Over the last six days the High Court reconvened to hear the judicial review of Gardner v Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England.

The Defendants were accused of failing their duties to ensure the safety of care home residents due to prioritising the objective of obtaining further capacity in hospitals by discharging patients into care homes. It was also alleged they continued to fail their duty by encouraging care homes to follow a symptoms based approach in their published guidance, even when the science suggested that asymptomatic individuals could transmit the disease. These decisions were made during a critical period and involved a known vulnerable population which resulted in excess of 20,000 deaths.

The defence

Mr Eadie QC, instructed by the Defendants, reminded the Court that the question to consider was whether the Defendants had been unlawful in their decision making to allow, and at times encourage, hospital discharges to be admitted into care homes without first being tested for COVID-19. It was brought to the Court's attention that the amount of discharged hospital patients admitted into care homes was a decreased figure in 17 March - 15 April 2020 compared with the same period the year before. Whilst the decreased figure was not due to the Defendant's actions, and some outbreaks of COVID-19 in care homes were likely caused by the promotion of new admissions encouraged by the Defendants, it was interesting to see that there was not a surge of admissions at this time.

The claimants' case

Mr Coppel QC, who was instructed by the Claimants by way of Crowdfunding, claimed that the Defendants were unlawful in their decision making as the published guidance did not follow the scientific evidence at the time. It was accepted that there was not one right solution, but any decision could only be lawful if the risks had been sufficiently weighed and the wider implications considered. Due to the lack of audit trail, Mr Coppel QC tried to persuade the Court that there cannot have been a risk balancing exercise and instead the implications for care homes accepting untested hospital discharges was not considered. Although this was taken into consideration and Lord Justice Bean stated that the weighting of the evidence would be adjusted accordingly, it was also noted that there was no evidence to suggest that any part of the witness statements were untrue.

Mr Coppel QC compared the care home COVID-19 rates and deaths with those in other countries and found that some countries were able to prevent outbreaks in their care homes. However, when inspected closer by Mr Eadie QC, it was brought to light that this only occurred in countries who had lower COVID-19 rates in their general population and  care home rates were comparable to those with similar general population rates to England. Whilst this does not prove that any decisions made were correct, it does suggest that other countries' governments agreed with England's approach.

The early guidance advised a symptoms based approach which suggested that testing and the use of PPE was only necessary for symptomatic individuals and to treat patients and new admission with no symptoms as normal. The guidance eventually started to shift at the end of April to a more cautionary approach, however due to PPE shortages care homes were unable to realistically carry out these protocols so it was still unsafe for care homes to have new admissions. It was argued that precautionary protocols were not sufficient when it was known in reality they could not be carried out.

Claimant's Counsel suggested that Article 2, the right to life, and Article 8, respect to your private and family life, were both triggered by the government's failure to put sufficient protocols in place to protect a known vulnerable category.  However, in order for these Articles to be triggered in the context of health and social care they need to fall into one of three established categories. Mr Eadie QC set out each category with their criteria and concluded that he did not believe the current case could fall under any of the categories.  

What next?

Whilst it appeared that the Defendants should have provided more precautionary guidance to care homes from an earlier stage, it is also important to remember that this was an unprecedented time and the Defendants were preparing for a worst case scenario based on modelled predictions. If it is found that they considered all risks and implications when making their decisions and had justification for making these decisions, it is unlikely that they will be found to be unlawful. However, with the lack of evidence to show any risk assessment exercises it is unclear what the outcome of this judicial review will be. The outcome is likely to take several months.

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