Covid: Government broke the law by discharging untested hospital patients to care homes, High Court rules

Two women whose fathers died from Covid-19 have won a High Court challenge against the Government’s ‘unlawful’ policy of moving untested patients to care homes at the outset of the pandemic.

Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, partially succeeded in their claims against the Health Secretary and Public Health England (PHE) on Wednesday.

They have both since called on Prime Minister Boris Johnson to resign over the ruling, while one accused former health secretary Matt Hancock of ‘lying to the public’ when he said the NHS was putting a ‘protective ring’ around care homes.   

The government’s 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 said the policy not to isolate people discharged from hospitals to care homes in the first weeks of the pandemic in spring 2020 without testing was “irrational”.

Gardner’s father, Michael Gibson, died aged 88 in Oxfordshire on 3 April 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.

Dr Cathy Gardner, one of two grieving daughters who brought the case after their fathers died from Covid in care homes in April and May 2020, called on Boris Johnson to resign after the landmark ruling, saying the illegal care homes policy was just one of several failures in the management of the covid crisis.

In their ruling today, 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 there being ‘growing awareness’ of the risk of asymptomatic transmission throughout March 2020, there was no evidence that then Health Secretary Hancock addressed the issue of the risk to care home residents of such transmission.

A spokesman for Mr Hancock today said the ruling actually cleared him of wrongdoing as it ruled that it was the now-defunct PHE who had ‘failed to tell ministers what they knew about asymptomatic transmission’. 

Cathy Gardner (left) and Fay Harris (right), whose fathers died from Covid-19, leave the Royal Courts of Justice, central London, where judges have ruled Government policies on discharging patients from hospital to care homes at the outset of the pandemic were ‘unlawful’

The GMB union said the Government had shown ‘callous disregard’ for care homes following the ruling. 

Rachel Harrison, GMB national officer for care, said: ‘Today’s judgment 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.’

The judges said in their ruling: ‘In our judgment, this was not a binary question, a choice between on the one hand doing nothing at all, and on the other hand requiring all newly admitted residents to be quarantined. 

‘The document could, for example, have said that where an asymptomatic patient, other than one who has tested negative, is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days. 

‘Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. 

‘Nor is it a point on which any of the expert committees had advised that no guidance was required. 

‘The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.’ 

The judges said these issues were not addressed until a further document in mid-April 2020.

They concluded: ‘The common law claim succeeds against the Secretary of State and Public Health England in respect of both the 17 March and 2 April 2020 documents to this extent: the policy set out in each document was irrational in failing to advise that where an asymptomatic patient, other than one who had tested negative, was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.’

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

Dr Gardner and Ms Harris both said Mr Johnson should resign in the wake of the ruling.

‘I think absolutely the Prime Minister should resign,’ said Dr Gardner.

‘There are so many reasons why the Prime Minister should resign.’

Ms Harris added: ‘I think Boris Johnson should resign – because of this and for other reasons.’

Ms Gardner also accused Mr Hancock and the government of lying when it said it had placed a ‘protective ring’ around care homes from the start of the pandemic.

She told Sky News: ‘When secretary of state Matt Hancock said that he’d thrown a protective ring around care homes right from the start – I heard him say that on television and my chin nearly hit the floor because all of us who were involved in any way with care homes at the start of the pandemic knew that was absolutely not true.

‘It was a lie. It was a lie then and it is a lie now.

‘They didn’t do anything to protect my father, there was no help given to care homes and the death toll in those first few weeks of the pandemic was catastrophic.

‘I think they never imagined they were going to be found out. You only have to look at the parties (in Downing Street) to realise they never think they’re going to be found out.’

Helen Wildbore, director of the Relatives and Residents Association, said: ‘This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent.

‘Older people were abandoned at the outset of the pandemic, let down by the very systems designed to protect their rights.

‘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.’

Paul Conrathe, solicitor at Sinclairslaw who represented the claimants, said: ‘It was clear from the appalling Covid death toll in care homes that something went badly wrong with Government policy.

‘We are pleased that the High Court has recognised the scale and gravity of the Government’s failings.’

Lawyers representing current health secretary Sajid Javid, NHS England and Public Health England were fighting the claim.

Dr Gardner, who has an academic qualification, is in her 60s and from Sidmouth, Devon.

She said her father had died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.

A barrister representing the two women told Lord Justice Bean and Mr Justice Garnham that between March and June 2020 – when Matt Hancock was Health Secretary – more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.