Discharging patients to care homes at start of pandemic was 'unlawful'

Government policy on discharging patients from hospitals to care homes at start of Covid pandemic was ‘unlawful’, High Court judges rule

  • Lord Justice Bean and Mr Justice Garnham read out ruling in London Wednesday
  • It said the government policy ‘failed to take into account the risk to the elderly’
  • A case was brought by two women whose fathers had died from Covid-19

Two women whose fathers died from Covid-19 have won a High Court challenge against the Government over policies on discharging patients to care homes at the outset of the pandemic.

Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, partially succeeded in their claims against Health Secretary and Public Health England.

In a ruling on Wednesday, 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 GMB union said the Government had shown ‘callous disregard’ for care homes following the ruling. 

Rachel Harrison, GMB national officer for care, said: ‘Today’s judgment is a terrible reminder of callous disregard this Government has shown for care home residents and workers.

Dr Cathy Gardner (right) took the Government to the High Court after her father Michael Gibson (left), 88, died ‘Covid probable’ at the Cherwood House Care Centre in Oxfordshire on April 3, 2020

‘Transferring untested hospital outpatients into enclosed facilities where carers were denied access to proper PPE and even sick pay was always going to have tragic consequences.

‘GMB members nursed much-loved residents as they died from this awful virus, while all the while worrying about their own safety and how they were going to pay the bills.

‘If any good is to come out of this pandemic then it must include urgent reform of the sector.’

Lawyers representing Mr Javid, NHS England and Public Health England were fighting the claim.

Dr Gardner, who has an academic qualification, is in her 60s and from Sidmouth, Devon.

She 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 Lord Justice Bean and Mr Justice Garnham that between March and June 2020 – when Matt Hancock was Health Secretary – 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 Dr Gardner and Ms 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 Mr 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.’

Mr 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.’

Mr 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 Mr Javid and Public Health England, had argued that 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.’

Judges agreed the government’s policies failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of Covid. (stock image)

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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