COVID-19: Government broke the law by failing care home residents who died of coronavirus, High Court rules - Sky News

The government broke the law by discharging untested hospital patients into care homes during the early stages of the COVID-19 pandemic, the High Court has ruled.

The case was brought by Dr Cathy Gardner and Fay Harris whose fathers, Michael Gibson and Donald Harris, died after testing positive for coronavirus.

In a ruling on Wednesday, 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 during March 2020, there was no evidence that Matt Hancock, who was health secretary at the time, addressed the issue of the risk to care home residents of such transmission.

The SAGE scientific advisory group said "asymptomatic transmission cannot be ruled out" in early February.

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But government documents show there was no requirement for hospital patients to be tested for COVID, before being transferred to care homes, until mid-April.

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PM responds to care home ruling

Dr Gardner, whose father died at the age of 88 in a care home in Bicester, Oxfordshire, in April 2020, 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."

A barrister representing Dr Gardner and Ms Harris told the judges that more than 20,000 elderly or disabled care home residents had died from COVID-19 in England and Wales between March and June 2020.

Jason Coppel QC said the fathers of both 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."

Read more: Daughter of care home victim says government claims of 'protective ring' were 'a lie'

Image: Cathy Gardner, left, and Fay Harris, right, took High Court action against the government

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.

Mr Hancock's spokesman said the High Court found he acted reasonably but Public Health England "failed to tell ministers what they knew about asymptomatic transmission" of COVID-19 and "Mr Hancock has frequently stated how he wished this had been brought to his attention earlier".

Lawyers representing Health Secretary Sajid Javid, NHS England and Public Health England had fought the claim the government acted unlawfully by failing to protect care homes.

Read more: Matt Hancock says 'we worked as hard as we could to protect care homes'

This ruling lays down a marker for future government responses to health emergencies

The government's failure to protect elderly and vulnerable residents inside care homes is the single biggest scandal of the UK response to the pandemic. Tens of thousands of our most at risk community were left exposed to a killer virus that we knew would target them first. The government says it had to take action to protect the NHS and increase capacity so it would not be overwhelmed by the emerging global health crisis.

But, and this is important, when concerns were voiced about discharging patients who might be carrying the virus into these care homes, those warnings were dismissed. We were told repeatedly by the government that it had thrown a "ring of steel" around these care homes. We know now that happened far too late. Tens of thousands of these vulnerable residents died as a result of the government’s unlawful action.

We carried out our own investigation to find out what had happened during the spring of 2020. We sent Freedom Of Information requests to 143 NHS Trusts. Of these 59 responded. We learned 6435 people were discharged from hospital into a care home between 19 March and 15 April. Two thirds of these patients (4210) did not have a COVID-19 test during their stay or at discharge. Of those who were tested 623 were positive. NHS Trusts confirmed to Sky that there were patients who were discharged with a positive test result.

The High Court judgement is the first time the government has been held to account for its handling of the pandemic. It comes ahead of any inquiry. It brings a sense of justice to the two women who took the government to court. Dr Cathy Gardener lost her father Michael and Fay Harris' father Don died of COVID while living as residents in a care home. It will bring comfort to tens of thousands of grieving families who have demanded answers from the government. It also puts down a marker for future government responses to emerging health emergencies. There is also now the very really possibility of compensation claims.

Dr Cathy Gardener told me right after the judgment was handed down that she wants and apology from the prime minister and she wants him to resign. She has always insisted government policy was responsible for Michael’s death. The High Court agrees.

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 unprecedented challenge faced by the government and the NHS at that time, in particular March and April 2020."

Eleanor Grey QC, who represented NHS England, also argued that the claim should be dismissed.

A government spokeswoman said: "Every death is a tragedy and we worked tirelessly to protect the public from the threat to life and health posed by the pandemic and specifically sought to safeguard care 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."

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2022-04-27 12:33:04Z
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