The government policy towards care homes in England at the start of the Covid pandemic has been ruled illegal, in a significant blow to ministers’ claim to have thrown a “protective ring” around the vulnerable residents.
The high court judgment was sought 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, both 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 – more than 12,500 people. Lawyers for Gardner, 60, and Harris, 58, had argued in a judicial review the government did the “very opposite” of the claim by then health secretary, Matt Hancock, that “right from the start we have tried to throw a protective ring around our care homes”.
After an almost 22-month crowdfunded legal challenge to the legality of policies advanced by the health secretary, Public Health England and NHS England, 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.”
As ministers and officials 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 had argued the failure to protect care home residents was among 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. They said fears of hospitals becoming overwhelmed were “far from being theoretical” and that ministers had to balance competing harms amid enormous challenges.
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.
“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 court dismissed the other aspects of the case brought by the claimants, including claims under articles 2 and 8 of the European convention on human rights, and a claim against NHS England.