Caselaw update: Judicial Review challenge to Government policies and guidance during the COVID-19 Pandemic

R (oao) (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 [2022] EWHC 967 (Admin) (27 April 2022)

Background

The Claimants, Dr Gardner and Ms Harris, brought a Judicial Review claim (“JR”) following the COVID-19 related deaths of their fathers, Michael Gibson and Donald Harris, in care homes on 3 April and 1 May 2020.

The JR was pursued against the Secretary of State for Health and Social Care (D1), NHS Commissioning Board (NHS England) (D2), and Public Health England (D3). 

In broad terms, the Claimants alleged that the Defendants’ actions (and inactions) had unnecessarily introduced, or risked introducing, COVID-19 into care homes through staff, visitors and new admissions; and that care home residents had been subjected to a greater risk of harm as a result. Their position was that the Defendants inappropriately prioritised freeing up hospital beds and “directed the mass discharge of hospital patients into care homes without testing, isolation, appropriate guidance in relation to PPE or assessment of whether the care home could provide safe care”.

Three particular policies were challenged by the Claimants, namely:

• ‘The March PHE Policy’ (Coronavirus (COVID-19) – Guidance on Residential Care Provision’, 13 March 2020).
• ‘The March Discharge Policy’ (comprising ‘Next Steps on NHS Response to COVID-19’, 17 March 2020, and ‘COVID-19 Hospital Discharge Service Requirements’, 19 March 2020).
• ‘The April Admissions Guidance’ (‘Admission and Care of Patients During COVID-19 Incident in a Care Home’, 2 April 2020).

The decision

The JR was heard in the High Court between 14 and 21 March 2022, by Lord Justice Bean and Mr Justice Garnham. Judgment was published on 27 April 2022.

The Claimants were partially successful in their JR against the Secretary of State for Health and Social Care (D1) and Public Health England (D3). The claim against the NHS Commissioning Board (NHS England) (D2) was dismissed, on the basis the Court considered it was D1 and D3 who were responsible for making proper arrangements for admission to care homes during the COVID-19 Pandemic. 

The Court recognised that the Defendants had to make decisions in respect of a novel disease, against a background of uncertain and rapidly developing scientific knowledge, in circumstances of enormous pressure, and with practical limitations in the early months of the Pandemic. However, whilst there was no scientific proof of asymptomatic transmission in mid-March 2020, it was well recognised by experts that it was possible, and the Government was considered to be aware at that stage of the changing evidential picture.

The Court’s conclusion was that the March Discharge Policy and April Admissions Guidance “simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission”. 

The Court held there was a “significant delay at a critical period” in the guidance recommending testing and a 14 day isolation period for new residents admitted to care homes (whether from hospital or the community), with that recommendation not being made until 15 April 2020.

Ultimately, the March Discharge Policy and April Admissions Guidance were held to be “irrational” in failing to advise that asymptomatic patients admitted to care homes (other than those testing negative) should be kept apart from other residents for 14 days, as far as practicable. 

Commentary

This Judgment comes ahead of the public inquiry into the COVID-19 Pandemic, chaired by Baroness Hallett, which will review the preparations and response to the Pandemic in the UK, and identify lessons learned. The draft terms of reference for the inquiry, published on 10 March 2022, include the management of the Pandemic in care homes and other care settings, infection prevention and control, the transfer of residents, treatment and care of residents, restrictions on visiting and changes to inspections.

For further information on how you might prepare for the inquiry, please contact one of our specialist lawyers and please also see our articles Preparing for the Covid-19 Public Inquiry and Being candid about Covid: preparation for the Covid-19 public inquiry.