The High Court in London has ruled that government care home policies which allowed untested hospital patients into care homes at the start of the pandemic was illegal. The judgement handed down by Lord Justice Bean and Mr Justice Graham is the first time the government has been held to account by the High Court for its handling of the Covid-19 pandemic.
The judicial review case was brought by Dr Cathy Gardner and Fay Harris, whose fathers, Michael Gibson and Donald Harris died after testing positive for coronavirus whilst residing in their care homes. The case challenged six specific policies regarding the discharge of hospital patients to care homes made in the early stage of the pandemic.
The judgement found that those drafting the March Discharge Policy and the April Admissions Guidance for care homes simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission. The policy prioritised freeing up hospital beds but failed to consider the risk this would create for care home residents.
The Court ruled that the April Admissions Guidance issued on 02 April 2020 was “irrational”, in that it failed to take into account the risk of asymptomatic transmission and failed to make an assessment of the balance of risks.
The government failed to advise 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. Further, it took until late April after the Covid outbreak for it to become a requirement for patients to have two negative tests before leaving hospital. The High Court ruled in favour of the Claimants, finding that the Government acted unlawfully in their failure to protect care home residents.
It’s early days as to how this ruling will influence the victims and families that undoubtedly suffered as a consequence of these policy failures. Nonetheless, the ruling sets a marker as to how the Government should respond in future emerging health emergencies and it is a welcomed first step to justice for those who have sought accountability.