Discharging Covid patients into care homes was unlawful, High Court rules

The Government broke the law by discharging Covid-positive patients into care homes, the High Court has ruled, amid accusations of ministers’ «callous disregard» for vulnerable people.

The Department for Health and Social Care (DHSC) had claimed that during the pandemic it had put a «protective ring» around care homes. 

However, High Court judges ruled on Wednesday that the Government’s policy of discharging patients from hospital to care homes at the start of the pandemic was «unlawful» because it «failed to take into account» the risk to elderly and vulnerable residents from non-symptomatic transmission of Covid.

They said that, despite there being «growing awareness» of the risk of asymptomatic transmission throughout March 2020, there was no evidence that Matt Hancock, the then Health Secretary, addressed the issue of the risk to care home residents of such transmission.

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

‘One of the most egregious policy failures in the modern era’

Jason Coppel QC, the barrister representing the two women, told Lord Justice Bean and Mr Justice Garnham that between March and June 2020 more than 20,000 elderly or disabled care home residents died from Covid in England and Wales.

Mr Coppel 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,» wrote Mr Coppel.

«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.»

He told judges: «That death toll should not and need not have happened.

«Put together, the various policies were a recipe for disaster and disaster is what happened.» 

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

‘Every death is a tragedy’

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 in a statement outside the 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.»

Following the ruling, the GMB union said the Government had shown «callous disregard» for care homes.

‘Callous disregard for care home residents and workers’

Rachel Harrison, the GMB national officer for care, said: «Today’s judgement 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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