all Scottish Government activity in response to coronavirus, to ensure that Ministers are provided with daily updates, and to support the development of plans and policies.”

Health Secretary Jeane Freeman told the Scottish Parliament on 10 March that the First Minister had been chairing SGoRR meetings, but there seems to have been no further mention of it in the Parliament. What has happened to it and what part is is playing in decision-making?

The next section of the document sets out “options for easing or imposing restrictions”. It provides a little lattitude for excursions away from UK policy, saying:

On occasion, expert advice may point to different approaches reflecting the specific circumstances in each country or to different optimal timings for easing or tightening restrictions across the varying geography of the UK. On such occasions, the Scottish Government would consider the appropriate course of action to best meet Scotland’s specific needs and circumstances.

This is sensible and welcome. But you could not guess from reading it that the baseline policy that Scotland is working to has so far made the UK one of the deadliest countries in the world. It reflects neither the strength of the need for a change of policy nor the range of possibilities provided by the powers devolved to the Scottish Government.

In the middle of this section one finds the bald statement: “Our assessment is that now is not the right time to relax restrictions.”

It’s hard to dispute that this is the right assessment. But it’s a decision, not a part of a framework for decision-making. It’s odd to find it tucked coyly away on page 18 of the document’s 27 pages, repeated at neither the beginning nor the end, nor in the First Minister’s foreword.

The penultimate section of the document deals with “Controlling the Pandemic – Respond and Recover”. It is clear that it is directed towards the future. Possibly it is asssociated in planners’ minds with the “Mitigate” phase of the Four Nation plan, though that is not stated. So it is disappointing that this is the section that covers the various measures that many of us have been pressing for as urgent necessities suggested by a broad consensus of scientific opinion.

The document says that enhanced public health services will be required and that these would come in five stages:

Recognition that we do not at present understand the distribution and prevalence of the virus is welcome, as is the will to rectify the problem. But it casts a fog of doubt over the framework for decision-making that is apparently intended to precede effective disease surveillance. This situation is the outcome of a lost decade, with pandemic planning on the backburner first because of austerity and then because of Brexit. Even if that is taken for granted, the time to start an emergency programme to re-build the surveillance infrastructure was January of February, not now. But of course late is much better than never.

A move towards effective tracing of contacts would also be welcome. But its inclusion only in this part of the document means that the Scottish Government has not revised the position implied by former Chief Medical Officer Catherine Calderwood on 2 April, when she told a press briefing: “the thought that the testing in some way slows the virus or is a part of our strategy to prevent transmission is a fallacy.” Test and trace strategies were the context of the question she was responding to, though she took care to refer only to testing in her answer.

It is far from clear that under present conditions the prevalence of the virus will decline to the low level needed for a safe exit from lockdown. A further squeeze on the virus may well be needed and could be provided by contact tracing and isolation of contacts. In any case, it is surely beyond dispute that contact tracing and isolation would stop some transmission and save some lives.

The document notes that tracing requires “support from contract tracing teams”. Besides the staff employed by Health Protection Scotland, environmental protection officers employed by local authorities are also experienced in contact tracing and there are probably far more of them than there are of HPS contact tracers. There seems to be no information available on whether these officers have been asked to participate in the task, but their counterparts in England have not been asked, according to an article in the Guardian. Organisation of contact tracing teams and recruitment and training of any necessary additional staff should have begun in January or February and should in any case now be vigorously under way. It is not clear whether this is happening.

It is therefore deeply troubling that the Scottish Government appears to be emphasising digital tools over the mobilisation of a contact tracing workforce. Interviews with trained contact tracers are a well established and unproblematic technique. Basic digital tools to support that work should also be unproblematic. Smartphone apps to monitor our movements are another matter. They threaten a massive invasion of privacy and potential strengthening of state and corporate control over our lives that we can ill afford.

The actions set out under the “Respond and Recover” part of the document can’t wait. They need to be put into effect right now, on whatever scale is immediately feasible, and then scaled up as necessary.

Another exhibit in the museum of failed pandemic planning?

The short final section of the document is headed “Renew – Adjusting to a New Normal of Living with the Virus.” It is perhaps the most attractive part of the document. That is not a good sign, since it deals in rather speculative terms with a future that for the moment is barely discernible. A lot of people will find something in it to please them. It says “the austerity driven response to the 2008 financial crash did not work” and says “we must not repeat those mistakes.” It speaks of giving people the skills to respond to changes in the labour market and helping businesses transition out of the crisis.

But the virus does not respect astute politics and the dead will probably not care that the survivors are promised an opportunity to “work together to design the Scotland we want to emerge from this crisis.”

The document looks like a boilerplate job bolted together to settle nerves at a moment last week when the movers and shakers around the UK appeared to be hustling for an early end to lockdown. That moment has perhaps already passed. It remains to be seen whether the plan will continue to matter, or whether it will become just another exhibit in the museum of failed pandemic planning.

The component parts of the plan have been drafted carefully, with an eye to possible liability. It has at least revealed, rather quietly and perhaps unintentionally, how far short Scottish and UK pandemic planning has fallen, and how much lattitude the Scottish Government intends to allow itself. Those are matters that deserve our close attention.

NOTE – an earlier version of version of this article included a chart from SPICe of COVID-19 deaths by NHS board that had been wrongly labelled by SPICe. This has been replaced by a corrected version of the chart. The article stated (in line with the incorrect chart) that the number of deaths in care homes or at home was larger than in hospitals. Based on the corrected chart, 48% of total deaths occurred in care homes or at home (or other non-institutional settings). The article has been ammended to say: “the number of COVID-19 registered deaths in homes and care homes is almost as large as in hospitals. In the week to Sunday 26 April, more than half of all deaths were in care homes.”

Background

• The Scottish Government’s Coronavirus (COVID-19) framework for decision-making.
• The Clown and the Thunderer – a summary of the Sunday Times investigation into the UK’s coronavirus strategy.

Image:  © Cryptographer/Shutterstock