On the day that James Nunnerley died from Covid, health secretary Matt Hancock told a press briefing that ministers had 'tried to throw a protective ring' around care homes 'right from the start' of the outbreak. Carl Nunnerley didn’t see that press conference on May 15 2020.
He was sitting at his father’s bedside, holding his hand as he passed away. James, 88, who was known among friends and staff for his gift for telling jokes and singing, became the third resident at St Mary’s Nursing Home in Moston to succumb to the virus.
Before James’ death, ministers were trying to free up space in hospitals and discharged 25,000 patients into care homes, with government guidance on April 2 2020 citing negative tests were not needed before transfers. Carl said of his dad: "For seven weeks we tried to protect him but then somebody became ill in the nursing home, and then my dad became ill. I know people were let back into the home from hospital.”
A court has now found that the government policy around the discharge of hospital patients into care homes in England at the start of the pandemic was illegal - a ruling which could finally put paid to Mr Hancock’s insistence on a ‘protective ring’. Carl, who is in touch with the bereaved families who pursued the case, added: “I was waiting on this. Now I want to get a solicitor and take the Government to court.
“This has opened the floodgates. They were trying to hide it, trying to stop it. Now I can seek justice for my dad. But it’s not just my father, it’s for the people who didn’t have a voice.”
“I think so many people would be alive today if it hadn’t been for government policy.”
Judy Downie from the Relatives and Residents Association, meanwhile, agreed that other families will want 'some kind of acknowledgement that their relatives weren't thought of with appropriate care and compassion'.
She added: "The Government's ignorance really is inexcusable. I think the important thing is that it's going to point out how incompetent the whole thing was. People wouldn't have allowed any other group to be treated like that, it's almost as though older and vulnerable people are fair game.
"The ruling is a good thing - but it's too little too late."
In Greater Manchester at that time of James’ death, 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.
Responding to the Manchester Evening News at the time, the Department for Health and Social Care defended their action on care homes, saying they were working ‘around the clock to make sure care homes were protected’.
Wednesday's High Court ruling throws that claim into doubt. The crowdfunded case was pursued by Dr Cathy Gardner and Fay Harris, who lost their fathers to the virus during Covid outbreaks in care homes in Spring 2020. Michael Gibson, also 88, died in Oxfordshire on April 3 2020, while Don Harris, 89, died in Hampshire on May 1 2020.
They challenged the legality of decisions made by the health secretary, Public Health England and NHS England. They argued the failure to protect care home residents was among the ‘most egregious and devastating policy failures in the modern era’. The verdict was handed down on Wednesday.
Lord Justice Bean and Mr Justice Garnham said: “The decisions of the secretary of state for health and social care to make and maintain a series of policies contained in documents issued on 17 and 19 March and 2 April 2020 were unlawful because the drafters of those documents failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission.”
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.
However, the judges said the risk of asymptomatic transmission had been highlighted by scientists including Sir Patrick Vallance, the government’s chief scientific adviser, as early as March 23.
“The judges found that it was irrational for the DHSC not to have advised until mid-April 2020 that where an asymptomatic patient (other than one who had tested negative for Covid-19) 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.
"Care homes should have been prioritised earlier"
During a press conference in May last year, the M.E.N. asked the then-health secretary why Manchester and Trafford health chiefs were able to start testing patients before being released from hospital nearly a month ahead of it becoming Government policy. Mr Hancock said they had not had testing capacity to do so at the time, and that this capacity had to be built before it could become policy.
But Carl, 45, himself a carer for people with disabilities, believes care homes should have been prioritised sooner, with lack of PPE, testing and restrictions on movement of staff between settings among his concerns.
He told the Manchester Evening News : "Matt Hancock never really answered the questions about testing or shielding. He just kept talking about statistics. We can accept it's a pandemic and something we've never had to deal with in our lifetimes. But there has to be acceptance of failings and all the people who have suffered so they can learn from it.
"The Government was changing their mind every five minutes with what to do with their policy. How can a nursing home run like that, it must have been so hard."
Carl believes his father - a former copy checker for the Daily Mirror - would have lived at least another four years had it not been for the virus.
He added: "Just because someone is old and in a nursing home doesn't mean they had to die. He was such a kind man, he didn't deserve this. That's where the anger comes from.”
At the time of James's death, St Mary's Nursing Home confirmed they were taking patients from hospital but that they ensured these patients were then swabbed and then positive cases were quarantined for two weeks.
In March last year, NHS England was instructing hospital trusts to ‘urgently discharge all hospital in-patients who are medically fit to leave’ to maximise inpatients and critical care capacity. Even at the beginning of April, when guidance was changed, it was to warn homes that patients discharged from hospital 'may have Covid-19’' but that negative tests were not required prior to admissions into the care home - and isolation was not necessary afterwards.
It wasn't until April 15 that the the Department for Health and Social Care published an action plan that offered to test everyone going into a care home from hospital with immediate effect. But on April 29, in response to a story about care homes, Public Health England told the Manchester Evening News they were still only testing symptomatic patients.
"All we could do was baton down the hatches."
Rachel Hind, owner of Faversham House and Brookfield nursing homes, both in Urmston, remembers the pressure to take patients from hospital. Rachel, who chose to lock down both homes in March, before the Government advised it, and managed to avoid any cases until residents had received four jabs, said: "We didn't think policy was right at the time and it's now been proven to have been illegal."
Recalling the early days of the pandemic, she added: “We were getting phone calls all the time in March and April, they tried to get us to accept patients from hospitals but they weren’t doing testing at the time.
“We had no vacancies so they couldn’t force us to accept patients. We chose to lock down because we could see what was happening, we had not testing, no PPE, all we could do was baton down the hatches." On the ruling, she added: "It proves we were right to stick to our guns. Sadly other homes accepted patients because they had vacancies. The Government just weren't thinking."
Rachel added: “If Covid had come into our homes I don’t think we’d be operating today. All our residents are vulnerable and have co-morbidities. I don’t think some would have survived. “I’m so glad we closed down. I know a lot of homes did take patients and it introduced Covid because there was no testing. I saw the consequences they suffered.”
The Government’s handling of care homes can be compared to how other countries approached the protection of their most vulnerable citizens. In May 2020, for example, there had been zero deaths in Hong Kong’s care homes, a fact attributed to strict infection control measures including quarantining confirmed cases for up to three months.
In Germany, meanwhile, where nobody was allowed in from hospitals without a negative test, there had been fewer than 3,000 Covid-19 deaths reported at that time.
"Nothing more than a despicable lie."
Dr Cathy Gardner, one of the claimants who brought the case, 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.”
St Mary's Nursing Home confirmed there had been five cases of COVID-19, with three deaths as a result of the virus. A spokeswoman for St Mary's Nursing Home told the M.E.N.: "We are deeply saddened and our condolences go out to the family at this difficult time. And our thoughts are with all those affected by the current crisis.
"We have been vigilant in following all government guidance with regard to PPE and hygiene, contacting doctors immediately when someone has been symptomatic and accessing tests where possible."
Manchester City Council insists they had a policy from the start of the pandemic that older people in Manchester were tested before being transferred from hospital to care homes. The Manchester Evening News has asked what happened if patients from a hospital outside the area were moved to a care home in Manchester.
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 judgement 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."
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