THE UK HIGH Court has ruled that Government policies discharging patients from hospital to care homes at the outset of the Covid-19 pandemic were “unlawful”.
The case was brought by two women whose fathers died from Covid-19 and who said the government failed to protect care home residents during the pandemic.
Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, took High Court action against Health Secretary Sajid Javid, NHS England and Public Health England.
They asked two judges to make declarations that unlawful decisions were made.
In a ruling this morning, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.
They said that, despite there being “growing awareness” of the risk of asymptomatic transmission throughout March 2020, there was no evidence that then-Health Secretary Matt Hancock addressed the issue of the risk to care home residents of such transmission.
The judges said in their ruling: “In our judgment, this was not a binary question, a choice between on the one hand doing nothing at all, and on the other hand requiring all newly admitted residents to be quarantined.
“The document could, for example, have said that where an asymptomatic patient, other than one who has tested negative, is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days.
“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required.
The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.
The judges said these issues were not addressed until a further document in mid-April 2020.
They concluded: “The common law claim succeeds against the Secretary of State and Public Health England in respect of both the 17 March and 2 April 2020 documents to this extent: the policy set out in each document was irrational in failing to advise that where an asymptomatic patient, other than one who had tested negative, was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.”
The judges rejected other claims by the women made under human rights legislation, and against NHS England.
Gardner, aged in her 60s and from Sidmouth, Devon, said her father had died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.
A barrister representing the two women told the court at a hearing in March that between March and June 2020 more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.
Jason Coppel QC said the fathers of Gardner and Harris were part of that “toll”.
“The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,” said Coppel in a written case outline.
“The Government’s failure to protect it, and positive steps taken by the Government which introduced Covid-19 infection into care homes, represent one of the most egregious and devastating policy failures in the modern era.”
Coppel told judges: “That death toll should not and need not have happened.”
He added: “Put together, the various policies were a recipe for disaster and disaster is what happened.”
Coppel said other countries, particularly in the Far East, had shown the way to safeguard residents by stopping the virus getting into care homes.
Sir James Eadie QC, who represented Javid and Public Health England, said the women’s claim should be dismissed.
“This is a judicial review challenge to six specific policies made in the early stage of the pandemic,” he told judges.
“As the evidence demonstrates, the defendants worked (and continue to work) tirelessly to seek to protect the public from the threat to life and health posed by the most serious pandemic in living memory, and specifically sought to safeguard care homes and their residents.”
He added: “The lawfulness of the decisions under challenge must be assessed in the context of the unprecedented challenge faced by the Government and the NHS at that time, in particular March and April 2020.”
Eleanor Grey QC, who represented NHS England, also argued that the claim should be dismissed.
A Government spokeswoman had said during the hearing, in a statement outside court: “Every death is a tragedy and we worked tirelessly to protect the public from the threat to life and health posed by the pandemic and specifically sought to safeguard care homes and their residents.
“We have provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents now vaccinated.”
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