Discharging patients to care homes during Covid pandemic was ‘unlawful’, rules court

Government policies on discharging patients from hospital to care homes at the outset of the pandemic were “unlawful”, High Court judges have ruled. They say the decision failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of Covid.

The ruling was made in a case brought by two women whose fathers died from Covid-19. The women claimed that the Government failed to protect care home residents during the pandemic.

Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, have taken High Court action against Health Secretary Sajid Javid, NHS England and Public Health England. They asked two judges to make declarations that unlawful decisions were made.

Dr Gardne said in a statement after the ruling: “My father, along with tens of thousands of other elderly and vulnerable people, tragically died in care homes in the first wave of the Covid-19 pandemic.

“I believed all along that my father and other residents of care homes were neglected and let down by the Government.

“The High Court has now vindicated that belief, and our campaign to expose the truth.

“It is also now clear that 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.”

Lord Justice Bean and Mr Justice Garnham delivered their ruling this morning after considering arguments at a High Court in London in March. Lawyers representing Mr Javid, NHS England and Public Health England are 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.

Jason Coppel QC said the fathers of Dr Gardner and Ms Harris were part of that “toll”. “The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,” said Mr Coppel in a written 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.”

Mr Coppel told judges: “That death toll should not and need not have happened.” He added: “Put together, the various policies were a recipe for disaster and disaster is what happened.”

Mr Coppel said other countries, particularly in the Far East, had shown the way to safeguard residents by stopping the virus getting into care homes. Sir James Eadie QC, who represented Mr Javid and Public Health England, said the women’s claim should be dismissed.

“This is a judicial review challenge to six specific policies made in the early stage of the pandemic,” he told judges. “As the evidence demonstrates, the defendants worked (and continue to work) tirelessly to seek to protect the public from the threat to life and health posed by the most serious pandemic in living memory, and specifically sought to safeguard care homes and their residents. ”

He added: “The lawfulness of the decisions under challenge must be assessed in the context of the challenge faced by the Government and the NHS at that time, in particular March and April 2020.”

Eleanor Gray QC, who represented NHS England, also argued that the claim should be dismissed. A Government spokeswoman had said during the hearing, in a statement outside court: “Every death is a tragedy and we worked tirelessly to protect the public from the threat to pandemic and health posed by the sought and specifically to safeguard homes and their residents .

“We have provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents now vaccinated.”

The GMB union said the Government had shown “callous disregard” for care homes, after the High Court ruled that policies on discharging patients from hospital to care homes at the outset of the pandemic were “unlawful”.

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.”

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