The Coronavirus pandemic and care homes ~ High Court

Within the UK coronavirus still results in a considerable number of new cases (112,705 are reported in the period 22 to 28 April). In the same period, 1628 deaths are recorded - that is, deaths within 28 days of a positive covid test. Of course, not all such recorded deaths will be have been caused by covid. For the time being, the government continues to publish data -

UK Summary | Coronavirus (COVID-19) in the UK (data.gov.uk) 

During the early stages of the pandemic, the government decided that protecting the NHS from being overwhelmed was a priority. I do not criticise or comment further on that policy save to note that, as a consequence of the policy, the government commissioned the building of a number of "Nightingale Hospitals" and also developed a policy of discharging elderly patients from NHS hospitals to care homes.

Regarding discharges

to care homes, a recent judicial review judgment of the High Court has been published - https://www.judiciary.uk/wp-content/uploads/2022/04/Gardner-Harris-v-DHSC-judment-270422.pdf.

About 20,000 residents of care homes in England died of COVID-19 during the first wave of then pandemic in 2020. Two of them were Michael Gibson and Donald Percival Maynard Harris. 

Also, even during the early stages of the pandemic, there was medical concern that some individuals might carry the virus but show no symptoms themselves - that is, asymptomatic patients.

The claimants sought declarations that policy decisions recorded in certain government documents either constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles. 

Compensation was not sought - only declarations.

The case was NOT an inquest concerning the deaths of Mr Gibson and Mr Harris alone and it was NOT a public inquiry. The court heard no oral evidence and evidence of opinion about the actions and decisions of the Defendants was not admissible.

In the event, the human rights claim did not succeed but the common law claim did succeed.

The court found that those drafting the March 2020 March Discharge Policy and the April 2020 Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.

As the judges put it at para 298 -

"... 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."

This is an interesting example of basic judicial review principles in play.

Footnote:

On 15 December 2021 the Rt Hon Baroness Hallett DBE, former Lady Justice of Appeal, was appointed to conduct a public inquiry under the Inquiries Act 2005 to examine the UK’s preparedness for and response to the COVID-19 pandemic, and to learn lessons for the future. The draft terms of reference published on 10 March 2022 cover a large number of topics, one of which is: “the management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, and changes to inspections”.

Law and Lawyers: Covid 19 Inquiry (obiterj.blogspot.com)

29 April 2022