Judicial review of Government response to COVID in care homes: imminent hearing in England & significant developments in Scotland

Last November we reported on Mr Justice Linden’s decision to grant permission for judicial review on all grounds of the UK government’s policies and measures which had a bearing on the protection of care homes during the COVID-19 pandemic. The claim, which relates to patient discharge policy in England, will be heard later this month. In respect of Scotland, recently released information by public health authorities appears to acknowledge some important difficulties there in the early part of last year. This blog explores the key issues in both jurisdictions and sets the scene for the (English) judicial review later this month.

The crowdfunded legal challenge brought by Dr Cathy Gardener and Fay Harris is against The Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England. The legal challenge focuses on the early stages of the pandemic, specifically between March and June 2020 and highlighted the tens of thousands of COVID-19 related deaths of care home residents. The full hearing is listed between 19 and 22 October 2021 and will consider the Government’s policy related to the discharge of COVID-19 patients into care homes.

In the wake of the decision to allow this legal challenge, data has now come to light from Scotland which appears to support the argument that high levels of untested hospital patients were released into care homes, making already-vulnerable residents more likely to be exposed to the virus.

Perhaps most staggering to date is the BBC report about data obtained by Public Health Scotland (PHS) that nearly 200 Scottish care homes took in elderly hospital patients, more than half of whom had not been tested for COVID, between March and May 2020. It was not until April 2020 that the UK Government took precautionary measures in respect of the release of COVID patients into care homes, but for the claimants’ fathers who tragically died of the virus whilst resident in care homes, this was too little, too late.

Following release of this data, Mr Aamer Anwar, a Scottish solicitor acting on behalf of members of COVID-19 Bereaved Families for Justice, told BBC Scotland that “elderly patients were discharged without any regard for a duty of care owed to them, or to residents and care home staff.” In contrast, Sir James Eadie QC and Eleanor Grey QC submitted (in response to Dr Gardener’s application) on behalf of the defendants that there had been no such breach and the (UK) Government had done all it could have at the time.

The claimants’ have highlighted in their submissions the Government’s refusal to acknowledge any errors in judgement, which will now be subject to even closer scrutiny, given the First Minister Nicola Sturgeon’s response to the data was to admit the government’s early approach to COVID in care homes was a “mistake.”

This evidence indicates that in Scotland, care home residents were put at an enhanced risk of being exposed to COVID by the release of untested hospital patients into care homes. This data will be key not only to the pending Scottish COVID-19 Public Inquiry but also potentially relevant to the upcoming Judicial Review and UK Inquiry. It is the claimants’ case that NHS England’s hospital discharge policy did not sufficiently safeguard against the risks to care home residents and whilst this data is not conclusive evidence that the release of patients resulted in outbreaks in care homes, it certainly appears to indicate a correlation between the two. This is further supported by a recent PHS report, which concluded it could not rule out a link between the discharge of untested patients from hospital to care homes and the outbreak of COVID cases in the homes.

At the hearing on 19 October, the court will consider whether the defendants’ measures and policies in respect of care homes in the pandemic were unlawful and constituted breaches of Articles 2, 8 and 14  of the European Convention on Human Rights and the Human Rights Act 1998. They will further consider whether decisions to allow covid patients into care homes had a discriminatory effect on care home residents such as the claimants’ fathers who were elderly and disabled, contrary to the Equality Act 2010. In their published skeleton argument, the claimants specifically highlight the contravention of the Article 2 ECHR right to life and label the Government’s failures to protect care homes “the most egregious and devastating policy failures in the modern era”. They invite the court to grant declaratory relief on the basis of these breaches.

The Court of Appeal has now rejected the claimant’s appeal to have the first and third defendant disclose the advice and other materials they relied upon when making each policy relevant to COVID and care homes. This will come as a blow to the claimants’ domestic public law claims which will also be considered at the hearing, however it is clear from their skeleton arguments the claimants still consider there to be sufficient grounds to establish breaches of duty, for example in respect of transparency.

Though Mr Justice Linden rejected the defendants’ submissions that the claimants’ legal challenge was an attempt to pre-empt a public inquiry, it is clear the court’s decision at the judicial review and this recent evidence from Scotland will set the backdrop for the UK Inquiry into the government’s response to the COVID-19 pandemic, set to be launched in Spring 2022.

It remains to be seen whether these claims will open the floodgates for other individual or group action claims pursued not just against these defendants, but against other care providers. It would however seem wise for providers and their insurers to consider the impact of these decisions and how they can mitigate against the risk of claims in the future.

Written by Beth Albuery, Trainee Solicitor at BLM (beth.albuery@blmlaw.com)

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