Dr Cathy Gardner v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean |
| Judgment Date | 27 April 2022 |
| Neutral Citation | [2022] EWHC 967 (Admin) |
| Docket Number | Case No: CO/2123/2020 |
| Court | Queen's Bench Division (Administrative Court) |
R (on the application of)
[2022] EWHC 967 (Admin)
Lord Justice Bean
and
Mr Justice Garnham
Case No: CO/2123/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel QC, Joseph Barrett, Rupert Paines and Raphael Hogarth (instructed by Sinclairslaw) for the Claimants
Sir James Eadie QC, Jonathan Auburn QC, Heather Emmerson, Hannah Slarks, Yaaser Vanderman and Charles Bishop (instructed by Government Legal Department) for the First and Third Defendants
Eleanor Grey QC and Patrick Halliday (instructed by DAC Beachcroft) for the Second Defendant
Hearing dates: 14 – 21 March 2022
Approved Judgment
This is the judgment of the court to which we have both contributed.
Introduction
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the first Claimant, and Donald Percival Maynard Harris, father of the second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020, Mr Harris in a care home in Hampshire on 1 May 2020. The Claimants seek declarations that certain policy documents issued by the Defendants during the relevant period, and the policy decisions recorded in those documents, constituted breaches of their fathers' rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles. The Claimants do not claim compensation, but seek appropriate declarations by the court.
This is an important and legitimate claim, but we must emphasise at the outset what it is and what it is not. It is not an inquest concerning the deaths of Mr Gibson and Mr Harris alone. On the other hand, the case is not a public inquiry but a judicial review. There has been no oral evidence. Evidence of opinion about the actions and decisions of the Defendants is not admissible: see below.
On 15 December 2021 the Rt Hon Baroness Hallett DBE, former Lady Justice of Appeal, was appointed to conduct a public inquiry under the Inquiries Act 2005 to examine the UK's preparedness for and response to the COVID-19 pandemic, and to learn lessons for the future. The draft terms of reference published on 10 March 2022 (two working days before the hearing of this claim) cover a large number of topics, one of which is:
“the management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, and changes to inspections”.
The Claimants' fathers are put forward as representative of many other residents of care homes who died during the first wave of the pandemic. Since, however, both of them died in England, the decisions with which we have been concerned are those relating to England; and since the second of the two deaths occurred on 1 May 2020, we have not examined decisions made and documents published after that date save to the extent that they throw light on decisions made before that date.
The policies
Four policies promulgated before 1 May 2020 are identified in the Claimants' Amended Statement of Facts and Grounds as being subject to challenge in these proceedings. (A prior policy, the “ February PHE Policy”, while not the subject of direct challenge, is said to have provided “ important background and context for the decisions and policies which followed”.)
The first policy under challenge was one developed by the First and Third Defendants and entitled ‘ Guidance: Coronavirus ( COVID-19) – Guidance on Residential Care Provision – Public Health England’, known in these proceedings as “The March PHE Policy”. That policy was issued on 13 March 2020 and remained in force until 6 April 2020.
The Claimants say that the effect of this policy was to “seed” infection into care homes at a time when the government had considered that community transmission had been occurring for 2 weeks. The Claimants also assert that the policy failed to address the risk from visitors to care homes. The guidance provided that:
“care home providers are advised to review their visiting policy, by asking no one to visit who has suspected COVID-19 or is generally unwell, and by emphasising good hand hygiene for visitors. Contractors on site should be kept to a minimum. The review should also consider the wellbeing of residents, and the positive impact of seeing friends and family.”
Visits from persons who were infected with COVID-19 but did not have symptoms would, on this advice, continue. The Claimants submit that the policy not only failed to address risk of transmission from staff but increased it. The guidance on personal protective equipment (“PPE”) was that if neither the worker nor the individual receiving care had symptoms then PPE was not required above normal good hygiene. The PPE guidance was not rectified or replaced even though the Guidance for infection prevention and control in healthcare settings (“the March NHS Guidance”) published on the same day advised that PPE should always be worn by all healthcare workers. The policy also failed to address the risks arising from use of agency and bank staff. The March PHE policy stated that care home providers were advised to work with local authorities and establish plans for mutual aid, including sharing of the workforce between providers. Care homes were thus invited to take positive steps to increase the number of staff working across multiple facilities which increased the infection risk.
The Claimants also assert that the policy failed to address the risk of transmission from other residents, especially those being newly admitted or re-admitted. They say there was no testing, isolation or instruction to use PPE despite SAGE's conclusion on 10 March 2020 that community transmission was underway. Finally, they argue that the policy failed to provide adequate guidance on infection control measures to be adopted in care homes.
In defence of the March PHE Policy, the Defendants say that their understanding at that time was that “transmission occurred from symptomatic individuals.” They point to concerns about “potential physical and emotional impacts on residents and their families” if visits were completely restricted.
On staffing, the Defendants point to potential concern regarding pressure on staffing numbers. On visitors, the Defendants submit that the first case of COVID in a care home was detected on 10 March 2020. The March PHE Policy advised that anyone with COVID-19 symptoms should not visit a care home. Formal restrictions on visitors were introduced on 2 April 2020. Prior to that care homes were asked to review their visiting policy which, the Defendants submit, was a reasonable approach. In any event, argue the Defendants, early studies have found that allowing visitors into care homes had only a marginal impact.
The second policy the Claimants challenge is what has been called “the March Discharge Policy.” That was made up of ‘Next Steps on NHS Response to COVID-19’, dated 17 March 2020 (“the March NHSE Instruction”), and ‘ COVID-19 Hospital Discharge Service Requirements’, dated 19 March 2020 (“the March Discharge Requirements”).
The Claimants submit that this directed the mass discharge of hospital patients into care homes without testing, isolation, appropriate guidance in relation to PPE or assessment of whether the care home could provide safe care. The effect of this was to transfer large numbers of infected patients into closed environments containing the segment of the population most vulnerable to being killed or harmed by COVID-19. This policy was maintained until 15 April 2020.
The Claimants complain that the policy prioritised freeing up hospital beds but failed to consider the risk this would create for care home residents. Care homes were under pressure to accept hospital discharges regardless of whether they were able to provide safe care. Furthermore, the failure to provide testing was not justifiable either by lack of knowledge of asymptomatic transmission or testing capacity. The failure to provide or recommend isolation was not justifiable; by this time the Government's household isolation policy required that any person who had been in contact with a COVID-19 positive case had to self-isolate for 14 days.
The Defendants submit that the policy required clinicians treating patients to decide whether a COVID-19 test was appropriate during their hospital stay, based on the case definition and symptoms. The decision on whether it was safe to discharge them would be based on individual assessments undertaken by a clinician working with local authorities. Furthermore, the policy aimed to free up NHS facilities for the most severely affected cases. That was an unimpeachable and vital aim. The Defendants did not protect the NHS at the expense of older people but protected the NHS in order to protect older people who are more vulnerable to COVID-19. This key objective was achieved and everyone who needed hospital treatment received it.
In any event, the Defendants submit, testing and isolation for discharges was introduced four weeks later. At the time complained of, sufficient testing capacity was simply not available. The COVID-19 test was a brand-new test and there was no infrastructure for mass production or delivery. On 1 March 2020, 2,100 tests were available each day. By the time the guidance was changed to permit routine testing of all hospital discharges, there were 38,766 tests available per day. The...
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