Covid care home discharge policy was unlawful, says court

High court judgment deals blow to claim government threw ‘protective ring’ around vulnerable residents in England

The government’s policy towards care homes in England at the start of the Covid pandemic has been ruled illegal, in a significant blow to ministers’ claim to have thrown a “protective ring” around the vulnerable residents.

The high court said the policy not to isolate people discharged from hospitals to care homes in the first weeks of the pandemic in spring 2020 without testing was “irrational”.

Dr Cathy Gardner, one of two grieving daughters who brought the case after their fathers died from Covid in care homes in April and May 2020, called on Boris Johnson to resign after the landmark ruling, saying the illegal care homes policy was just one of several failures in the management of the pandemic.

“The prime minister must take responsibility for everything that happened during those months which he obviously approved of,” she said.

She also called on the former health secretary Matt Hancock to consider whether he misled parliament over protection of care homes and described his “protective ring” claim as “a despicable lie of which he ought to be ashamed and for which he ought to apologise”.

Hancock had said that “right from the start we have tried to throw a protective ring around our care homes”, but government guidance issued on 2 April 2020 as ministers rushed to free up 25,000 hospital beds amid fears the NHS could be overwhelmed confirmed that “negative tests are not required prior to transfers/admissions into the care home”.

Gardner’s father, Michael Gibson, died aged 88 in Oxfordshire on 3 April 2020 after a Covid outbreak at his care home. More than a quarter of all deaths among care home residents in March and April 2020 involved Covid-19 – more than 12,500 people.

The ruling comes ahead of the statutory public inquiry into the Covid pandemic and a key part of its investigation will be “the management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes”, according to draft terms of reference.

Lawyers for Gardner, 60, and Fay Harris, 58, had argued in a judicial review the government policy did the “very opposite” of Hancock’s “protective ring” claim.

The discharge policy was only changed on 15 April 2020 to require testing for discharges and 14-day isolation for new admissions from the community. The ruling said there was no evidence Hancock considered, or was asked to consider, the need for isolation of discharges into care homes in March 2020, and so it was “not an example of a political judgment”. Neither had any expert committees advised on the matter.

A spokesperson for Hancock said the ruling “finds Mr Hancock acted reasonably on all counts”. “The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission,” they said. “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.”

Speaking outside the Royal Courts of Justice in London on Wednesday, Gardner said: “I believed all along that my father and other residents of care homes were neglected and let down by the government. The high court has now vindicated that belief, and our campaign to expose the truth.”

Harris, whose father, Don Harris, died aged 89 in Hampshire on 1 May 2020, added: “I have lost precious years with my wonderful dad,” she said, adding: “He should have been safe and protected.”

She said government actions “exposed many vulnerable people to a greater risk of death – and many thousands did die”. “It has only increased the distress to me and many others that the government have not been honest and owned up to their mistakes,” she said.

After an almost 22-month crowdfunded legal challenge to the legality of policies advanced by the health secretary, Public Health England and NHS England, the verdict was handed down by Lord Justice Bean and Mr Justice Garnham.

They said: “The decisions of the secretary of state for health and social care to make and maintain a series of policies contained in documents issued on 17 and 19 March and 2 April 2020 were unlawful because the drafters of those documents failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission.”

During proceedings government lawyers denied any policy failure and told the court that scientists did not advise of “firm evidence” of asymptomatic transmission until mid-April 2020. They said fears of hospitals becoming overwhelmed were “far from being theoretical” and ministers had to balance competing harms amid enormous challenges.

But the judges said the risk of asymptomatic transmission had been highlighted by people including Sir Patrick Vallance, the government’s chief scientific adviser, in a radio interview as early as 13 March 2020.

The judges said the discharge and admissions policies in March and April 2020 were “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 court dismissed the other aspects of the case and a claim against NHS England.

The ruling was welcomed by the Relatives and Residents Association as confirmation of what “people living in care and their families have known all along – the protective ring was non-existent”.

The organisation’s director, Helen Wildbore, said it was “a first step to justice”.

Lawyers said the ruling increased the chances of the government facing compensation claims from families and care operators. Michelle Penn, partner and head of care and occupational disease claims at law firm BLM, said: “Should any care home operators themselves face personal injury claims during this period, it’s likely they will seek contribution from the government to cover these costs.

She said they might also seek recovery from the state for any alleged forced closures or other losses “as a consequence of the government’s flawed and unlawful policies”.

“It means the government is now staring down the barrel of potentially very costly claims due to Dr Gardner’s win.”

The Department of Health and Social Care, said: “We specifically sought to safeguard care home residents based on the best information at the time.

“The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.

“The court recognised we did all we could to increase testing capacity. We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation.”


Robert Booth Social affairs correspondent

The GuardianTramp

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