The government policy towards care homes in England at the onset of the Covid pandemic was illegal, a top court has ruled, in a blow to ministers’ claims to have thrown a “protective ring” around society’s most vulnerable people.
The High Court judgement came after a case brought by two grieving daughters – Dr Cathy Gardner and Fay Harris – who lost their fathers to the virus in care homes in spring 2020.
Michael Gibson died aged 88 in Oxfordshire on 3 April 2020 while Don Harris died aged 89 in Hampshire on 1 May 2020 after outbreaks in their care homes.
More than a quarter of all deaths among care home residents in March and April 2020 involved Covid-19, with more than 12,500 people killed.
‘Protective ring’
Lawyers for Gardner, 60, and Harris, 58, argued in a judicial review that the government did the “very opposite” of claims by the then health secretary Matt Hancock, that “right from the start we have tried to throw a protective ring around our care homes”.
The verdict was handed down on Wednesday after a crowdfunded legal challenge which lasted nearly 22 months, questioning the legality of policies advanced by Hancock, Public Health England and NHS England.
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.”
Ministers and officials had pushed to free up space in hospitals by discharging 25,000 hospital patients into care homes. Government guidance issued on 2 April 2020 said negative tests were not required prior to transfers.
The daughters said the failure to protect care home residents was one of the most “egregious and devastating policy failures in the modern era”.
During proceedings, government lawyers denied any policy failure – and told the court that scientists did not advise of “firm evidence” of asymptomatic transmission until mid-April 2020.
But the judges said the risk of asymptomatic transmission had been highlighted by people including Sir Patrick Vallance, the government’s chief scientific adviser, in a radio interview as early as 13 March.
“Non-symptomatic transmission would mean that one elderly patient moved from hospital to a care home could infect other residents before manifesting symptoms, or even without ever manifesting symptoms,” they said.
‘Irrational’
“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.”
Responding to the verdict, Rachel Harrison, GMB National Officer for care, said: “Today’s judgement is a terrible reminder of callous disregard this government has shown for care home residents and workers.
“Transferring untested hospital outpatients into enclosed facilities where carers were denied access to proper PPE and even sick pay was always going to have tragic consequences
“GMB members nursed much loved residents as they died from this awful virus, while all the while worrying about their own safety and how they were going to pay the bills.
“If any good is to come out of this pandemic then it must include urgent reform of the sector. Ministers and employers need to explain how they are going to care for the people who have cared for us.”
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