Judgment in the Judicial Review into government’s care home policy

Yesterday the High Court provided its highly anticipated judgment in the matter of Gardner v Secretary of State for Health and Social Care (1), NHS Commissioning Board (NHS England) (2) and Public Health England (3).

The Claimants, Dr Cathy Gardner and Ms Fay Harris, had sought a judicial review of the Government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes. The High Court found that whilst this took place during very difficult and trying circumstances, the First and Third Defendants only (namely the Secretary of State for Health and Social Care and Public Health England) had broken the law by discharging patients from NHS facilities to care homes.

Such patients were deemed “medically fit for discharge” and did not have any of the recognised symptoms of COVID-19 at the time of discharge from hospital. However Government guidance from the start of April 2020 said no negative COVID-19 testing was required. Sadly either such patients had asymptomatic COVID-19, or were yet to show symptoms, or they caught COVID-19 once in the care home.

Of course not only residents were affected, care home staff contracted the virus also and sadly some of those staff lost their lives due to COVID-19.

Although not discussed directly or dealt with in yesterday’s judgment, PPE for care homes was also in short supply at this time on a worldwide basis with resources in the UK being redirected to the NHS, which of course exacerbated the potential for transmission of the virus within care homes.

Response from Matt Hancock

Families of loved ones who died of COVID-19 in care homes at the outset of the pandemic have been speaking to the press, and their anger is largely directed against Matt Hancock, the former secretary of state for Health and Social Care. In March 2020 Mr Hancock had talked about throwing a “protective ring” around care homes, but in fact it seems that protective ring was focused towards the NHS, prompted perhaps by reports and footage of Italian health services being overwhelmed in February 2020.

Mr Hancock released a statement yesterday expressing sympathy to the families and saying he was reliant on advice from the now defunct Public Health England who did not highlight the role of asymptomatic transmission of COVID-19. This approach was echoed by the Prime Minister at Prime Minister’s Questions this week who said the government was not aware the virus could be transmitted asymptotically at the outset of the pandemic. However the judgment reveals that asymptomatic transmission was certainly being discussed at this time by the government’s medical advisors – for example Sir Patrick Vallance made public comments regarding this as early as 13 March 2020, and asymptomatic transmission of similar Coronaviruses is generally recognised amongst the medical community.

The claimants were not wholly successful in their action – their claims that there was a breach of Article 2 of the ECHR (Right to Life) and Article 8 (Right to respect for family and private life) were not successful.

Our Conclusion

We do anticipate that this judgment and the ensuing publicity is likely to encourage civil claims against the Government. In addition, private providers may also face further claims. Care homes of course were not mandated to take in patients being discharged from hospital, although they were put under severe pressure to do so by the Government.

Some homes did refuse to take patients and closed their doors in March 2020. Those homes that did take in discharged patients could be open to scrutiny and claims from families who now realise that their family member may have contracted COVID-19 as a result of this policy. However, in the absence of specific knowledge to the contrary, it seems unlikely that the Court will deem care providers negligent if they have followed Government guidance.

This article was authored by BLM associate Jennifer Johnston

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