The High Court has ruled that the government’s policy of not isolating patients discharged from hospitals into care homes during the early stages of the COVID pandemic was unlawful.
The judicial review ruling comes after a crowd-funded, 22-month legal challenge brought by Fay Harris and Dr Cathy Gardner, both of whom lost their fathers to Covid-19, against the health secretary at the time, Matt Hancock, NHS England, and Public Health England (PHE).
High Court judges Bean LJ and Garnham J found that those drafting the discharge policy had failed to take into account the potential risk to elderly and vulnerable care home residents from non-symptomatic transmission of Covid-19. Therefore, the decision to impose the policy was irrational and unlawful.
Between March and June 2020, over 20,000 care home residents died from the virus.
According to Jason Coppel QC, the fact that the care home population was "uniquely vulnerable" to Covid-19 was widely known. Nonetheless, he said, "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."
In their ruling, the judges held that: "Those drafting the March discharge policy and the April admissions guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission."
The judges said that, contrary to claims made by the government, the risk of asymptomatic transmission had, at the time the policy was being drafted, already been pointed out by experts including the government’s own chief scientific adviser Sir Patrick Vallance, who had discussed the risk in a radio interview on 13 March 2020.
It took the government until 15 April 2020 to change the policy to require testing prior to discharging a resident to a care home and specifying a 14-day isolation period for new admissions.
Nonetheless, Hancock’s spokesperson responded to the High Court ruling by claiming that the decision "comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts", adding that: "The court also found that PHE failed to tell ministers what they knew about asymptomatic transmission. Mr Hancock has frequently stated how he wished this had been brought to his attention earlier."
Speaking outside the Royal Courts of Justice following the ruling, Dr Gardner said “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.”
Fay Harris said: “I have lost precious years with my wonderful dad. He should have been safe and protected. It has only increased the distress to me and many others that the government have not been honest and owned up to their mistakes.”
Both women have called on Boris Johnson to resign. Speaking in Parliament, the Prime Minister insisted that, during what had been an “incredibly difficult time”, the government “didn't know very much about the disease … the thing we didn't know in particular was that COVID could be transmitted asymptomatically in the way that it was and that was something that I wish we had known more about at the time”, a statement which seems to be at odds with the High Court’s findings as to what the government knew, or ought to have known, and when.
