UK: High Court meets again in historic judicial review
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For the past six days, the High Court has convened again to hear the judicial review of Gardner v Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England.
The defendants were accused of failing in their duty to keep care home residents safe by prioritizing the goal of getting extra capacity in hospitals by transferring patients to care homes. It was also alleged that they continued to fail in their duty by encouraging care homes to follow a symptom-based approach in their published guidelines, even when science suggested that asymptomatic people could transmit the disease. These decisions were made during a critical time and involved a known vulnerable population that resulted in more than 20,000 deaths.
Mr Eadie QC, charged by the defendants, reminded the Court that the issue to be considered was whether the defendants had been unlawful in their decision to allow, and sometimes encourage, hospital discharges to be admitted in nursing homes without first being tested for COVID -19. It has come to the Court’s attention that the number of inpatients discharged from hospital and admitted to care homes decreased between March 17 and April 15, 2020 compared to the same period the previous year . While the decrease in the figure was not due to the defendant’s actions, and some outbreaks of COVID-19 in nursing homes were likely caused by the promotion of new admissions encouraged by the defendants, it was interesting to see that there was not an increase in admissions at this time.
The case of the plaintiffs
Mr Coppel QC, who was charged by the claimants through the crowdfunding, claimed the defendants were unlawful in their decision-making because the published guidelines did not follow the scientific evidence at the time. It was accepted that there was no one right solution, but any decision could only be legal if the risks had been sufficiently weighed and the wider implications considered. Due to the lack of an audit trail, Mr Coppel QC tried to persuade the Court that there could not have been a risk balancing exercise and instead the implications for the houses of care accepting untested hospital discharges were not taken into account. Whilst this was taken into consideration and Lord Justice Bean said the weight of evidence would be adjusted accordingly, it was also noted that there was no evidence to suggest that any part of the witness statements was fake.
Mr Coppel QC compared the rates and deaths of COVID-19 in care homes with those of other countries and found that some countries were able to prevent outbreaks in their care homes. However, when inspected more closely by Mr Eadie QC, it was brought to light that this was only happening in countries that had lower rates of COVID-19 in their general population and that the rates nursing homes were comparable to those with general population rates similar to England. Although this does not prove that the decisions taken were correct, it does suggest that the governments of other countries agreed with England’s approach.
The early guidelines recommended a symptom-based approach which suggested that testing and use of PPE was only necessary for symptomatic people and to treat symptom-free patients and new admissions as usual. The guidelines finally began to shift in late April to a more cautious approach, but due to shortages of PPE, care homes were unable to realistically apply these protocols, so it was not still unsure for nursing homes to have new admissions. It was argued that the precautionary protocols were not sufficient when in reality it was known that they could not be applied.
Counsel for the plaintiff suggested that Article 2, the right to life, and Article 8, respect for your private and family life, were both triggered by the government’s failure to put in place sufficient protocols to protect a known vulnerable category. However, for these items to be triggered in the health and social care context, they must fall into one of three established categories. Mr Eadie QC defined each category with its criteria and concluded that he did not believe the current case could fall under any of the categories.
After that ?
While it appeared that the defendants should have provided more precautionary advice to care homes at an earlier stage, it is also important to remember that these were unprecedented times and that the defendants were preparing worst-case scenario based on model predictions. If they are found to have considered all the risks and implications when making their decisions and had a rationale for making those decisions, they are unlikely to be deemed illegal. However, in the absence of evidence to show any risk assessment exercise, it is unclear what the outcome of this judicial review will be. The result should take several months.
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