Bereaved families and care groups said the ruling proves there was no protective ring around care homes at the start of the pandemic.
27 April 2022
Government policies on discharging hospital patients into care homes at the start of the coronavirus pandemic were “unlawful”, the High Court has ruled, undermining claims that a “protective ring” was put in place for the most vulnerable.
Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, both from Covid-19, partially succeeded in their claims against the then health secretary and Public Health England.
When the pandemic hit in early 2020, hospital patients were discharged into care homes without testing, with Government documents showing there was no requirement for this until mid-April.
Bereaved families and care groups said the ruling proves the “protective ring” then health secretary Matt Hancock said had been put around care homes was “non-existent” and residents were “abandoned”.
A spokesman for Mr Hancock said Public Health England had failed to tell ministers what they knew about asymptomatic transmission and he wished it had been brought to his attention sooner.
In a ruling on Wednesday, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.
They said that, despite “growing awareness” of the risk of asymptomatic transmission throughout March 2020, there was no evidence that Mr Hancock addressed the issue of the risk to care home residents in England of such transmission.
The judges said: “In our judgment, this was not a binary question – a choice between on the one hand doing nothing at all, and on the other hand requiring all newly admitted residents to be quarantined.
“The document could, for example, have said that where an asymptomatic patient, other than one who has tested negative, is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days.
“Since there is no evidence that this question was considered by the secretary of state, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue.
“Nor is it a point on which any of the expert committees had advised that no guidance was required.
“The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
The judges rejected other claims by the women made under human rights legislation, and against NHS England.
A spokesman for the former health secretary said the High Court had found he acted reasonably but PHE “failed to tell ministers what they knew about asymptomatic transmission” of Covid-19.
He continued: “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.”
Dr Gardner, 60, from Sidmouth, Devon, and Miss Harris, 58, of Alton, Hampshire, said Prime Minister Boris Johnson should resign after the ruling.
Speaking outside court, Miss Harris said she hopes the judgment will help families who lost loved ones “due to this Government’s reckless and unlawful policies”.
She said: “Their actions exposed many vulnerable people to a greater risk of death – and many thousands did die.
“It has only increased the distress to me and many others that the Government have not been honest and owned up to their mistakes.”
Dr Gardner said: “Matt Hancock’s claim that the Government threw a protective ring around care homes in the first wave of the pandemic was nothing more than a despicable lie of which he ought to be ashamed and for which he ought to apologise.”
A barrister representing the two women told the court at a hearing in March that between March and June 2020 more than 20,000 elderly or disabled care home residents died from Covid-19 in England and Wales.
“The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,” said Jason Coppel QC in a written case outline.
“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.”
Helen Wildbore, director of the Relatives and Residents Association, told the PA news agency: “This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent.
“Older people were abandoned at the outset of the pandemic, let down by the very systems designed to protect their rights.
“The ruling is very welcome as a first step to justice but bereaved families will be left asking why more wasn’t done to protect their loved ones and how many lives could have been saved.”
Charlie Williams, whose father died in a care home in April 2020, was told that nobody in the home had coronavirus but later found out that 27 residents had died from the virus.
Mr Williams, a spokesman for the Covid-19 Bereaved Families for Justice group, said: “We’ve always known that our loved ones were thrown to the wolves by the Government, and the claims made by Matt Hancock that a protective ring was made around care homes was a sickening lie.
“Now a court has found their decisions unlawful and it’s clear the decisions taken led to people dying who may otherwise still be with their loved ones today.
“We now need to see those responsible for those dark days held accountable and lessons learned to save lives, ensuring the grim scenes of spring 2020 are never repeated again.”
