After more than two long years of living in the shadow of the Covid-19 pandemic, we can go back and reflect on our colleague Sophie Kemp’s predictions regarding “the future public inquiry into Covid-19” in light of High Court judgment Gardner & Harris v Secretary of State for Health and Social Care & Ors  EWHC 967 (administrator).
As expected, an investigation has been opened into the government’s handling of the Covid-19 pandemic, which will no doubt confront many of the controversies Sophie raised at the outset, namely, as relevant here, the release of patients hospitalized in nursing homes – a policy that has led to deadly waves of infections in vulnerable populations. While the inquest intends to begin gathering evidence this year, that won’t preclude litigation stemming from the pandemic, and Gardner certainly won’t be the last high-profile case we hear about.
The Gardner judgment
In this case, the children of two elderly Covid-19 victims who died at the start of the pandemic brought claims of human rights violations and for judicial review against the Secretary of State for Health, NHS Commissioning Board (NHS England) and Public Health England. , to challenge four policies that allowed care home residents to become infected for lack of restrictions on potentially Covid-19 positive people coming into contact with them. The main arguments concerned the transfer of infected patients from hospitals to nursing homes.
The case rested on the claim that the government was lagging behind the growing consensus on asymptomatic transmission, continuing to move asymptomatic Covid-19 patients to care homes when the risks of community transmission were known and changing the advice much too late. The human rights complaint failed, but the court partially upheld the plaintiffs’ common law complaint.
The claim of human rights
Article 2 of the European Convention on Human Rights enshrines the right to life, with a series of responsibilities imposed on states to ensure the protection of human life through various operational and systemic obligations. The argument that the government failed in its “systemic duty”, which requires the establishment of appropriate legislative and administrative frameworks to protect the right to life, was rejected on the grounds that the frameworks existed in the form of directions.
“Operational duty” requires the state to take practical steps to protect life if there is a link between specific dangers and state responsibility. The plaintiffs argued that the danger was the threat to life imposed by Covid-19 was sufficient to trigger operational obligation under Section 2.
The court, however, concluded that while a real and immediate risk to life is necessary, it is not sufficient to trigger the operational obligation. The court made the following statements, following a review of previous precedents:
- Generally speaking, the operational obligation will arise when there is assumption of state responsibility for the person, as is the case for prisoners, immigration detainees and persons detained under the Mental Health Act;
- In addition, operational duty may arise in circumstances where the State becomes aware of hazardous situations that result in a specific threat to life, for example as a result of industrial hazards, natural disasters or appalling conditions in healthcare facilities. for internal beneficiaries of whom the authorities have become aware;
- Operational risk can also arise when the State engages in activities which it knows or should know pose a real and immediate risk to the lives of persons belonging to vulnerable groups.
The Court found, however, that no authority had gone so far as to assert that a state has an operational obligation to take all reasonable steps to prevent the real and immediate risk to life posed by an epidemic or pandemic is not as large and indefinite a sector of the population as residents of care homes for the elderly. Accordingly, he concluded that the defendants were not liable for the Article 2 operational obligation claimed.
The application for judicial review
In considering the application for judicial review, the court recalled that it was considering whether decisions made and policies enacted were unlawful by public law standards. This, in turn, meant considering the facts as they were presented to decision-makers at the time, not taking a step back. In this context, do the decisions taken fall outside the scope of the reasonable decisions which are rightly open to the Government, taking into account the knowledge available at the time and the circumstances existing at the time?
In answering this question, the court recognized that the Government had to decide on a new disease in the context of uncertain and rapidly changing scientific knowledge. He was doing this under circumstances of enormous pressure where the issues at stake were of the utmost gravity. Furthermore, in the early months of the pandemic, the options available to the government were limited by practical limitations as well as scientific uncertainty. The obvious example was the global shortage of PPE in the early months of the pandemic and the global competition for what little PPE there was.
In this context, and given the understandable fear that the intensive care capacity of hospitals will be exceeded (as had been the case in Italy), the court upheld the main decisions of the government concerning the transfer of patients, but it then concluded that the government’s failure to adequately plan how best to deal with those who had been released was flawed. As of mid-March 2020, while there was no scientific evidence that asymptomatic transmission was occurring, it was well recognized by experts that such transmission was a real possibility. This in turn should have led to a change in government policy regarding care homes sooner than he did and in particular he should have ensured that all discharged patients were isolated until there was any risk of transmission of the infection has passed. Accordingly, the court found that the policy set out in each document was irrational in failing to advise that when an asymptomatic patient (other than a patient who tested negative) was admitted to a care home, he should, in where possible, be kept away from other residents for 14 days.
The court was sensitive to the difficulties faced by government policymakers navigating new scientific knowledge under enormous pressure. No doubt they were also aware of the floodgates that could be opened if an overly critical view had been taken of the policy, which will likely, in any event, fall within the mandate of the Covid-19 inquiry.
That said, the partial finding of illegality of guidance documents issued during the pandemic may give claimants hope that there is a basis of liability that the courts are willing to uphold and that the rhetoric to act in “unprecedented times” is not a blanket defense for unlawful judgment appeals.