The Claimants (C1 and C2) have applied for a judicial review of the Defendants’ policies and related measures bearing upon the protection of care homes, and their residents during the COVID-19 pandemic.
R (on the application of (1) Dr Cathy Gardner (2) Ms Fay Harris) v (1) Secretary of State for Health and Social Care (2) NHS Commissioning Board (NHS England) (3) Public Health England
The current position of the application is that permission has been given to the Claimants to pursue the judicial review. Mr Justice Liden is waiting to list the final hearing but indications given were that this will be sometime between March and June 2020.
Attached to this piece is a PDF document setting out the timeline taken from the pleadings and allegations made by the Claimants regarding measures undertaken in relation to care homes.
Summary of allegations
Around 20,000 care home residents in England and Wales have died as a result of the COVID-19 outbreak, between 17 March 2020 and 15 April 2020. This was despite public references to a “protective ring” that had been thrown around care homes to combat the pandemic.
It is understood that up to 25,000 patients were discharged from hospitals into care homes in an effort to free up NHS beds. C1’s father died of probable COVID-19 and C2’s father died of COVID-19 after COVID-19 positive patients from NHS hospitals were discharged and placed in the care homes they were in.
It is not known how many of the 25,000 had COVID-19 at the time of discharge, as the patients were untested. However, the Claimants submit that during March 2020, despite the known risk the Defendants did not implement any adequate protective measures to protect vulnerable care home residents against the risk of infection or death. Indeed, they implemented positive measures and policies that significantly increased the risks to vulnerable care home residents, the mandatory discharge policy, and advised care homes to encourage staff to work in multiple care homes.
A lack of testing for hospital patients and care home residents (which persisted until around mid-May) meant that hospitals did not know whether discharged patients were Covid-19 positive, meaning that care homes were absent this information. In addition, discharged patients may have been admitted into care homes where COVID-19 was already present.
The purchase of PPE was significantly hampered by shortages on the open market, and the failure of governmental bodies to procure and distribute adequate supplies was catastrophic.
Alleged specific breaches
The pleading alleges various breaches duties owed by the Defendant, including:
Breaches of the ECHR and Human Rights Act (specifically Articles 2, 3, 8 and/or 14)
The Defendants’ failures to timeously implement an adequate regulatory scheme to protect vulnerable care home residents, including the Claimants’ fathers, was in breach of Article 2 (The right to life). Article 2 contains a number of overlapping duties. The Claimants allege that the Defendant failed to abide by their general ‘systems duty’ to put in place appropriate systems for the protection of life in suitable emergencies where the State is, or ought to be, aware of the risks in question.
The ‘operational duty’ was also applicable in these circumstances, as there was a real and immediate risk to life, actual or constructive knowledge of the risk and a sufficient connection or link with the responsibility of the State. It is alleged that the Defendants assumed responsibility for the lives of care home residents by establishing and applying a detailed scheme of legal rules governing care homes and directing the manner in which care homes should respond to the pandemic.
Article 3 (prohibition of torture), Article 8 (right to respect for private and family life) and Article 14 (protection from discrimination) were also breached. It is alleged that the Defendants were well aware of the “uniquely vulnerable” position of the care home population and the fundamental importance of implementing protective measures for care homes.
However, the publicly available documents demonstrate that in February and March 2020 no adequate steps were taken to develop and implement measures for the protection of vulnerable care home residents. This meant that timeous or adequate protective measures during the critical period February to early April were not taken, leaving residents physically or legally unable to leave their care homes.
Continuing breaches of the aforementioned Articles are also alleged.
Breaches of the Equality Act
The discharge of medically fit patients into care homes was discriminatory against elderly and disabled persons. The instructions had a direct and immediate impact upon medically fit patients and those already in care homes who were at risk of infection from them. This was disproportionate to those in care home since the discharged patients consisted substantially of elderly or disabled individuals.
Breaches of public law
Each of the policies implemented by the Defendants, including the mandatory discharge policy, were unlawful on the grounds it was made in breach of the Defendants’ respective public law duties.
The Defendants were required to act on a protective or precautionary basis due to the vulnerability of the care home population. Where there was scientific uncertainty on a particular issue, the Defendants were required not to take any unnecessary or avoidable risks, yet did so.
As stated earlier, the current position of the application is that permission has been given to the Claimants to pursue the judicial review. Mr Justice Liden is waiting to list the final hearing but indications given were that this will be sometime between March and June 2020.
Similar claims may now present themselves, and it may be the case that private care companies are the subject of that litigation. Future claimants may argue that the accepting of patients into their properties and proceeding with the Government’s advice also justifies alleging the same breaches of the Human Rights Act against those companies.
However, in this instance, the Claimants have not pursued the care home in question. Their decision to direct the action against the Government and public bodies is perhaps indicative of perceptions around culpability for these issues. This assessment, and the outcome of the judicial review brought by the Claimants, will significantly affect those against whom further claims are made, and whether private care companies themselves will try to redirect claims made against them.
Further updates will be provided in due course.