A grieving daughter who lost her father to Covid-19 in an Oxfordshire care home has won the first stage of a high court challenge against the government’s policy of discharging hospital patients into care homes without tests.
Dr Cathy Gardner has been granted a full hearing in her case which alleges the government misled the public by claiming to have “thrown a protective ring” around care homes, and that policy failures “led to large numbers of unnecessary deaths and serious illnesses”. Gardner’s father, Michael Gibson, became infected and died in April after a patient with the virus was discharged from hospital into his home.
Gardner’s case described the strategy on care homes as “one of the most egregious and devastating policy failures of recent times”. It is being brought with another grieving relative, Fay Harris.
“This is highly significant because now we will get to see the evidence, and internal documents about the so-called protective ring,” Gardner said. “There has been no evidence that happened. This is a case for all of the families of the over 20,000 people who died in care homes.”
Government lawyers argued in the virtual hearing on Thursday that discharging patients from hospitals into care homes was moving them out of an environment “where, on any sensible view, it could be said they were at greater transmission risk”. Discharges, they said, were not “done without a care for the risk in care homes”.
But Mr Justice Linden said the case “crossed the threshold of arguability”, adding: “I consider it in the interests of justice for the claim to be heard.” The case is not likely to be heard before the spring.
Academics have calculated that nearly 21,000 care home residents have died of Covid in England to date. There are currently rising numbers of outbreaks in homes, with 374 residents dying from Covid in the first week of this month, accounting for 12% of deaths, up from 8% the previous week. However, rates of infection remain considerably lower than during the last lockdown as a result of rules prohibiting the discharge of hospital patients without a test, better use of PPE, a reduction in staff movement and improved testing.
The legal action is being brought against the Department for Health and Social Care, NHS England and Public Health England. Jason Coppel QC, the barrister for Gardner and Harris, alleged: “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 … This, inevitably, resulted in the transferred patients seeding Covid infection within the vulnerable care home populations into which they were transferred.”
He said the DHSC, NHS England and PHE “were aware” care home populations would be “uniquely vulnerable to death or serious harm” if exposed to Covid-19 [and] … that “asymptomatic Covid transmission was a realistic possibility or probability”.
Sir James Eadie QC, the barrister for the government and PHE, countered that the government was “faced with unprecedented challenges and fast-evolving scientific advice” and 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.”
Those judgments were “reasonable responses to the pandemic as it, and understanding of it, developed”.
Lawyers 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.