The Government has responded to a High Court ruling that its policies on discharging hospital patients into care homes at the start of the Covid-19 coronavirus pandemic were “unlawful”. The ruling undermines claims that a “protective ring” was put in place for the most vulnerable.
Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, both from Covid-19, partially succeeded in their claims against the then health secretary and Public Health England.
When the pandemic hit in early 2020, hospital patients were discharged into care homes without testing, despite growing awareness of the risk of asymptomatic transmission, with Government documents showing there was no requirement for this until mid-April.
Bereaved families and care groups said the ruling proves the “protective ring” then health secretary Matt Hancock said had been put around care homes was “non-existent” and residents were “abandoned”. A spokesman for Mr Hancock said Public Health England (PHE) had failed to tell ministers what they knew about asymptomatic transmission and he wished it had been brought to his attention sooner.
A Government spokesman said: “Our thoughts are with all those who lost loved ones during the pandemic. Throughout the pandemic, our aim has been to protect the public from the threat to life and health posed by Covid-19 and we specifically sought to safeguard care home residents based on the best information at the time.
“This was a wide ranging claim and the vast majority of the judgment found in the Government’s favour. The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.
“The court recognised we did all we could to increase testing capacity. We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation and will respond in more detail in due course.”
Downing Street acknowledged that further legal claims could follow over the Government’s handling of the Covid-19 pandemic. The Prime Minister’s official spokesman said: “That would be entirely a matter for those families and not one for us.”
Asked whether there could be a mass compensation payout, the spokesman added: “I’m not going to get into speculating on what further action people may or may not take.
“The Department of Health is considering the judgment carefully… the court itself recognised the difficult and unique circumstances the Government faced in the early part of the pandemic. The Prime Minister talked about the lack of evidence on asymptomatic transmission at the time, or certainly the uncertainty around it during that period, balanced against the need to act quickly.”
Asked whether Boris Johnson would still say he got all the big calls right during the pandemic, the spokesman said: “At all times we sought to act informed by the evidence that we had, clinical or otherwise, and the capabilities that we had available at the time. What we have seen throughout this pandemic is that we have acted to get that balance between saving lives and livelihoods.”
Boris Johnson said “of course I want to renew my apologies and sympathies for all those who lost loved ones during the pandemic”, when asked to apologise in light of the court’s ruling.
Liberal Democrat spokesperson for health and social care Daisy Cooper raised the ruling at Prime Minister’s Questions, adding: “The court also found no evidence that the former health secretary addressed the issue of the risk to care home residents of such transmission despite the Government insisting at the time that a protective ring had been thrown around care homes. The Government has once again been found to have broken the law.
“Will the Prime Minister apologise to the families of the thousands and thousands of people who died in care homes in the first half of 2020, and will he also apologise to care workers for the shameful comment that he made in July 2020 when he said that too many care homes didn’t follow procedures in the way that they could have?”
The Prime Minister said: “Of course I want to renew my apologies and sympathies for all those who lost loved ones during the pandemic, people who lost loved ones in care homes. And I want to remind the House of what an incredibly difficult time that was, and how difficult that decision was.
“And we didn’t know very much about the disease, and the point I was trying to make to which she refers is the thing we didn’t know in particular was that Covid could be transmitted asymptomatically in the way that it was and that was something that I wish we had known more about at the time. As for the ruling that she mentions. We will study it, and we will of course respond further in due course.”
A spokesman for former health secretary Matt Hancock said: “This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts. The court also found that PHE (Public Health England) failed to tell ministers what they knew about asymptomatic transmission.
“Mr Hancock has frequently stated how he wished this had been brought to his attention earlier. Mr Hancock’s thoughts are with everyone who lost loved ones, and we must ensure that all the right lessons are learned.”
Paul Conrathe, solicitor at Sinclairslaw who represented the claimants, said: “It was clear from the appalling Covid death toll in care homes that something went badly wrong with Government policy. Today’s High Court ruling, that the Government ignored known risks to care home residents and acted irrationally in failing to protect them, is unprecedented and extraordinary.
“Some of the most vulnerable in our society were left unprotected and thousands died unnecessarily. We are pleased that the High Court has recognised the scale and gravity of the Government’s failings.”
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