The government broke the law by sending COVID-19 patients to nursing homes, the High Court ruled amid accusations of ministers of “calling neglect” of vulnerable people.
The Department of Health and Human Services (DHSC) said it had installed a “protective ring” around nursing homes during the pandemic.
However, on Wednesday, High Court judges ruled that the government’s policy of discharging patients from hospitals to nursing homes at the start of the pandemic was “illegal” because it “failed to take into account” the risk to elderly and vulnerable residents from asymptomatic transmission of Covid.
They said that despite “growing awareness” of the risk of asymptomatic transmission during March 2020, there was no evidence that Matt Hancock, then Secretary of Health, considered the risk of such transmission to nursing home residents.
The case was brought by Drs. Kathy Gardner and Faye Harris, whose fathers, Michael Gibson and Donald Harris, died after testing positive for the coronavirus.
“One of the most egregious political failures of modern times”
Jason Koppel QC, a lawyer representing the two women, told Lord Justice Bean and Mr Justice Garnham that between March and June 2020, more than 20,000 elderly or nursing home residents with disabilities died from Covid in England and Wales.
Mr. Koppel said that Dr. Gardner’s and Miss Harris’ fathers were part of that “fee.”
“The nursing home population is known to be particularly vulnerable to death or serious harm from Covid-19,” Mr Koppel wrote.
“The failure of the government to protect him and the positive steps taken by the government that brought Covid-19 infection into nursing homes represent one of the most egregious and damaging political failures of the modern era.”
He told the judges: “This number of deaths should not have been and should not have been.
“Taken together, the various policies were a recipe for disaster, and the disaster happened.”
Lawyers representing Sajid Javid, Minister for Health, NHS England and Public Health England disputed the claim that the government acted unlawfully in failing to protect nursing homes.
“Every death is a tragedy”
Sir James Eady QC representing Javid and Public Health England said the women’s claim should be dismissed.
“This is a judicial review of six specific policies adopted early in the pandemic,” he told the judges.
“Evidence shows that the defendants have worked (and continue to work) tirelessly to protect the public from the threat to life and health posed by the worst pandemic in living memory, and were especially committed to protecting nursing homes and their residents. “
He added: “The legality of the contested decisions must be assessed in the context of the unprecedented challenge faced by the government and the National Health Service at the time, in particular in March and April 2020.”
Eleanor Grey, QC representing NHS England, also argued that the suit should be dismissed.
A government spokeswoman said in a statement before the court: “Every death is a tragedy and we have worked tirelessly to protect the public from the threat to life and health posed by the pandemic, and have specifically sought to protect nursing homes and their residents.
“We have committed billions of pounds to support the sector, including infection control and prevention, free personal protective equipment and priority vaccinations – with the vast majority of eligible medical staff and residents now vaccinated.”
Following the decision, the GMB union said the government had shown a “calling disregard” for nursing homes.
“Gross disregard for residents and employees of nursing homes”
Rachel Harrison, GMB National Care Officer, said: “Today’s decision is a terrible reminder of the callous disregard the government has shown to nursing home residents and workers.
“The transfer of unscreened outpatients to closed facilities, where caregivers were denied access to proper personal protective equipment and even sick pay, has always had tragic consequences.
“GMB members looked after their beloved residents as they died from this terrible virus, all the while worrying about their safety and how they were going to pay their bills.
“If anything good comes out of this pandemic, it must include urgent reform of the sector.”