The Government's policy of discharging patients from hospitals to care homes in the early stages of the Covid-19 pandemic was "unlawful", the High Court has ruled.
Judges have found that the Government failed to take into account the risk of catching Covid-19 posed by the discharge of asymptomatic people back into care homes - and that this meant elderly and vulnerable residents were not protected. The legal action was taken by Dr Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died against Health Secretary Sajid Javid, NHS England and Public Health England.
The ruling was delivered by Lord Justice Bean and Mr Justice Garnham after a hearing a the High Court in London in March. Lawyers representing Mr Javid, NHS England and Public Health England fought the claim.
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." And 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, had argued 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 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 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."
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."
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