The Queen (on the Application of Cathy Gardner and Fay Harris) v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Eady |
| Judgment Date | 26 August 2021 |
| Neutral Citation | [2021] EWHC 2422 (Admin) |
| Docket Number | No. CO/2123/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2422 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Eady DBE
No. CO/2123/2020
Mr J. Coppel QC, Mr R. Paines and Mr R. Hogarth (instructed by Sinclairslaw) appeared on behalf of the Claimant.
Sir James Eadie QC, Mr Y. Vandeman and Mr C. Bishop (instructed by the Government Legal Department) appeared on behalf of the First and Third Defendants.
Ms E. Grey QC (instructed by DAC Beachcroft) appeared on behalf of the Second Defendant.
( via Microsoft Teams)
Introduction
This claim concerns the policies, acts and omissions of the defendants, relating to measures adopted for the protection of care homes and their residents during the first wave of the Coronavirus pandemic in the period February to June 2020.
After a contested hearing on 19 November 2020, Linden J gave permission for the claimants' claims for judicial review to proceed on all grounds. Subsequently, on 6 May 2021 this matter was listed for a full hearing over three days commencing 19 October 2021.
By order of 5 August 2021, Cheema-Grubb J considered various interlocutory applications made by the parties. Declining to accede to a request for an oral hearing of the applications, Cheema-Grub J increased the time listing for the substantive hearing to four days, but (relevantly) refused the claimants' applications for specific disclosure and to cross-examine the defendants' witnesses, and refused the defendants' application to adjourn the final hearing, and to instead list this matter for a two day procedural hearing over those days.
The claimants having applied for their applications to be renewed at an oral hearing, this matter now comes before me. Specifically, I am concerned with the following applications:
1) The claimants renewed applications for:
(a) specific disclosure,
(b) further information and
(c) cross-examination of witnesses.
2) If those applications are granted, the application of the first and third defendants (supported by the second defendant), to stay the substantive hearing in this matter pending the expected public inquiry.
3) The application of the first and third defendants (again supported by the second defendant), to permit the filing of further witness evidence by all defendants and for such other directions as might be necessary to ensure the claim is ready for trial.
I heard submissions on these applications at an in-person hearing on 25 August 2021 and am today providing my oral judgment by way of video hearing.
The Background.
The claim for judicial review in this matter was filed on 12 June 2020. It is brought by two members of the public, whose fathers both died in care homes in April/May 2020 of actual or probable Covid-19. Both deaths followed the discharge into a care home of NHS patients who were Covid-positive. The claimants' fathers were amongst some 20,000 care home residents who died of Covid-19 in the first wave of the pandemic. I am told that was more than 5 per cent of the total care home population.
The claimants make detailed criticisms of the defendants' policies and decisions in relation to care homes between February and June 2020. In particular, they complain that six policies failed to lawfully address the principal routes of transmission of Covid-19 to care home residents (by other residents, by external visitors, and by care home staff), namely (and I adopt the abbreviations used by the claimants for ease of reference):
1) The March PHE Policy.
2) The March Discharge Policy.
3) The April Admissions Guidance.
4) The April Action Plan.
5) The May Support Policy; and
6) The Revised June Admissions Guidance.
The claimants say that these failings amounted to breaches of legal duties by the defendants. In particular, they allege, first, breaches of Articles, 2, 3, 8 and 14 of the European Convention on Human Rights (“ECHR”). This aspect of their claim is principally put under Article 2, which requires the State to protect the right to life, in respect of which the claimants contend that the defendants owed both a systemic and an operational duty given what they say was the real and immediate risk to life, the actual constructive knowledge of the State of that risk, and a sufficient connection or link with the responsibility of the State. Secondly, the claimants allege failures by the defendants to have regard to relevant considerations in failing to mitigate the risk of Covid-19 infection in care homes, and/or that relevant considerations were disregarded, and that there was a failure to conduct proper inquiries. Thirdly, they allege indirect discrimination on grounds of age and disability, and breach of the public sector equality duty under s.149 of the Equality Act 2010. Fourthly, they allege breaches of the duty of transparency. They seek declarations that the defendants breached those duties and just satisfaction in the form of an acknowledgement of the breach of their human rights. They do not seek any financial remedy.
For their part, the defendants say that the claimants' criticisms of the approach taken to mitigate the risk of Covid-19 infections in care homes are unfair and unfounded, particularly having regard to the measures which were taken, the scientific and other advice which the defendants received, and the developing understanding of the nature and degree of risks which the Covid-19 virus entailed. They say that the evidence suggests that their approach did not increase the number of deaths in care homes, and that there is no evidence that the claimants' fathers died as a result of any failings on the part of the defendants. They further deny breaching any legal duty, and contend that this is not a case where the operational duty under Article 2 of ECHR is engaged but, in any event, deny that it was breached. More generally, the defendants complain that the claimants are really seeking to conduct a public inquiry through the courts.
In giving permission for this matter to proceed, Linden J was mindful of this criticism, making clear:
“9. … nor will the process of determining the Claim be in the nature of a public inquiry … the Claim will stand or fall on whether the claimants are able to establish the specific breaches of legal duties alleged rather than being a process in which the court second guesses the decisions of the defendants, or the rights and wrongs of their actions, in some more general sense.”
That said, when considering the question of public interest for the purpose of the claimants cost-capping application, Linden J noted that the claims:
“15. … raise issues of law of real and general importance. It is important that those issues are resolved and these proceedings are an entirely appropriate way to raise them. The issues affect a very large number of people, either directly because they are or may be cared for in care homes, or indirectly because they are relatives or friends of people who are cared for in care homes. I accept that if relief is granted it will only formally apply to the claimants, but it is likely to be of comfort to many others and it may assist in future dealings with the present pandemic and other analogous or similar situations.”
Turning to the procedural history relevant to these applications, after being afforded an extension of time for the filing of evidence, the defendants filed their detailed grounds and witness statements in early May 2021, and a document bundle following a week later. At the same time the defendants disclosed over 5,000 pages of documentation.
For the first and third defendants, witness statements have been filed from: Tom Surrey, Director of Adult Social Care Quality in the first defendant; Stuart Miller, Director for Delivery in Social Care for the first defendant (formerly an Incident Director in the first defendant's Pandemic Operational Response Centre); and Susan Hopkins, a Divisional Director in the third defendant, and, from January to August 2020, its National Incident Director for the Covid-19 Response. For the second defendant, a witness statement has been filed from Ian Dodge, National Director of Primary Care, Community Services and Strategy.
Each of the defendant's witness statements is lengthy and draws on various documents and other sources in providing the evidence in question. For the first and third defendants it has been explained that the statements are intentionally corporate in nature; the individuals in question could not directly attest to every matter, but speak for the relevant defendants, drawing on a variety of sources to do so, as referenced in footnotes. It is not suggested that every potentially relevant document has been referenced or disclosed, and there are...
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