DGC also form part of the Dumfries and Galloway Health and Social Care Partnership which runs the asymptomatic testing programme in Dumfries & Galloway, using the same tests referred to in the notice.

DGC executives previously ignored information alerting them that the Innova Rapid Antigen SARS-CoV-2 test – more commonly known as the lateral flow test – had been issued with a Class 1 Recall by the FDA in the USA, meaning that the test is both defective and potentially dangerous to health, and continued to use the test despite full knowledge of that fact. 

The lawyer’s letter quoted the manufacturer’s instructions, which state that neither a positive PCR nor lateral flow test are sufficient to diagnose infection status, and the legal force of the warning leaves the Council in a precarious position when it comes to future testing and self-isolation orders coming from positive test results, potentially forcing entire classrooms of children in D&G’s schools to self-isolate. 

The letter goes on to list the crimes council employees will have committed in full knowledge that the tests are being used beyond their capabilities, on a fraudulent basis and in contravention of the manufacturer’s instructions, including: FRAUD, MISFEASANCE, MISCONDUCT IN PUBLIC OFFICE, CHILD MALTREATMENT (as defined by the WHO) and CHILD ABUSE (as defined by the NSPCC).

Following the FDA’s Class 1 recall, the Innova lateral flow test was given the all-clear by the Medicines and Healthcare Products Regulatory Agency (MHRA), purportedly after the MHRA’s “thorough review” of a risk assessment carried out by the Department of Health and Social Care (DHSC). However, over a period of several months now, DoD has attempted via FOI request to obtain both MHRA’s “thorough review” and DHSC’s risk assessment which are alleged to have been carried out; neither the MHRA nor the DHSC have thus far been forthcoming with their respective information.

Whilst the DHSC has stated a willingness to provide its risk assessment – albeit with considerable hesitation – the MHRA has refused to give out its “thorough review” – the official reasoning upon internal review being that “section 237 of the Enterprise Act 2002 prohibits a public authority from releasing information which came to it in connection with the exercise of its functions, and which relates to the affairs of an individual or business.” Although it is correct to state that the DHSC is a registered business, the MHRA is Executive Agency of the DHSC and they are thereby closely connected; DoD believes the attempt to treat DHSC as a separate business entity is a disingenuous attempt at avoidance.

DoD has lodged a complaint with the Information Commissioner’s Office (ICO) stating the above case, and that both MHRA and DHSC are publicly-funded public bodies and therefore ought to provide such information if requested – not least because the assessment, and the subsequent review of that assessment, were instrumental in instructing public policy on Covid testing. 

DoD will update with the ICO’s decision, once received.

Oliver Mundell, MSP for Dumfries & Galloway, commented: “I am happy to raise with the council… but it is really for them to comment.” 

DoD awaits a response from D&G MP Alister Jack and will grant a right-of-reply to Dumfries & Galloway Council; we will provide an update if and when received.

In the meantime, DOD will continue to closely monitor the council’s reaction to the legal warning they have been served and whether this has any effect on their Covid-testing policy. Clearly, should DGC continue to misuse Covid testing in the manner of which they have been guilty until now – including traumatising children by the class-load on fraudulent pretences by the continued use of a defective test beyond its capabilities – the local authority could potentially leave their staff open to charges of the above-listed crimes.