NICOLA Sturgeon refused to say if the Scottish Government broke the law by discharging untested patients from hospitals to care homes at the start of the Covid pandemic.

On Wednesday, the High Court in London ruled that ministers in the UK government had acted illegally by transferring elderly people into residential care in England without taking into account the danger from the asymptomatic transmission of the virus.

That was despite senior figures, including the UK Government’s chief scientific adviser for England, Sir Patrick Vallance, saying very early on, that it was quite likely Covid could be caught from someone without symptoms.

During First Minister’s Questions, Labour leader Anas Sarwar said the Scottish Government’s policy was “almost identical” to that south of the border. 

He asked Ms Sturgeon if she accepted decisions made by the Scottish Government were “unlawful, unreasonable, irrational and cost lives”.

The First Minister replied: “No, I don’t accept that, although these are matters now, rightly and properly, that will be scrutinised by the public inquiry that is under way in Scotland and, of course, the parallel public inquiry that will take place into these matters UK-wide.”

She told Mr Sarwar that the guidance issued in Scotland was “broadly similar” to that in place in England, but was not “identical”.

The Scottish Labour called that an “extraordinary and unthinkable answer”.

He said that as early as February 4, the Scottish Government’s advisers were suggesting that asymptomatic transmission was a possibility. Yet, even by March 26 the guidance still said people being discharged from the hospital did not routinely need confirmation of a negative Covid test.

The Scottish Government changed their guidelines on testing on April 21, after nearly 3,000 untested people and 75 known positive cases had already been transferred into Scotland’s care homes.

Mr Sarwar asked the First Minister if she accepted, "in the words of the families affected and impacted, that this was a shameful, unforgiveable, criminal act that cost lives in Scotland?”

Ms Sturgeon reiterated that the guidance on care homes in Scotland was only “broadly similar” to England.

She pointed to analysis of discharges carried out by Public Health Scotland, which said there "was no clear statistical evidence that hospital discharges were associated with care home outbreaks."

"Instead, it was care home size that was more strongly related to outbreaks. That is the analysis that has been done so far, but it is right that we have full analysis and scrutiny by the independent public inquiry, whose work is now getting under way," she said.

The First Minister told MSPs that the consequences of the pandemic were “embedded in my soul”, adding: “That does not mean my decisions and my actions and those of my Government should in any way not be subject to scrutiny.”

Earlier, Deputy First Minister, John Swinney, told Holyrood’s Covid-19 Recovery Committee that the Scottish Government will “consider carefully” the High Court ruling.

Mr Swinney said that Lady Poole’s Scottish Covid inquiry would examine the topic, and expressed “deep regret and sympathy” to everyone who had lost a loved one in a care home.

He said the judgment reflected circumstances in England and was “not directly comparable to the situation in Scotland”, but added: “We will, of course, consider carefully the issues that are raised by the judgment and beyond what I’ve said already, that will be the subject of further consideration.”

The remit of Lady Poole’s independent Scottish inquiry examining the strategic response to the pandemic in Scotland has an “explicit provision” to examine care homes, he said.

In a statement on behalf of the Bereaved Scottish families, Mr Anwar said they partly were considering legal action over fears Lady Poole, might not fully investigate care home deaths. 

He said the families had “felt rushed and felt a lack of empathy” when they met the judge in January.

“In over three months the families feel that very little has happened in Scotland and this is deeply disappointing, whilst it appears that the UK inquiry is moving apace.

“This is not what the relatives campaigned for, nor was it what they were promised by the Scottish Government and Deputy First Minister John Swinney.

“There now appears to be an attempt to avoid scrutiny of this issue and thus avoid responsibility, following today’s High Court decision, that cannot be allowed to happen in Scotland. We will be considering in Scotland what further legal action can be taken against those responsible for the preventable deaths that took place in care homes.”

A spokesperson for Lady Poole’s inquiry said the main focus since her appointment last December had been “to get the right people and systems in place to support its work”.