Case Note – Judicial Review of Covid-19 care home policy: Gardner & Harris v Secretary of State for Health and Social Care & Ors [2022] EWHC 967 (Admin)

26 July 2022

After over two long years of life under the shadow of the Covid-19 pandemic, we can circle back and reflect on our colleague, Sophie Kemp’s predictions in relation to ‘the future public inquiry into Covid-19’ in the light of the High Court judgment Gardner & Harris v Secretary of State for Health and Social Care & Ors [2022] EWHC 967 (Admin).

As anticipated, an inquiry has been launched into the Government’s handling of the Covid-19 pandemic, which will no doubt confront many of the controversies that Sophie outlined at the outset, namely as is relevant here, the discharge of hospital patients into care homes - a policy that led to fatal waves of infections in vulnerable populations. Whilst the inquiry intends to start collecting evidence this year, this is no bar to litigation arising out of the pandemic, and Gardner will almost certainly not be the last high profile case that we hear about.  

The Gardner judgment

In this case, the children of two elderly Covid-19 victims who died in the early pandemic brought claims for breach of human rights and for judicial review against the Secretary of State for Health, the NHS Commissioning Board (NHS England) and Public Health England, to challenge four policies that allowed for residents of care homes to be infected through lack of restrictions on potentially Covid-19 positive individuals coming into contact with them. The main arguments concerned the removal of infected patients from hospitals into care homes. 

The case rested on the claim that the Government lagged behind the growing consensus on asymptomatic transmission, continuing to move asymptomatic Covid-19 patients to care homes when the risks of community transmission were known, and changing the advice far too late. The human rights claim failed, but the court upheld the claimants’ common law claim in part. 

The human rights claim

Article 2 of the European Convention on Human Rights enshrines the right to life, with a raft of responsibilities imposed upon states to ensure protection of human life through various operational and systemic duties. The argument that the government breached their ‘systemic duty’, which requires appropriate legislative and administrative frameworks to be put in place to protect the right to life, was dismissed on the basis that the frameworks were there in the form of guidance.

The ‘operational duty’ requires the state to take practical steps to protect life if there is a link between specific dangers and state responsibility. The claimants argued that the danger was the threat to life imposed by Covid-19 was sufficient to trigger the operational duty under article 2.

The court however, found that whilst a real and immediate risk to life is necessary, it is not sufficient to trigger the operational duty. The court made the following statements, following a review of earlier authorities:

  • Broadly, the operational duty will arise where there is an assumption of state responsibility for the person, as is the case for prisoners, immigration detainees and those detained under the Mental Health Act;
  • In addition, the operational duty may arise in circumstances where the state becomes aware of dangerous situations that give rise to a specific threat to life, for example following industrial hazards, natural disasters, or appalling conditions in residential care facilities of which the authorities have become aware;
  • The operational risk may also arise where the state engages in activities which they know or ought to know pose a real and immediate risk to the lives of those in vulnerable groups. 

The court found, however, that there is no authority which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined a sector of the population as residents of care homes for the elderly. Accordingly, it concluded that the defendants did not owe the Article 2 operational duty which had been claimed.

The judicial review claim

In considering the judicial review claim, the court reminded itself that they were considering whether the decisions made and the policies promulgated were unlawful by the standards of public law. In turn, this meant considering the facts as they were presented at the time to the decision makers, and not exercising hindsight. Given that context, did the decisions taken fall outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing?

In answering that question, the court recognised that the Government was having to make judgements in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. It was doing so in circumstances of enormous pressure where the matters at stake were of the utmost gravity. Furthermore, in the early months of the pandemic the options available to the Government were constrained by practical limitations as well as scientific uncertainty. The obvious example was the worldwide shortage of PPE in the early months of the pandemic and the worldwide competition for what little PPE there was.

Against this background, and bearing in mind the understandable concern that intensive care capacity in hospitals would be overwhelmed (as had been the case in Italy) the court upheld the Government’s primary decisions about the transfer of patients, but it went on to conclude that the Government’s failure to adequately plan for the best way to manage those who had been discharged was defective. By mid March 2020 while there was no scientific proof that asymptomatic transmission was occurring, it was well recognised by the experts that such transmission was a real possibility. That in turn should have prompted a change of Government policy concerning care homes earlier than it did and in particular it should have ensured that all discharged patients were isolated until all risk of transmission of infection had passed. Accordingly, the court found that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.

Conclusions

The court was sympathetic to the difficulties facing government decision makers who were navigating novel scientific knowledge under a huge amount of pressure. No doubt they were also mindful of the floodgates that could be opened if an overly critical view had been taken in relation to policy, which will, in any event, likely fall under the remit of the Covid-19 inquiry.

That having been said, the partial finding of unlawfulness of guidance documents issued during the course of the pandemic can give claimants hope that there is a baseline of accountability that the courts are willing to uphold and that the rhetoric of acting in ‘unprecedented times’ is not a blanket defence for unlawful judgement calls. 

FURTHER INFORMATION 

If you have any questions, please contact Rosie Gibson in our Public Law team.

 

ABOUT THE AUTHORs

Rosie is an associate in Kingsley Napley's public law team. She joined Kingsley Napley in 2016 as a paralegal in the Regulatory department. She subsequently worked in the Criminal Litigation department before starting as a trainee in September 2019. Rosie has now completed her training contract and fully qualified as a solicitor in September 2021.

Rory is a trainee solicitor in the Public Law team. He was with the Real Estate and Construction team, where he assisted the team in residential and commercial property and construction matters; and his second seat was with the Dispute Resolution team. Rory’s third seat was spent on secondment at the in-house legal team at Ofgem, where he was involved in a wide range of regulatory and legal matters concerning the energy system in Great Britain.

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