Policies on discharging patients into care homes during Covid ruled unlawful

Government policies on discharging hospital patients into care homes at the start of the coronavirus pandemic were “unlawful”, the High Court has ruled, undermining claims that a “protective ring” was put in place for the most vulnerable.

Two women who took legal action after their fathers died from Covid-19 – Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died – partially succeeded in their claims against the Government on Wednesday.

When the pandemic hit in early 2020, patients were rapidly discharged into care homes without testing, despite the risk of asymptomatic transmission, with Government documents showing there was no requirement for this until mid-April.

The judges said it was necessary to discharge patients “to preserve the capacity of the NHS” and called the suggestion that the Government should have made provision in March for testing each patient before discharge “hopeless”.

But they found it was “irrational” for the Government not to have advised that asymptomatic patients should isolate from existing residents for 14 days after admission.

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”, a “sickening lie” and a “joke”.

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.

Boris Johnson said he wanted to “renew my apologies and sympathies”, adding: “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.”

However, the risks of asymptomatic transmission had been highlighted by figures including the Government’s chief scientific adviser for England, Sir Patrick Vallance, who said this was “quite likely” as early as March 13.

Varying levels of risk had also been outlined in papers from late January, the ruling said, adding that it is not suggested that ministers “should themselves have been keeping on top of the emerging science”, but this would be expected of scientists advising Government.

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 “growing awareness” of the risk of asymptomatic transmission, there was no evidence that Mr Hancock or anyone advising him addressed the issue of this risk to care home residents in England, so it was “not an example of a political judgment on a finely balanced issue”.

The judges said: “Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

They rejected other claims by the women made under human rights legislation, and against NHS England.

A spokesman for the former health secretary said the High Court had found he acted reasonably and he had been cleared “of any wrongdoing”, adding that PHE “failed to tell ministers what they knew about asymptomatic transmission” of Covid-19.

He continued: “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.”

Speaking outside court, Miss Harris, 58, of Alton, Hampshire, said she hoped the judgment will help families who lost loved ones “due to this Government’s reckless and unlawful policies”.

She said: “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.”

Dr Gardner, 60, from Sidmouth, Devon, said: “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 Government spokesman said it had been a “very difficult decision”, taken when evidence on asymptomatic transmission was “extremely uncertain”.

He said: “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, but said that “would be entirely a matter for those families and not one for us”.

Asked whether Boris Johnson would still say he got all the big calls right during the pandemic, the PM’s 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.”

Jason Coppel QC, representing the two women, told the court last month that between March and June 2020 more than 20,000 elderly or disabled care home residents died from Covid-19 in England and Wales.

“The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,” he wrote in a 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.”

Helen Wildbore, director of the Relatives and Residents Association, which represents older people in care and their families, told the PA news agency:  “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.”

Charlie Williams, whose father died in a care home in April 2020, was told that nobody in the home had coronavirus but later found out that 27 residents had died from the virus.

Mr Williams, a spokesman for the Covid-19 Bereaved Families for Justice group, said: “We’ve always known that our loved ones were thrown to the wolves by the Government, and the claims made by Matt Hancock that a protective ring was made around care homes was a sickening lie.”

He added: “We now need to see those responsible for those dark days held accountable and lessons learned to save lives, ensuring the grim scenes of spring 2020 are never repeated again.”