Care home discharges with no Covid test ‘unlawful’, court rules
GOVERNMENT policies on discharging untested hospital patients into care homes at the start of the coronavirus pandemic were “unlawful”, the High Court has ruled, undermining claims that a “protective ring” was put in place for the most vulnerable.
Two women who took legal action after their fathers died from Covid-19 – Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died – partially succeeded in claims against the then health secretary and Public Health England.
When the pandemic hit in early 2020, patients were rapidly discharged into care homes without testing, despite the risk of asymptomatic transmission, with Government documents showing there was no requirement for this until mid-April.
Bereaved families and care groups said the ruling proves the “protective ring” then health secretary Matt Hancock said had been put around care homes was “nonexistent”, a “sickening lie” and a “joke”.
A spokesman for Mr Hancock said Public Health England (PHE) had failed to tell ministers what they knew about asymptomatic transmission and he wished it had been brought to his attention sooner.
Boris Johnson said he wanted to “renew my apologies and sympathies”, adding: “The thing we didn’t know in particular was that Covid could be transmitted asymptomatically in the way that it was and that was something that I wish we had known more about at the time.”
However, the risks of asymptomatic transmission had been highlighted by figures including the Government’s chief scientific adviser for England, Sir Patrick Vallance, who said this was “quite likely” as early as March 13.
Varying levels of risk had also been outlined in papers from late January, the ruling said.
In a ruling on Wednesday, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.
They said that despite “growing awareness” of the risk of asymptomatic transmission, there was no evidence that Mr Hancock or anyone advising him addressed the issue to care home residents in England.
The judges said: “The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
They added that it was “irrational” for the Government not to have advised that asymptomatic patients should isolate from existing residents for 14 days upon admission.
The judges rejected other claims by the women made under human rights legislation, and against NHS England.
However, the risks of asymptomatic transmission had been highlighted by figures including Sir Patrick Vallance, who said this was “quite likely” as early as March 13, while multiple papers had outlined varying risks from late January, the ruling said.