Covid: High Court ruling on ‘unlawful’ discharging of untested patients to care homes in pandemic explained

Government policies on discharging hospital patients into care homes at the start of the Covid pandemic have been ruled “unlawful” by the High Court.

The ruling came after two women took Public Health England and former Health Secretary Matt Hancock to court.

Dr Cathy Cardner and Fay Harris took legal action after their fathers, Michael Gibson and Donald Harris, died from coronavirus.

What was the discharge policy?

When the pandemic hit in early 2020, patients were rapidly discharged into care homes without testing, despite the risk of asymptomatic transmission, with government documents showing there was no requirement for this until mid-April.

Lord Justice Bean and Mr Justice Garnham concluded on Wednesday (27 April) that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from asymptomatic transmission of the virus.

They said that, despite there being "growing awareness" of the risk of asymptomatic transmission during March 2020, there was no evidence that Mr Hancock, who was Health Secretary at the time, or anyone advising him addressed the issue of this risk to care home residents in England, so it was “not an example of a political judgment on a finely balanced issue”.

The judges said: “Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

The SAGE scientific advisory group said "asymptomatic transmission cannot be ruled out" in early February.

The judges said it was necessary to discharge patients “to preserve the capacity of the NHS” and called the suggestion that the government should have made provision in March for testing each patient before discharge “hopeless”.

But they found it was “irrational” for the government not to have advised that asymptomatic patients should isolate from existing residents for 14 days after admission.

Bereaved families and care groups said the ruling proves the “protective ring” that Mr Hancock said had been put around care homes was “non-existent”, a “sickening lie” and a “joke”.

Has the government responded?

A spokesman for Mr Hancock said Public Health England (PHE) had failed to tell ministers what they knew about asymptomatic transmission and he wished it had been brought to his attention sooner.

The spokesman said the High Court had found he acted reasonably and he had been cleared “of any wrongdoing”, adding that PHE “failed to tell ministers what they knew about asymptomatic transmission” of Covid.

He continued: “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.”

Boris Johnson said he wanted to “renew my apologies and sympathies”, adding: “The thing we didn’t know in particular was that Covid could be transmitted asymptomatically in the way that it was and that was something that I wish we had known more about at the time.”

However, the risks of asymptomatic transmission had been highlighted by health experts including the government’s chief scientific adviser for England, Sir Patrick Vallance, who said this was “quite likely” as early as 13 March.

Varying levels of risk had also been outlined in papers from late January, the ruling said, adding that it would be expected of scientists advising the government to be “keeping on top of the emerging science”.

A government spokesman said it had been a “very difficult decision”, taken when evidence on asymptomatic transmission was “extremely uncertain”.

He said: “We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation, and will respond in more detail in due course.”

What did the families say?

Speaking outside court, Miss Harris, 58, of Alton, Hampshire, said she hoped the judgment will help families who lost loved ones “due to this government’s reckless and unlawful policies”.

She said: “Their actions exposed many vulnerable people to a greater risk of death – and many thousands did die.

“It has only increased the distress to me and many others that the government have not been honest and owned up to their mistakes.”

Dr Gardner, 60, from Sidmouth, Devon, 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 of which he ought to be ashamed and for which he ought to apologise.”

Jason Coppel QC, representing the two women, told the court last month that between March and June 2020 more than 20,000 elderly or disabled care home residents died from Covid in England and Wales.

Charlie Williams, whose father died in a care home in April 2020, was told that nobody in the home had coronavirus but later found out that 27 residents had died from the virus.

Mr Williams, a spokesman for the Covid-19 Bereaved Families for Justice group, said: “We’ve always known that our loved ones were thrown to the wolves by the government, and the claims made by Matt Hancock that a protective ring was made around care homes was a sickening lie.

“We now need to see those responsible for those dark days held accountable and lessons learned to save lives, ensuring the grim scenes of spring 2020 are never repeated again.”