The Government’s policy towards care homes in England at the start of the Covid pandemic has been deemed illegal, dealing a major blow to ministers’ claim of having thrown a ‘ring of protection’ around vulnerable residents.
The High Court has said the policy of not isolating people discharged from hospitals to care homes during the first weeks of the pandemic in spring 2020 without testing was “irrational”.
Dr Cathy Gardner, one of two grieving daughters who took the case after their fathers died of Covid in care homes in April and May 2020, has called on Boris Johnson to step down after the historic decision, claiming that the illegal care home policy was just one of several failures in the handling of the pandemic.
“The Prime Minister must take responsibility for everything that happened during these months which he obviously approved of,” she said.
She also called on former Health Secretary Matt Hancock to investigate whether he had misled Parliament over care home protections and described his request for a ‘ring of protection’ as ‘a despicable lie whose he should be ashamed and for which he should apologize”.
Hancock had said ‘from the start we tried to throw a ring of protection around our care homes‘, but government guidance issued on April 2, 2020 as ministers raced to free up 25,000 hospital beds amid fears the NHS could be overwhelmed confirmed that ‘negative tests are not required before transfers/admissions to the nursing home’.
Gardner’s father, Michael Gibson, died aged 88 in Oxfordshire on April 3, 2020 after a Covid outbreak at his care home. More than a quarter of all deaths among care home residents in March and April 2020 involved Covid-19 – more than 12,500 people.
The decision comes ahead of the statutory public inquiry into the Covid pandemic and a key part of its inquiry will be ‘the management of the pandemic in care homes and other care settings, including infection prevention and control, transfer residents to or from the houses,” according to the draft terms of reference.
Lawyers for Gardner, 60, and Fay Harris, 58, had argued in a judicial review that government policy was doing ‘the exact opposite’ of Hancock’s ‘protective ring’ claim.
The discharge policy was not changed until April 15, 2020 to require discharge testing and 14-day isolation for new community admissions. The ruling said there was no evidence that Hancock considered, or was asked to consider, the need to isolate care home discharges in March 2020, and so it does not was “not an example of political judgment”. No committee of experts was consulted on the matter either.
A Hancock spokesperson said the ruling “finds that Mr Hancock acted reasonably in all respects”. “The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission,” they said. “Mr Hancock has often said he wished this had come to his attention sooner.”
Speaking outside the Royal Courts of Justice in London on Wednesday, Gardner said: ‘I always believed my father and other care home residents were neglected and abandoned by the government. The high court has now upheld that belief and our campaign to expose the truth.
Harris, whose father, Don Harris, died aged 89 in Hampshire on May 1, 2020, added: ‘I wasted precious years with my wonderful father,’ she said, adding: “He should have been safe and protected.”
She said the government’s actions “have put many vulnerable people at increased risk of death – and many thousands have died”. “It has only added to the distress for me and many others that the government has not been honest and admitted its mistakes,” she said.
After a nearly 22-month crowdfunded legal challenge to the legality of the policies put forward by the Health Secretary, Public Health England and NHS England, the verdict was delivered by Lord Justice Bean and Mr Justice Garnham.
They said: “The decisions of the Secretary of State for Health and Social Care to develop and maintain a series of policies contained in documents published on March 17 and 19 and April 2, 2020 were unlawful because the editors of these documents did not consider the risk to elderly and vulnerable residents of non-symptomatic transmission.
During the proceedings, government lawyers denied any policy failure and told the court that scientists had not advised “strong evidence” of asymptomatic transmission until mid-April 2020. They said fears that hospitals being overwhelmed was “far from moot” and that ministers had to balance competing harms amid huge challenges.
But the judges said the risk of asymptomatic transmission was highlighted by people including Sir Patrick Vallance, the government’s chief scientific adviser, in a radio interview as early as March 13, 2020.
The judges said the discharge and admission policies in March and April 2020 were “irrational in failing to state that when an asymptomatic patient (other than a patient who tested negative) was admitted to a nursing home care, he should, if possible, be kept away from other residents for 14 days”.
The court dismissed other aspects of the case and a claim against NHS England.
The decision was welcomed by the Parents and Residents Association as confirmation of what “people living in foster care and their families knew all along – the ring of protection was non-existent”.
The organisation’s director, Helen Wildbore, said it was “a first step towards justice”.
Lawyers said the decision increased the risks for the government of facing compensation claims from families and care providers. Michelle Penn, partner and head of care and occupational disease claims at law firm BLM, said: “If care home operators themselves were to deal with personal injury claims during this period, it is likely that they would ask for a contribution from the government to cover these costs.
She said they could also seek compensation from the state for any alleged forced closures or other losses “as a result of the government’s wrong and illegal policies.”
“It means the government is now looking at the barrel of potentially very expensive claims due to Dr Gardner’s victory.”
The Department of Health and Social Care said: “We have specifically sought to protect care home residents based on the best information at the time.
“The court recognized that this was a very difficult decision at the start of the pandemic, the evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to avoid it. be submerged.
“The court acknowledged that we had done everything we could to increase testing capacity. We acknowledge the judge’s comments on assessing the risk of asymptomatic transmission and our advice on isolation.