Discharging hospital patients to care homes ‘unlawful’

April 27, 2022

Government policies on discharging untested patients from hospital to care homes in England at the start of the COVID-19 pandemic have been ruled unlawful by the High Court today.

Claimants Dr Cathy Gardner and Fay Harris, who both lost loved ones to COVID-19, made the decision to take the former Secretary of State for Health and Social Care, Matt Hancock, to court.

Speaking outside the High Court today, Cathy Gardner said, ‘Matt Hancock’s claim that the Government threw a protective ring around care homes in the first wave of the pandemic was nothing more than a despicable lie.’

The Prime Minister, Boris Johnson, took the opportunity in today’s PMQs to apologise to all those people who have lost loved ones to COVID-19.

In their judgment handed down today, Lord Justice Bean and Mr Justice Garnham found that the decisions of the Secretary of State for Health and Social Care to make and maintain a series of policies contained in documents issued on 17th and 19th March and 2nd April 2020 were unlawful because the drafters of those documents failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission, which had been highlighted by (among others) Sir Patrick Vallance in a radio interview as early as 13th March. The judges found that it was irrational for the Department of Health and Social Care not to have advised until mid April 2020 that, where an asymptomatic patient (other than one who had tested negative for COVID-19) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.

Responding to the High Court care home ruling today, Vic Rayner OBE, CEO of NCF, said, ‘During the first wave of the pandemic it was apparent that people who receive care and support, work in care and deliver care services were not on the Government’s radar. The lack of prioritisation meant that testing, PPE, staffing, funding and research all came too late. The impact of hospital discharge in relation to the spread of COVID-19 within care homes has long been disputed by the Government, but this ruling helps bring a vital clarity to the situation that recognises that people who receive care and support needed more protection and should have been at the forefront of Government decision making, which they patently were not.’

Reacting to the judgment, the Independent Care Group (ICG) said the sector had been badly let down. ICG Chair Mike Padgham said, ‘At the start of the pandemic, care and nursing homes were told to continue as normal as the risk to residents was not high. We were told to keep accepting hospital discharges even though it turned out many were coming into our homes without being tested first.

‘The result was that COVID-19 got into care settings with devastating effect and many lives were lost as the pandemic was merciless when it reached those who were older, frail and with other medical conditions. Even so, the Government was slow to react, continuing to focus resources – in particular, PPE and testing – on NHS settings, rather than care and nursing homes.’

He continued, ‘We were badly let down and the Government did the exact opposite of throwing a protective ring around the sector. Many lives were tragically lost and our thoughts are with their loved ones – we will never forget them. And we pay tribute to the amazing care staff who battled through the pandemic and have been left physically and emotionally scarred by the past two years.’

He said the vital thing now was for lessons to be learned and for the care sector to get the overhaul it needs.

Mike Padgham added, ‘As we digest today’s ruling and emerge from the pandemic, social care deserves the reform it has been seeking for more than a generation. We deserve to see the sector properly funded, merged with NHS care and with a workforce that is properly paid – recognised, respected and rewarded. That is the least we should expect after such a devastating two years.’

Helen Wildbore, Director of the Relatives and Residents Association, had a similar reaction to the ruling, saying, ‘This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent. Older people were abandoned at the outset of the pandemic, let down by the very systems designed to protect their rights. The ruling is very welcome as a first step to justice, but bereaved families will be left asking why more wasn’t done to protect their loved ones and how many lives could have been saved.’

GMB, the union for care workers, has also responded to today's High Court ruling on legal action brought against the Government and health bosses over key policies and decisions made about care homes during the pandemic.

Rachel Harrison, GMB’s National Officer for Care, said, ‘Today's judgment is a terrible reminder of the callous disregard this Government has shown for care home residents and workers. Transferring untested hospital outpatients into enclosed facilities where carers were denied access to proper PPE and even sick pay was always going to have tragic consequences.’

She added, ‘GMB members nursed much-loved residents as they died from this awful virus, while all the while worrying about their own safety and how they were going to pay the bills. If any good is to come out of this pandemic, then it must include urgent reform of the sector. Ministers and employers need to explain how they are going to care for the people who have cared for us.’

In other news, social care organisations and charities have written an open letter to the Secretary of State for Health and Social Care, Sajid Javid, calling on the Government to remove the Cap on Care Costs for Charging Purposes clause from the Health and Care Bill.

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