A woman whose elderly father died in a care home in April has won the first stage of a legal challenge over measures taken to protect those living in care homes from Covid-19.
Dr Cathy Gardner claims there was a failure to implement “adequate” measures to protect residents from the “ravages” of coronavirus and this was “one of the most egregious and devastating policy failures of recent times”.
She is pursuing a High Court claim against the Government and two health bodies over decisions and measures taken in relation to care homes during the coronavirus pandemic.
Dr Gardner argues certain key policies and decisions led to a “shocking death toll” of care home residents – which she puts at more than 20,000 people between March and June – particularly an alleged policy of discharging patients from hospital into care homes without testing and suitable isolation arrangements.
Dr Gardner, who is bringing her case with another individual, Fay Harris, alleges the measures breached human rights and equality laws.
At a remote hearing on Thursday, Mr Justice Linden granted Dr Gardner permission for a full hearing of her challenge.
He said that she should be given permission to pursue her case on all grounds saying it “crossed the threshold of arguability”.
The judge also said: “I consider it in the interests of justice for the claim to be heard.”
The Government and health bodies oppose Dr Gardner’s challenge and asked the judge to dismiss the case.
Dr Gardner’s father, Michael Gibson, died in an Oxfordshire care home on April 3 after it re-admitted without Covid testing a former resident who had been in hospital. Mr Gibson’s death was recorded as “probable Covid”, according to documents before the court.
Ms Harris’s father “died of Covid” after his care home accepted hospital discharges of patients who may have been infected with the virus, it adds.
The legal action is being brought against the Department for Health and Social Care (DHSC), NHS England and Public Health England (PHE).
In written documents before the court, Jason Coppel QC, barrister for Dr Gardner and Ms Harris, alleged: “The defendants’ failure to implement timely, adequate measures to protect vulnerable care home residents from the ravages of Covid represents one of the most egregious and devastating policy failures of recent times.”
He said: “The defendants implemented policies which exposed vulnerable care home residents, including the claimants’ fathers, to the risk of death or serious illness from Covid.
“In particular, during March 2020 the defendants formulated and applied a national policy of discharging patients from hospitals directly into care homes, without Covid testing or quarantine arrangements being applied and in circumstances where care homes lacked suitable infection control regimes including personal protective equipment (PPE).
“This, inevitably, resulted in the transferred patients seeding Covid infection within the vulnerable care home populations into which they were transferred.”
The barrister claimed the Government, NHS England and PHE “were aware at all relevant times” that care home populations would be “uniquely vulnerable to death or serious harm” if exposed to Covid-19, that patients could transmit the virus to others before they showed symptoms, that “asymptomatic Covid transmission was (putting this at its lowest) a realistic possibility or probability”.
He also argued that “the nature of the care home physical environment, patient cohort and the relative (compared to hospitals) lack of expertise and equipment (including PPE) meant that many care homes would have no realistic possibility of implementing effective quarantine arrangements within their facilities.”
Sir James Eadie QC, barrister for the Government and PHE, said the challenge was “unarguable”.
In court documents, he said: “The Government was faced with unprecedented challenges and fast-evolving scientific advice.
“Throughout the period in issue it considered how best to protect older people both within and outside care homes.
“That involved making a series of judgments based on expert scientific advice, in an area in which the science was uncertain and evolving.
“There is no arguable basis on which to conclude that those judgments fell outside the range of reasonable responses to the pandemic as it, and understanding of it, developed.”
At Thursday’s hearing, Sir James said the aim of the “discharge requirement” introduced in March was “to ensure those who were medically fit to be discharged were being discharged” to avoid the NHS being overwhelmed.
He added it was moving people from an environment where space was being “freed up to take the worst affected cases, those nearest death’s door”.
Sir James argued this measure was also taking people “out of an environment where, on any sensible view, it could be said they were at greater transmission risk”.
“It is wrong to suggest it was being done without a care for the risk in care homes,” he said.
“These risks were being subjected to continuing care and consideration.”
Sir James also claimed that care homes had already been given guidance about safeguarding at that point, including around issues such as isolation.
In court papers, Eleanor Grey QC, for NHS England, said evidence continued to emerge that the hospital discharges “were not a key cause or driver” for Covid-19 infections in care homes, and the grounds for challenging the organisation’s request to discharge those who were medically fit from hospital were “unarguable”.
“That policy was a proper and lawful response to the public health emergency faced,” she said.
Dr Gardner is pursuing her case on the grounds that the Government and the two health agencies breached duties under the European Convention on Human Rights (ECHR), including the right to life and protection from discrimination.
It is also argued that the defendants failed in their public law duties to “act rationally, with due enquiry, with regard to relevant considerations and disregarding irrelevant considerations”, and that the measures indirectly discriminated against elderly and disabled people.