Government failure to consider risks of asymptomatic Covid spread in care homes was unlawful, rules court

The government unlawfully failed to consider the spread of Covid-19 from people without symptoms admitted to care homes in policies issued in the early stages of the pandemic.

That was the verdict of the High Court last week as it upheld part of a judicial review claim brought by the daughters of two men who were among about 20,000 care home residents who died of Covid in the pandemic’s first wave in 2020.

The claim centred on the Department of Health and Social Care (DHSC) and Public Health England’s (PHE) approach to preventing transmission of Covid within care homes, particularly from newly admitted residents discharged from hospital.

Drive to clear hospital beds

This was in the context of the DHSC’s drive to rapidly free up 15,000 acute hospital beds in the second half of March 2020 in order to protect NHS capacity as Covid’s first wave took hold. This was set out in guidance issued to NHS leaders on 17 March and 19 March (“the March Discharge Policy”).

The claimants – Cathy Gardner and Fay Harris – criticised the policy for failing to provide for the testing of patients before admission to care homes and for not making admission conditional on homes being able to provide safe care.

They also criticised DHSC and PHE guidance on care home admissions, issued on 2 April 2020 (“the April Admissions Guidance”), for not requiring negative tests before admission and for providing for care to be delivered as normal to asymptomatic people and Covid-positive residents no longer displaying symptoms.

Both, they said, prioritised freeing up hospital beds over protecting the safety of care home residents, and did not take account of evidence at the time on asymptomatic transmission of Covid.

‘Understandable’ concern regarding NHS capacity

Giving judgment, Lord Justice Bean accepted that the DHSC and PHE were “extremely and understandably concerned” about the prospect of NHS intensive care capacity being “overwhelmed”, as had happened at the time in Italy.

It was “unrealistic” to provide for care home admissions to be conditional on providers’ ability to deliver safe care, and “hopeless” for each discharged patient to be tested pre-admission, given testing capacity at the time.

However, the judge said that those drafting the March Discharge Policy and the April Admissions Guidance “simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission”.

Though there was no scientific proof at the time that asymptomatic transmission was occurring, predominant academic and expert opinion at the time was that it was possible.

‘Very serious consequences’

“Ministers were obliged to weigh up not just the likelihood that non-symptomatic transmission was occurring, but also the very serious consequences if it did so,” said Lord Justice Bean. “Non-symptomatic transmission would mean that one elderly patient moved from hospital to a care home could infect other residents before manifesting symptoms or even without ever manifesting symptoms.”

This should have involved providing for mandatory isolation of new residents to care homes for up to 14 days, as far as practicable.

Though the government introduced mandatory isolation of new care home residents in late April, the evidence ought to have prompted a change in policy earlier, the judgment concluded.

The government’s failure to set this out in the March Discharge Policy and April Admissions Guidance was unlawful, on grounds of irrationality, it found.

Human rights claims rejected

The court threw out most aspects of the claim, which Cathy Gardner and Fay Harris brought in relation to their fathers, Michael Gibson and Donald Harris, who died in care homes of Covid, on 3 April and 1 May 2020, respectively.

This included that the two men’s rights to life and to family life under the European Convention on Human Rights had been breached.

The court also rejected claims of unlawfulness against two other policies – Public Health England guidance on residential care issued on 13 March 2020, and the government’s action plan for adult social care published on 15 April 2020.

‘Uncertain evidence’

In response to the judgment, a government spokesperson said: “Our thoughts are with all those who lost loved ones during the pandemic…This was a wide ranging claim and the vast majority of the judgment found in the government’s favour.

“The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.

“The court recognised we did all we could to increase testing capacity. We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation and will respond in more detail in due course.”