Government failed care home residents with ‘unlawful’ hospital discharge policy – so what’s next?

England and Wales

The High Court released their judgment yesterday in the judicial review proceedings brought by Dr Cathy Gardner and Fay Harris, whose fathers Michael Gibson and Donald Harris, died in care homes after testing positive for Covid at the start of the pandemic. The judicial review was brought against the Secretary of State for Health and Social Care, NHS England and Public Health England on a number of grounds relating to breaches of domestic common law and the European Convention of Human Rights.

The Court heard that about 20,000 residents of care homes in England died of Covid-19 during the first wave of the pandemic. A key issue in the case was the challenge of government policies in March and April 2020 which provided for patients to be discharged from hospital to care homes. It was stated that those policies failed to take into account risks to the care home residents from non-symptomatic transmission of the virus. It was said that at the time, the Chief Scientific Advisor was already aware of and advising government (and the public), about the possibility that the discharged patient could infect care home residents before or without manifesting symptoms.

The claim was partially successful with Lord Justice Bean summarising:

“The common law claim succeeds against the Secretary of State and Public Health England in respect of both the March Discharge Policy and April Admissions Guidance documents to this extent: the policy set out in each document was irrational in failing 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.”

So what now? The Claimant raised some important points in respect of the suitability of care homes to manage patients in this way given that most are not experts in infection control and there were varying degrees of guidance in respect of PPE provided at different stages of the pandemic. It remains to be seen whether the decisions and actions taken by care homes at that time could result in regulatory action by their regulatory body, the Care Quality Commission, for example, for a failure to adequately risk assess an admission exposing residents to actual harm or the risk of harm. In addition, it will be interesting to see whether this area is examined in more detail during the Covid-19 Inquiry (the consultation in respect of the draft Terms of Reference closed on 7 April 2022 with Baroness Hallett due to provide recommendations to the Prime Minister in May 2022).

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