High Court decision marks the start of justice over pandemic restrictions

THE HIGH COURT ruling that the Government broke the law by discharging Covid-positive patients into care homes will not be the last defeat the Government will suffer as the process of inquiry and accountability begins.

The private action brought by two bereaved daughters of victims of Covid, both resident in separate care homes that received patients from hospitals without the NHS checking they had Covid or not, at last brings a sense of justice to a process that was flawed from the start.

The Health Secretary at the time, Matt Hancock, had claimed he took all precautions to protect residents in care homes where patients from hospitals were being transferred – but now he has nowhere to hide for his actions – or justify his defence, which according to the Court judgement appears to have no basis in truth. 

Hancock’s ministry, the Department for Health and Social Care (DHSC) had claimed during the pandemic it had placed a “protective ring” around care homes. That has not been accepted by the Court.

Instead the High Court judges ruled the Government’s policy at the start of the pandemic of discharging patients from hospitals into care homes was “unlawful” because it “failed to take into account” the risk to elderly and vulnerable residents from non-symptomatic transmission of Covid. That policy did not change until 15 April when Hancock decided all patients being moved from English hospitals to care homes must be tested for Covid-19. (In Scotland Nicola Sturgeon, having been informed of Hancock’s new policy, delayed similar action until 21 April, resulting in nearly a thousand patients being moved without testing during those six days.)

During the first wave of the pandemic in 2020 about 20,000 residents of care homes in England died of Covid-19. Two of those were Michael Gibson, father of the first Claimant Dr Cathy Gardner, and Donald Harris, father of the second Claimant, Ms Fay Harris. Mr Gibson died in a care home in Oxfordshire on 3 April 2020, Mr Harris in a care home in Hampshire on 1 May 2020.

Dr Gardner and Ms Harris brought a claim for judicial review against the Secretary of State for Health and Social Care, NHS England and Public Health England. Compensation was not sought by the claimants, only appropriate declarations by the court were requested. 

The claimants alleged that policy documents issued by the Defendants during the relevant period, and the policy decisions recorded in those documents, constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were irrational as a matter of domestic common law. While the court dismissed the claims under Articles 2 and 8 of the European Convention on Human Rights, and a claim against NHS England (which is legally distinct from the Secretary of State) it found for the claimants in regard to the decision to move patients into care homes.

In their judgment Lord Justice Bean and Mr Justice Garnham found that “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, which had been highlighted by (among others) Sir Patrick Vallance 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. 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.”

If you wish to read the judgement  please go to this link.

The judicial review is not the public inquiry. For a start it is based on written submissions, not oral evidence, there is no cross examination of witnesses and no public audience. This does not diminish the importance of the Court’s judgement; it is important in its own right. Moreover, with even greater analysis and debate in a public inquiry, the High Court’s decision points to how the inquiry has a real opportunity to bring out the truth of what decisions were made, and why. 

What it will mean for relations of residents of care homes who died and for the Government’s defence of its policy in the Inquiry, remains to be seen. We can be sure, however, that the Government (and indeed governments around the world) will have their flawed approaches tested far more robustly in the inquiry than they ever were in parliaments – where opposition parties and governments appeared joined at the hip in locking down the pubic.

In future contributions we shall be hearing from people managing and working in the care home sector.

Brian Monteith is a former member of the Scottish and European Parliaments and managing editor of the Time for Recovery blog.