The care sector, Covid-19 and claims: is litigation unavoidable?

Many of you will have seen the reports of the crowdfunded claim being brought by Dr Cathy Gardner against the UK government in relation to their response to the Covid-19 pandemic. Dr Gardner has sought judicial review of government policy relating to the decision to discharge Covid-19 positive patients to care homes when those already resident in the care homes were vulnerable. She wishes to obtain an explanation of what policies were put in place to ensure a ‘protective ring’ was placed around care homes but as at the time of preparing this article, Dr Gardner is of the view that the response from the government is insufficient.

So far she raised just under £90,000 in crowdfunding and together with a second claimant, Fay Harris, they have issued court proceedings against The Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England in relation to the care provided to their fathers who died of Covid-19 in April and May 2020. Dr Gardner has published the lodged grounds of the claim in full.

The claim is brought as alleged breaches of Articles 2,3,8 and/or 14 of the European Convention on Human Rights and the Human Rights Act 1998. It is also claimed that both Dr Gardner and Ms Harris’s fathers were discriminated against contrary to the Equality Act 2010 as they were elderly and disabled. They allege the defendants failed to discharge their obligations under the above Articles to, amongst other assertions, protect the lives and well-being of vulnerable care home residents and that there were systems and operational duties of the defendants which were breached. They seek declaratory relief that the defendant’s Article 2 duties have been breached and continue to be breached.

The grounds allude to the defendants pre-action challenges to the claim which include:-

  • Limitation  – that the claims have been brought outside of the relevant limitation period; and
  • The legal standing of the claimants and whether they are “victims” under the Human Rights Act.

The claimants seek appropriate declaratory relief and such other relief as the court considers appropriate. They consider that such just satisfaction is most appropriately addressed once the Court has made findings on breach of duty.

The claim is denied by the defendants.

On her crowdfunding page, Dr Gardner has stated that a decision on whether the claim is to be subject to a full trial will be made at a virtual hearing on 19 November 2020. She states the hearing will determine if there is an arguable case. Due to the way in which judicial review proceedings progress it is likely to be a hearing on whether the claimants should be granted permission to apply for judicial review.

Very recently the Equality and Human Rights Commission has passed comment about the case stating that “we are concerned about potential breaches of older people’s human rights during the pandemic. The tragic death of Dr Gardner’s father and subsequent legal challenge raises important issues of public interest and we are prepared to assist the Court should the judicial review be granted”.

We will have to see if the Court takes the view that there are sufficient grounds for judicial review to list the case for a full hearing. If it does it is unlikely full hearing would take place this year.

In October 2020 Amnesty International produced a report entitled “As if Expendable” which reviewed the UK Government’s response to the Covid-19 pandemic and the effect on the care sector and its residents. In Amnesty International’s view the UK government’s response to the pandemic “violated the human rights of older people in care homes in England”… and that … “no effort be spared to establish the factors that resulted in such disproportionate impact on older people in care homes”…. “those responsible for negligent decisions must be held to account”. They call for an independent inquiry and that this should be undertaken “urgently” and completed preferably by the end of November 2020. They say this would enable the inquiry’s findings and recommendations to inform the management of care homes as the pandemic continues. A concluded independent inquiry within that time frame seems ambitious.

In July 2020 Prime Minister Boris Johnson committed to an independent inquiry into the response to the pandemic but said that it was not the right time for an investigation but there would be one in the future so lessons could be learned. With the terminology used in the Amnesty International report suggesting that those who are responsible for negligent decisions should be held to account, as there is no guarantee of a quickly commissioned independent inquiry this raises the prospect of claims being brought similar to Dr Gardner’s by bereaved and frustrated relatives of care home residents who contracted Covid-19.

If the claims are brought in the same form as Dr Gardner’s case then in order to avoid the potential argument of the claim being statute barred, they will need to be commenced quickly. It is probable that if breaches of the Human Rights Act are claimed then those claims will be made before the end of March 2021. Care providers and their insurers should be live to the fact that such claims could be commenced within the next five months.

It may well be that the initial raft of litigation is directed at the government and their decision making over discharge of Covid-19 positive hospital patients into care homes but the risk is that private care providers will be brought into these claims if they were accepting these patients from hospitals and carrying out the systems which are alleged to have been in breach of the Human Rights Act.

Working in a care home during the first wave of the pandemic was no doubt extremely stressful and upsetting for the staff; not only in their wish to provide reasonable care to the residents and protect those residents from harm but also in preventing themselves from contracting Covid-19. To then have their actions challenged will likely add further stress to an already stretched workforce.

In recent days, following a leak of information, formal plans have been announced to discharge COVID-19 positive patients into care homes, with it initially being thought that there would be little to no assessment of such care homes being safe to take infected patients. That leaked documentation has now been formally published by the government. If a care home were to accept a COVID-19 positive patient and it subsequently be determined that this caused the infection of another the systems, staff, training and equipment would likely be placed under scrutiny. To help negate the risk of criticism the Care Quality Commission are to assess whether the care home is suitable before the hospital patient is discharged to a care home. It is planned that there will be designated care homes where Covid-19 positive patients will be discharged to.

Clear documentation of decision making processes and the care provided will be needed to assist with any challenge to a claim of that nature should it be made.

There will no doubt be difficult questions for care providers and their insurers on whether the policies of insurance that they hold cover such claims and pursuant to which policy a response would fall to be provided.

Whilst litigation against care home providers may be unavoidable, to reduce the risk of being caught up in litigation should family members of residents feel that their loved ones have been unnecessarily exposed to COVID-19  the private care sector needs to tread carefully in the coming months as the second wave of COVID-19 infections appears to be increasing. Careful planning and documentation of decision making will be of benefit should questions be asked through a claim in the future.  

An update on the outcome of Dr Gardner’s hearing on 19 November 2020 will be provided once known.


chris.dexter@blmlaw.com

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