Landmark Judgment finds Pandemic Care Home Policies were Unlawful
The recent English High Court Judgment which was delivered in the case of Gardiner & Harris -v- Secretary of State for Health and Social Care, NHS England and Public Health England places fresh scrutiny on Government decision making during the pandemic and the disproportionate impact which it had on care home residents.
The applicants in the case were Dr. Cathy Gardiner and Fay Harris. Both applicants lost their father to Covid-19 in care homes during the first wave of the pandemic. The case was a Judicial Review which challenged four key Government policies. The applicants were seeking declarations that the policies in question were unlawful as well as being in breach of rights enshrined under the European Convention on Human Rights.
The heavily criticised policy of discharging patients who had no symptoms of Covid-19 and were untested from hospitals to care homes was found to be unlawful. It is anticipated that this seminal Judgment will have a reverberating effect not only in England, but in other jurisdictions where similar policies were adopted.
The challenge related to four key policies:
Guidance on residential care provision – Public Health England.
This guidance, which was introduced on 13th March 2020, included a number of wide ranging policies relating to Covid-19 prevention and control. The policy of permitting visits to care homes from residents who had Covid-19 but no symptoms’ came under particular scrutiny. This policy was in operation until 6th April 2020 when it was superseded by new guidance.
‘The march discharge policy’
The applicants contended that this policy directed the mass discharge of hospital patients into care homes without testing, isolation, appropriate guidance or assessment of whether care homes could provide safe care. The applicants also argued that the policy prioritised freeing up hospital beds and failed to consider the associated risks to care home residents.
‘The April admissions guidance’
This guidance stated that care home staff should only wear PPE when caring for residents with symptoms of Covid-19. At the time this guidance was in operation negative Covid-19 tests were still not required prior to discharging patients from hospitals to care homes.
‘The April action plan’
This plan included a new policy which required testing of all patients being discharged from care homes to hospitals. Where a test result was pending it was recommended that the patient be discharged and isolated pending a negative result. Residents admitted to care homes from the community were subject to non-mandatory isolation.
The applicants argued that the Government had a positive obligation to take all appropriate steps to safeguard the lives of the deceased (and others in a similar position) and do all that can be done to prevent life from being avoidably put at risk. It was submitted that these policies significantly increased the risk of death from Covid-19 to care home residents.
The Respondents argued that the polices were a reasonable response which was based on the scientific evidence available at the time and that the Court should view these policies in this context.
The Court dismissed the applicants claims under the European Convention on Human Rights but crucially found that the common law claim in respect of the March discharge policy and the April admissions guidance were unlawful.
Lord Justice Bean stated that ‘the policy set out in each document was irrational in failing to advise that where an asymptomatic patient was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.’
Impact of the Judgment
With the UK Public Inquiry about to commence this Judgment again places Government decision making in focus. This Judgment provides a comprehensive analysis of the four policies which were the subject of challenge. It is likely that the same policies and numerous others will be evaluated during the course of the UK public inquiry.
Similar policies were adopted in devolved UK nations. This upcoming public inquiry will be central to evaluating the decision making of devolved nations. It is vital that policies adopted in devolved nations are placed under the same degree of scrutiny as those in England.
The Republic of Ireland also adopted a similar approach in relation to discharging untested hospital patients to care homes in the first wave of the pandemic. To date, no public inquiry or other suitable investigations have been established despite the staggering number of deaths which occurred in Irish nursing homes.
We act for 19 families of nursing home residents who have initiated judicial review proceedings against the Irish State in relation to their failure to establish an Inquiry. This Judgment undoubtedly raises questions not only about the actions of the State during the pandemic, but also its failure to evaluate the steps taken with a view to preventing a recurrence of these events.
Click here to see Enda McGarrity’s comments on the case in the Sunday Independent.