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

Complaints and Claims – The Care sector staffing shortages after pandemic

We have written previously about the potential for claims arising from the social care sector as a result of staffing shortages. An interesting investigation report in this weekend’s Sunday People has highlighted the growing reports of abuse and injuries to elderly vulnerable care home residents in recent months.

The article (found here) suggests that the growing reports may be due to staffing shortages. The social care sector was already understaffed prior to the double whammy of Brexit and then the Covid-19 pandemic. There is a high level of job vacancies within the social care sector at present – up to 10% in comparison to 5.9% in May 2021.

The Sunday People article quotes from work undertaken by the social care watchdog Care Campaign for the Vulnerable which has seen complaints increase by 80% since the end of lockdown restrictions earlier this year.

Rising reports of abuse and injuries

These reports of abuse and injuries may also now be arising only now due to the fact that families will not have seen their family member or friends for many months due to lockdowns and restrictions on visiting care homes. When seeing a relative or friend in a care home after a gap in visits, the extent of any decline or deterioration may not have been obvious without regular visits, and their appearance and presentation after several months (for whatever reason) will no doubt be sadly shocking to them. Whilst family members or friends may not be directly involved in caring, they certainly play an important role in monitoring and advocating for their loved one’s wellbeing.

Why claims are becoming difficult to defend

We are already seeing some civil claims and investigation instructions relating to incidents or accidents that occurred in the care homes due to lack of staffing or lack of supervision of vulnerable residents.

In addition on considering the claims we are seeing it is becoming clear that they are likely to be more difficult to defend, as carers during this period recorded insufficient detail on the steps they were taking to care for a resident – or in some cases none at all.

It was initially envisaged that there would be a significant number of Covid-19 claims from residents and/or their families but what we are now beginning to see are the complaints and claims that do not directly involve Covid-19 but they are certainly an indirect result of the pandemic.

Jennifer Johnston, Associate, BLM

jennifer.johnston@blmlaw.com

Under unprecedented pressure: The Local Government & Social Care Ombudsman’s Report on COVID and Care

The Local Government and Social Care Ombudsman (the Ombudsman) has issued a report on the impact of COVID-19 on local authorities and care providers, dealing with the significant increase in pressure on these services caused by COVID-19. The report covers the period 1 April 2020-30 November 2021, reflects on complaints made by service users and members of the public and identifies common issues arising from such complaints.

Continue reading “Under unprecedented pressure: The Local Government & Social Care Ombudsman’s Report on COVID and Care”

Easing of COVID-19 restrictions – how will this affect the social care sector? 

The Prime Minister this week announced the end to the majority of COVID restrictions in England There will no longer be any legal requirement to self isolate and the availability of free PCR and lateral flow tests will be significantly reduced. 

What will be the effect on the social care sector?

Continue reading “Easing of COVID-19 restrictions – how will this affect the social care sector? “

Difficulties in sourcing domiciliary care as No.10 hints at mandatory vaccinations u-turn

We have written recently about the difficulties being faced by both English social care providers and NHS England regarding mandatory vaccination against COVID-19.  This is a real concern in view of staff shortages in the social and health care sectors. 

At present, the issue of staff shortages in social care are extreme and anything that further impacts on the workforce is going to have a major effect.  For example we have seen recent news reports where families have had to resort to their own ways of funding care – see here.   Whilst in this instance it’s unclear why the private provider could not continue the care package, we consider such scenarios are sadly likely to become commonplace.   

We have had significant experience in handling claims that have arisen from domiciliary care usually due to issues involving carers missing appointments.

However there has been a hint today that the government may relinquish the policy of requiring mandatory vaccination against COVID-19 for health and social care staff in England, in view of the lesser severity of the Omicron variant, and in view of the unpopularity of the decision with the workforce and unions.   A decision will apparently be made by the government in the next few days. See here for further information.

It’s unclear however how those staff who have already lost their jobs due to the vaccine requirements will view any potential change in policy, and whether they would seek legal redress on this issue. 


Written by Jennifer Johnston at BLM (jennifer.johnston@blmlaw.com)

Care home visitor restrictions in wake of rising Omicron cases

Care home residents are about to once again face restrictions in the number of visitors they can have.  Only three named visitors and one essential caregiver visitor will be allowed from Wednesday 15 December.  Given that there is no official ‘lockdown’ for the rest of the country at present, these new restrictions have been criticised by charities and care trade associations, since the rest of society is free to largely socialise without restrictions.

Continue reading “Care home visitor restrictions in wake of rising Omicron cases”

Gardner v Secretary of State for Health and Social Care – Judicial Review Further Update

The public challenge brought by claimants Dr Cathy Gardner and Fay Harris in respect of the government’s COVID-19 hospital discharge policy reconvened on Friday, 22 October. The days’ submissions followed from the adjourned hearing on Tuesday, 19 October, reported here. This blog will explore the key issues addressed at the hearing, and consider the way forward for the claimants’ case.

Continue reading “Gardner v Secretary of State for Health and Social Care – Judicial Review Further Update”

Gardner v Secretary of State for Health and Social Care – Judicial Review Update   

The judicial review of the government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes, commenced yesterday with Lord Justice Bean and Mr Justice Garnham presiding. Permission for the review was granted on all grounds by Justice Linden following an appeal by the bereft claimants Dr Cathy Gardner and Fay Harris. This blog will explore the key issues addressed at the hearing yesterday.

Continue reading “Gardner v Secretary of State for Health and Social Care – Judicial Review Update   “

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.

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

Mandatory vaccinations and medical exemptions of care home workers – government u-turn or a temporary reprieve?

It has recently been reported that care home workers are able to opt-out of the mandatory COVID-19 vaccination requirement by self-certifying that they are medically exempt.

Thursday 16 September 2021 was meant to be the deadline for all carers to have received their first COVID-19 vaccination. This mandatory vaccine requirement for all care home staff has been a source of constant debate since it was announced, with growing concerns that a significant number of care homes may be forced to close and thousands of staff from an already depleted workforce risked losing their jobs if they declined to have the vaccine. The government has been lobbied by both providers and unions that care home workers had been “singled out” and the very real possibility of the doomsday scenario of a mass exodus of care home staff in England, so it perhaps does not come as a great surprise that Whitehall has taken some evasive action (perhaps with an indication as to how many staff had refused the vaccine). However, how effective will this self-certification opt out process be and is it only a temporary fix to what has become a polarising political issue.

Continue reading “Mandatory vaccinations and medical exemptions of care home workers – government u-turn or a temporary reprieve?”