Charity applies for judicial review over 14-day isolation rule

June 10, 2021

The charity, John’s Campaign, has applied for permission for judicial review of the Department of Health and Social Care (DHSC) guidance, which includes the 14-day isolation requirement.

In line with the DHSC’s guidance, care providers are required to ensure that any resident on admission to a home or on return from an overnight visit has the 14 days’ isolation. The DHSC has insisted in correspondence with John’s Campaign’s lawyers, Leigh Day, that the 14-day isolation requirement is not mandatory.

However, the Care Quality Commission (CQC) has repeatedly stated that the regulator expects care homes to fully comply with Government guidance.

The application for permission for judicial review was filed at the High Court on Wednesday 9th June.

John’s Campaign says the guidance ‘makes it likely that care providers will falsely imprison care home residents contrary to Article 5 ECHR, either by not permitting them to make visits out of the care home at all or by imposing on them a 14-day isolation requirement on return without any legal basis.’

The charity also argues that the necessary individualised assessment for admission or overnight visits will not be carried out by providers because the guidance appears to be received as mandatory.

The Relatives and Residents Association (R&RA) has offered its full support. Director of the R&RA, Helen Wildbore, told CMM that they believe the Government ‘abandoned’ older people in the ‘most appalling way’. Commenting on the Government’s roadmap, Helen Wildbore said, ‘Less than two weeks until the final step of the Prime Minister’s roadmap, care home residents face prison-like isolation. This policy must be urgently amended and a strategy for re-opening care homes published.’

The grounds for the application have been submitted along with several case studies compiled by John’s Campaign. The case studies imply that the isolation period has resulted in ‘serious and irreversible decline’ in some care home residents and suggests that the isolation period has led family members to refuse respite care or keep their loved one at home (rather than in the care home) for longer than would normally be the case, in order to protect them from the detrimental effects of the isolation requirement.

The case studies are extracts from a booklet, The Holding Pen, published this week by John’s Campaign.

Leigh Day solicitor Carolin Ott said, ‘Our client John’s Campaign argues that change to the DHSC's guidance is urgently needed to enable care providers to manage overnight trips out of, and admission into, care homes safely and in a manner that takes account of particular circumstances of their residents. We have heard from providers and managers that the guidance creates further stress and tension when they have already experienced great challenges throughout the pandemic. The DHSC's guidance needs to provide clear advice for care providers on how to meet their legal obligations and any reference to a blanket isolation requirement at odds with those legal obligations should be removed.’

Rights for Residents supports John’s Campaign in its action. The campaign group told CMM, ‘The inhuman isolation when moving into care or after a hospital stay for 14 days exposes the total lack of understanding from those writing the guidance. The horrific and often irreversible effect this has on our loved ones is heart-breaking and must end now.’

John’s Campaign is crowdfunding its legal case and sales of its booklet are also helping to meet legal costs.

Visit the Leigh Day website for more information and case study comment.

In the May issue of CMM Magazine, Director of R&RA, Helen Wildbore, said we must end isolation in care and avoid closed cultures becoming a lasting legacy of the pandemic.

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