Covid-19 UK: High Court rules government policies unlawful

The High Court has found that policies in relation to care homes issued during the early stage of the coronavirus pandemic were unlawful.

Despite the government’s assertion that a ‘protective ring’ was thrown around care homes in early 2020, Lord Justice Bean and Mr Justice Garnham found that the policy to not isolate asymptomatic patients admitted into care homes was irrational.

R (on the application of) (1) Dr Cathy Gardner (2) Ms Fay Harris v (1) Secretary of State for Health and Social Care (2) NHS Commissioning Board (NHS England) (3) Public Health England [2022] EWHC 967 (Admin)

Background

The claimants were granted permission to pursue a judicial review of the government’s actions in 2020. The claimants’ fathers had died in care homes from the virus. They argued that care home residents were neglected and let down by the government.

The claimants challenged four government policies:

1. ‘Guidance: Coronavirus (COVID-19) – Guidance on Residential Care Provision – Public Health England’ developed by the Secretary of State and Public Health England.
2. “March Discharge Policy” made up of ‘Next Steps on NHS Response to COVID-19’ and ‘COVID-19 Hospital Discharge Service Requirements’.
3. ‘Admission and Care of Patients During COVID-19 Incident in a Care Home’.
4. ‘COVID-19: Our Action Plan for Adult Social Care’.

The emphasis of the claimants’ allegations related to alleged breaches of Article 2 of the European Convention of Human Rights (ECHR) and breaches of common law. The claims under Articles 3 and 14 of the Convention and sections 19 and 29 of the Equality Act 2010 were not pursued.

Article 2 ECHR

The claimants alleged that the defendants:

• Decided to take steps that introduced, or risked introducing, COVID-19 into care homes.
• Otherwise failed to take any or any adequate steps to prevent COVID-19 from entering care homes (through staff, visitors and new admissions).

Instead, it was alleged they purportedly relied upon strict infection control within care homes as the principal or only means of protecting care home residents from COVID-19. The claimants alleged that this was, and proved to be, a wholly inadequate means of protecting care home residents.

Public law claims

The claimants submitted there were a number of failures including:

• Failure to assess the risk to the lives of care home residents.
• Failure to consider adopting a policy of testing hospital discharges before admission to a care home.
• Failure to consider the likelihood of transmission from persons without symptoms until mid-April 2020.
• Adopting a policy without taking any additional steps to safeguard the vulnerable care home residents who would be exposed to COVID-19 infection as a result.
• There was a breach of transparency, by misleading the public in stating that "from the start we've tried to throw a protective ring around our care homes".

Judgment

Article 2 claim

The judges concluded that the defendants did not owe “the Article 2 operational duty for which the claimants contend.” After considering authorities it was found that there is no authority “which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined a sector of the population as residents of care homes for the elderly.” These claims were dismissed.

Public law claims

Lord Justice Bean and Mr Justice Garnham found that there were “no grounds on which the decision-making of [NHS Commissioning Board] can properly be attacked.” The Secretary of State and Public Health England “bore the responsibility of making proper arrangements for those admitted to care homes”.

The claim against NHS Commissioning Board was dismissed.

The claims against the Secretary of State and Public Health England were successful in respect of the ‘March Discharge Policy’ dated 17 March 2020 and 19 March 2020 and the ‘Admission and Care of Patients During COVID-19 Incident in a Care Home’ policy dated 2 April 2020.

By these dates there was a growing awareness of the risk of asymptomatic transmission. On 4 February the Scientific Advisory Group for Emergencies (SAGE) stated, “Asymptomatic transmission cannot be ruled out”. On 13 March 2020 Sir Patrick Vallance, the government's Chief Scientific Advisor, said “it looks quite likely that there is some degree of asymptomatic transmission”. The judges found there was no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. The two policies “simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

It was not until 15 April 2020 that testing and isolation for 14 days for new residents admitted to care homes was recommended. The judgment describes this as “a significant delay at a critical period.”

It was “irrational” that neither the March Discharge Policy nor the 2 April policy advised 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.

Comments

The Department of Health and Social Care has said that it “specifically sought to safeguard care home residents based on the best information at the time” but it acknowledges the judges’ “comments on assessing the risks of asymptomatic transmission and our guidance on isolation.”

The failure to recognise the significance of asymptomatic transmission, did of course, inform all of government policy making in the early stages of the pandemic and placed care homes and employers in an impossible position, which is likely to be reflected in the defence of claims. Commentators have already suggested that the government could find itself embroiled in private law litigation.

The public inquiry into the government’s handling of the pandemic is due to start this spring. Findings are unlikely within the next two years. The terms of reference recently published specifically exclude the apportionment of blame as a matter to determination. This case is likely therefore to provide encouragement for potential litigators who are unlikely to wait for the public inquiry to deliver its findings.