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Beyond the Headlines: A review of the decision in R(on the application) of (1) Dr Cathy Gardener and (2) Ms Fay Harris and possible consequences arsing from this

Introduction

On 27 April 2022 judgment was handed down in the much anticipated Judicial Review 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 Boards (NHS England) (3) Public Health England

The case has, unsurprisingly, had extensive press coverage since the claim was issued on 12 June 2020, including various hearings of applications (and appeals of those decisions) made by both sides.

The matter was heard in March 2022 by Lord Justice Bean and Mr Justice Garnham; while judgment was given by the former both judges contributed.

The Judgment itself has generated headlines proclaiming the court’s findings of unlawfulness and alleging significant implications both for the Care Sector and the Government as a result; however, as is often the case, the headlines do not necessarily give the full picture.

 

Judicial Review

In a judicial review the court reviews the lawfulness of a decision or an action made by a public body. It must be remembered the court is looking at the way a decision was made rather than the rights and wrongs of the conclusion reached. There are 3 grounds for allowing a Judicial Review: Illegality, Irrationality and Procedural Impropriety or Unfairness.

In this matter, the court was very keen to stress that this case was not an inquest or a public inquiry. It highlighted how it had heard no oral evidence and how evidence of opinion about the actions and decisions was not admissible.

 

Background

The Claimants both lost their Fathers in the first wave of the Pandemic to Covid 19. Both gentleman were residents in care homes at the time. The First Claimant’s Father died on 2 April 2020 and the Second Claimant’s Father on 1 May 2020. Both gentlemen resided in care homes in England. As a result of the above facts the decisions the court had to consider were those relating to England. The court also did not examine decisions and documents after 1 May 2020, save for where they threw light on the decisions before that date.

 

The Claim

The claim was originally brought under Articles 2, 3, 8 and 14 of the European Convention on Human Rights (EHCR), at common law under s 19 and 29 of the Equality Act 2010 and under s 147 of the same Act (the Public Sector Equality Duty “PSED”); however, the claims under Articles 3 and 14 of EHCR and s 19 and 29 of the Equality Act 2010 were not pursued at trial.

The Statement of Facts and Grounds served on 31 July 2020 ran to 100 pages. The bundles, without authorities, contained thousands of pages – the court noting a “more focussed approach would have been preferable”. While the claims and responses were extensive in respect of both the EHCR challenge and Public law claim they predominantly focused on the allegation the Government took steps which actively introduced Covid (or risked this) into care homes and failed to take adequate measures to protect residents from Covid.

The Claimants challenged four of the Defendants’ policies in support of their claim:

  • Guidance: Coronavirus (COVID-19) – Guidance on Residential Care Provision – Public Health England – issued by the 1st and 3rd Defendant on 13 March 2020 and remained in force until 6 April 2020. The Claimants alleged this policy “seeded” infection into care homes when the government knew community transmission had been occurring for 2 weeks.
  • Next Steps on NHS Response to COVID- 19’, dated 17 March 2020 (“the March NHSE Instruction”), and ‘COVID-19 Hospital Discharge Service Requirements’, dated 19 March 2020 (“the March Discharge Requirements”). The Claimants alleged the effect of this Policy was to transfer large numbers of infected patients into closed environments with individuals who were most vulnerable to Covid-19.
  • Admission and Care of Patients During COVID-19 Incident in a Care Home’ dated 2 April 2020 (“the April Admissions Guidance”). The Claimant alleged that the Defendants focused on prioritising freeing up hospital beds and failed to consider the risk to care homes. The Defendants strongly refuted the suggestion that the NHS was protected at the expense of older people, but argued the aim was to protect the NHS to ensure all people, including those who were most vulnerable to Covid 19, could access hospital treatment.
  • COVID-19: Our Action Plan for Adult Social Care’ dated 15 April 2020. The Claimants alleged while this policy began a reversal of policies, it was not sufficient.

 

Evidence and Submissions

In its judgment the court gave a very detailed narrative of relevant events, from China informing the WHO on 31 December 2019 of cases of pneumonia of an unknown microbial aetiology, to 1 May 2020. The court considered the content of numerous scientific papers in this period stating:

It is not suggested that Ministers and senior officials should themselves have been keeping on top of the emerging science; but it can be expected that those scientists advising government would do so.

