Covid guidance on discharge of hospital patients to care homes in early stage of pandemic unlawful, High Court rules

In Gardner & Anor, R (On the Application Of) v Secretary of State for Health and Social Care & Ors [2022] EWHC 967 (Admin), Lord Justice Bean and Mr Justice Garnham found that government policy in March and early April 2020 was “irrational” because it failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission.

The two claimants, whose fathers both died of Covid-19 in care homes in early 2020, brought their claim for judicial review against the Secretary of State for Health and Social Care, NHS England and Public Health England.

They alleged that certain policy documents issued by the defendants in late March and early April 2020, and the policy decisions recorded in those documents, constituted breaches of their relatives' rights under the European Convention on Human Rights, or alternatively were irrational as a matter of domestic common law.

On 17 March 2020, the Government published the first element of its discharge policy, Steps on NHS Response to COVID-19, before publishing a further document dated 19 March 2020, COVID-19 hospital discharge service requirements.

These were criticised by the claimants on several grounds: failure to consider the safety of care home residents; failure to make transfer of patients from hospital into care homes conditional on an assessment of the ability of each care home to provide safe care; and failure to provide for the testing of each patient before discharge to a care home.

On 2 April 2020, further admissions guidance was published, which stated: "Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed. If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. ... Negative tests are not required prior to transfers/admissions into the care home."

This policy was also criticised by the claimants.

Policy recommending both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community, was not issued until 15 April 2020.

Counsel for the claimants suggested that all patients discharged from hospital pursuant to the March Discharge Policy should have been kept in a quarantine facility for 14 days before being permitted to enter a care home. The Defendants' response was that this was unrealistic; the facilities did not exist to provide this service for all those discharged.

However, in the court's judgement, this was not a binary question. "The 19 March document could, for example, have said that where an asymptomatic patient (other than one who has tested negative) is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days," the judge said.

The judges said that since there was no evidence that the Secretary of State considered this question or that he was asked to consider it, "it is not an example of a political judgment on a finely balanced issue".

They added: "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 judges said that a recommendation to maintain a policy of isolation only "so far as practicable" would not have created any difficulties with staffing, as the defendants argued.

"In our judgment, such a provision could and should have been included by the [Secretary of State for Health and Social Care] and [Public Health England] in the March Discharge Policy. Furthermore, if it was not included on 19 March, it could and should have been included in the Admissions Guidance of 2 April."

Even though the provision was included in the 15 April guidance, the judges said this was a "significant delay at a critical period".

The judges added: "We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks."

The claim succeeded against the Secretary of State and Public Health England in respect of both the March Discharge Policy and April Admissions Guidance documents. 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".

The claim against NHS England and the claims under the Human Rights Act 1998 were dismissed.

A spokesperson for the Department of Health and Social Care said: “Our thoughts are with all those who lost loved ones during the pandemic.

“Throughout the pandemic, our aim has been to protect the public from the threat to life and health posed by COVID-19 and we specifically sought to safeguard care home residents based on the best information at the time.

It added: "This was a wide ranging claim and the vast majority of the judgement found in the government's favour.

"The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.

“The court recognised we did all we could to increase testing capacity. 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."

Adam Carey