The Government's care home policy in England at the start of the pandemic was illegal, a court has found. Two grieving daughters whose fathers died from Covid-19 have won a High Court challenge against the Government over its handling of patients who were discharged from hospital to care homes at the start of the pandemic.
Cathy Gardner, whose father Michael Gibson died in Oxfordshire on April 3 2020, and Fay Harris, whose father Donald in Hampshire on May 1 2020, partially succeeded in their claims against the Health Secretary and Public Health England. The outcome undermines claims from the Department of Health that they had thrown a 'protective ring' around vulnerable residents.
In Greater Manchester, by May 2020, around half of care homes in Greater Manchester had suffered outbreaks, with more than 4,000 coronavirus-related deaths up to that point, according to the Care Quality Commission. The resulting devastation came amid heartbreaking testimonies from care home staff who told of lack of testing, PPE, of agency staff moving between homes and, crucially, of patients being moved from hospitals into care homes without testing. Manchester City Council have said they had a policy throughout to test all such patients before they were moved into care.
In the preceding months, the Government had been urgently freeing up hospital beds, discharging 25,000 hospital patients into care homes. Guidance issued on April 2 2020 cited negative tests were not required before transfers.
During the court hearing, Government lawyers had denied policy failure on the grounds that scientists hadn't advised of 'firm evidence' of asymptomatic transmission until Mid-April 2020. They said ministers had to balance 'competing harms' amid fears of hospitals becoming overwhelmed.
But 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 in England of such transmission.
The judges said these issues were not addressed until a further document in mid-April 2020.
They concluded: “The common law claim succeeds against the Secretary of State and Public Health England in respect of both the 17 March and 2 April 2020 documents to this extent: the policy set out in each document was irrational in failing to advise that where an asymptomatic patient, other than one who had tested negative, was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.”
The judges rejected other claims made under human rights legislation, and against NHS England.
Fay Harris, who brought the case with Dr Cathy Gardner said: “I am very pleased with the judgment today. It brings some comfort to know that the Government have been shown to act unlawfully.
“Their actions exposed many vulnerable people to a greater risk of death – and many thousands did die. It has only increased the distress to me and many others that the Government have not been honest and owned up to their mistakes.
“I have lost precious years with my wonderful dad. I left him fit, well and happy on the 22nd March 2020 when his home went into lockdown. He should have been safe and protected, but I never saw or spoke to him again.
"Many people died of Covid in his care home. I hope this judgment will help the thousands of other families who have lost parents due to this Government’s reckless and unlawful policies.”
Dr Cathy Gardner said in a statement after the ruling: “My father, along with tens of thousands of other elderly and vulnerable people, tragically died in care homes in the first wave of the Covid-19 pandemic. I believed all along that my father and other residents of care homes were neglected and let down by the Government.
"The High Court has now vindicated that belief, and our campaign to expose the truth. It is also now clear that Matt Hancock’s claim that the Government threw a protective ring around care homes in the first wave of the pandemic was nothing more than a despicable lie of which he ought to be ashamed and for which he ought to apologise.”
A barrister representing the two women told the court at a hearing in March that between March and June 2020 more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.
Jason Coppel QC added: “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.”
Helen Wildbore, director of the Relatives and Residents Association, told the PA news agency: “This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent. Older people were abandoned at the outset of the pandemic, let down by the very systems designed to protect their rights.
“The ruling is very welcome as a first step to justice but bereaved families will be left asking why more wasn’t done to protect their loved ones and how many lives could have been saved.”
The Manchester Evening News has asked the Department for Health and Social Care for comment.
