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Government legal threat over 2016 flu report and findings

An NHS doctor is taking a legal case against the Government seeking the publication of the findings of the flu-pandemic exercise code-named 'Exercise Cygnus' which took place in 2016.

Posted on 26 April 2020

Dr Moosa Qureshi is asking the Government to publish the report and findings of Exercise Cygnus to clarify its response to the Covid-19 pandemic and help inform its response going forward.

Dr Qureshi, who is a doctor and campaigner with 54000doctors.org is represented by Leigh Day solicitors who have sent an urgent Pre Action Protocol letter to the Secretary of State for Health and Social Care requesting a response by 4pm on Monday, 27 April, 2020.

If the Secretary of State fails to disclose the findings of the Exercise Cygnus and does not provide adequate reasons for the refusal, Dr Qureshi will seek an urgent Judicial Review, challenging that refusal and seeking its publication.

Exercise Cygnus took place in October 2016 as a simulation exercise to test the NHS’ preparedness for coping with a flu pandemic. The shortcomings it apparently revealed have been reported in the national press to be ‘too terrifying’ to be made public.

Read more about Dr Qureshi's legal case on crowdfunding site crowdjustice.com

Despite making several references to lessons learned from Exercise Cygnus, the Government has steadfastly refused to make the findings public in the weeks since Covid-19 enforced a national lockdown.

A Freedom of Information request to see the report made by someone else has already been refused under Section 35 (1)(a) of the Freedom of Information Act on the grounds that ‘the release of this information would prohibitively impact the ability of Ministers to meet with officials and external stakeholders to discuss ongoing policy development’.

Now Dr Qureshi is calling for the publication of the findings under the Health Secretary’s power under s.2A of the National Health Services Act 2006 and Article 10 and s.6 of the Human Rights Act 1998, which it is argued provide mechanisms for the provision of information separately to the Freedom of Information Act.

The Government previously argued that the findings should not be published to avoid public fear that might be caused by it. Dr Qureshi argues that there is exceptionally strong public interest in the publication of the report given the lessons and recommendations are directly relevant to the system and procedures that have been developed, and are presently being developed.

He further argues that any public fear about the content of any findings ‘has plainly evaporated now that the country and the world is experiencing a deadly pandemic, everyone in the country are confined to their homes by law and the National Health service is on a war footing ’.

Dr Qureshi points to the fact that the Government has repeatedly and expressly relied on the existence of the exercise and content of reports from the Cygnus exercise in defending its response to, and preparedness for, Covid-19. Former Government advisors who have seen the findings have also made reference to it in public, yet contents of any report from the exercise have still been kept from the public.

Dr Qureshi said: “I am a frontline NHS doctor and I specialise in blood disorders. I provide care for patients with leukaemia who have done particularly badly when infected with Covid-19. I have also used a retrovirus during my PhD research into leukaemia.

"Managing a viral pandemic is completely different from fighting against acts of aggression by military or terrorist organisations. “There is no persuasive argument for secrecy when managing a healthcare crisis. Successful science and healthcare provision depend on transparency, peer review, collaboration and engagement with the public.

"I believe that if the Government had followed the Cygnus Exercise by engaging transparently with health and social care partners, with industry and with the public, then many of the deaths of my heroic healthcare colleagues and the wider public during the Covid-19 pandemic could have been avoided. For this reason, I strongly believe that we need to see transparency throughout the entire process of preparation and delivery of care during this pandemic, including the social care sector and NHS Nightingale Hospitals.

“It is important to bear in mind that Covid-19 represents a progression in a series of viral pandemics during the last ten years, and there remains the possibility of future pandemics with novel viruses. Full disclosure of the Cygnus Report is essential because it can inform not only the management of this crisis and its aftermath, but also help us plan for future influenza pandemics.”

Leigh Day solicitor Tessa Gregory said: “Our client believes that the NHS workforce and the wider public has a right to know what Exercise Cygnus made clear to the Department of Health and Social Care about what needed to be done to keep NHS staff and the public safe in a pandemic.

"The exercise was carried out precisely in order to anticipate the kind of situation we now find ourselves in. It beggars belief that the information the exercise revealed is now being kept hidden when a public debate about its contents may well inform important decisions about how to best protect lives going forward.”

Dr Qureshi is represented by Carolin Ott and Tessa Gregory from Leigh Day solicitors and Jason Pobjoy and Tom Hickman QC from Blackstone Chambers.