 The court was taken to extensive authorities in respect of both the EHCR challenge (the Claimant contending there was both a system and operational duty owed by the Defendants under Article 2 of the EHCR that was breached) and the Public law claim.

 

Decision

As well as the un-pursued claims, the court held the claims under Article 8 or the PSED added nothing of substance to the claim; their focus was on Article 2 and on judicial review at common law.

Given current headlines on this claim, many would believe that the Claimants had a resounding victory in this matter, in fact they only succeeded on one allegation against the 1st and 3rd Defendant. The claims against the 2nd Defendant were dismissed.

In respect of the EHCR challenge the court held:

  • There was no arguable case that the “systems duty” had been breached by the Defendants.
  • The Defendants did not owe the Article 2 operational duty which the Claimants contended for.

In respect of the Public Law claim the court found:

  • There was no unlawfulness in the contents of ‘Guidance for social or community care and residential settings on COVID-19’. The Defendants did not act irrationally or fail to take into account scientific knowledge when drafting this document.
  • It was unrealistic for the Claimants to say on 13 March 2020 a ban on all visitors to care homes was the only rational course of action.
  • The “sustained attack” on “Next Steps on NHS Response to COVID-19” and, “COVID-19 hospital discharge service requirements” was quite unrealistic. Subject to a point, there was nothing unlawful in this policy. The Government was being advised there was a real risk hospitals would be overrun and they could not wait to see if this advice was over cautious.
  • The Claimants’ allegation that the transfer of patients from hospital to care homes should have been conditional on assessment of each care home to provide safe care was unrealistic – the Government could not sensibly wait for each home to be assessed.
  • The claim the Government should have made provision in March for testing each patient before discharge to a care home was hopeless.
  • The criticism that 15 April 2020 Action Plan did not address the risk of transmission from agency and bank staff was unrealistic, the court highlighting the staff shortages at this time.

Turning to the allegation on which the Claimants were successful, the court found during March it was clear there was a growing awareness of asymptomatic transmission. The Claimants’ case was that the March Discharge Policy (dated 19 March 2020) was irrational as it did not weigh up the benefits or drawbacks of isolating all new entrants to care homes. The Defendants’ response was that to isolate all individuals at this time was unrealistic (such guidance was in fact brought in on 15 April 2020).

The court found this was not a binary choice on doing nothing or quarantining all residents. It found those drafting the March Discharge Policy and April Admissions Guidance (dated 2 April 2020) failed to take into account the relevance of asymptomatic transmission to the elderly and vulnerable residents and failed to make an assessment of balance of risks. It found the policies were irrational in that they should have advised where an asymptomatic patient, from hospital, was admitted to a care home they should be kept apart from other residents for 14 days “as far as practicable”.

 

Consequences

Suggestions have been made that this judgment will open the floodgate of compensation claims against the Government and care homes (and also contribution claims from the care sector to the Government); however, this seems unlikely and those seeking to rely solely on this judgment would not get far. The court was very clear to highlight that this was not an inquest or a public inquiry. The court was focused on the lawfulness of the actions and decisions rather than the outcome of them. It should also be remembered the finding of irrationality was in respect of decisions covering a period of around 26 days from 19 March 2020 – 15 April 2020.

For the Defendants, this judgment could have been significantly worse. The Claimants contended that a variety of decisions were unlawful and the court dismissed these claims; however, 2 big questions do arise:

  • If homes had been given the advice to isolate residents as far as reasonably practicable from 19 March 2020 what would they have done?
  • And secondly, if they would have done something differently what would the outcome have been in terms of Covid-19 infections and deaths, both in residents and staff?

The 2nd question is arguably the more significant and touches on the real difficulties Claimants will face in bringing any claims against the care sector or Government for injuries arising out of Covid-19 infections. Even if Claimants can prove a breach of duty they still have to prove a causal link of infection between someone discharged from hospital and themselves (or their loved ones), which will be incredibly difficult, particularly given the lack of testing at this time and asymptomatic transmission.

On the traditional “but for test” it is difficult to see how Claimants would get home and it will therefore be interesting to see if the courts will be prepared to adopt some increased material contribution test to enable Claimants to get round these difficulties.

More of an issue for the Government will be the exploration of the above questions in the Public Inquiry. While individuals may struggle to prove that a death was caused by this decision, the Inquiry will almost certainly consider what the likely consequence would have been on number of infections and deaths if the advice had been implemented.

 

Helen Pagett, Barrister.



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