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Yesterday the High Court delivered its much anticipated judgment in the case of Gardner v. Secretary of State for Health and Social Care (1), NHS Commissioning Board (NHS England) (2) and Public Health England (3).
The plaintiffs, Dr Cathy Gardner and Ms Fay Harris, had sought judicial review of the government’s early response to COVID-19, particularly in relation to the referral of COVID-19 positive patients to care homes. The High Court found that although it took place in very difficult and trying circumstances, only the first and third defendants (namely the Secretary of State for Health and Social Care and Public Health England) had breached the law by referring patients from NHS facilities to care. houses.
These patients were deemed “medically fit for discharge” and had no recognized symptoms of COVID-19 at the time of discharge from hospital. However, government guidance from early April 2020 stated that no negative COVID-19 test was required. Unfortunately, these patients either had asymptomatic COVID-19, had not yet shown symptoms, or caught COVID-19 once in the care home.
Of course, not only residents were affected, but nursing home staff also contracted the virus and, sadly, some of these staff lost their lives to COVID-19.
Although not discussed directly or addressed in yesterday’s judgment, PPE for care homes was also in short supply at present globally, with resources in the UK being redirected to the NHS, which of course exacerbated the potential for transmission of the virus within care homes.
Response from Matt Hancock
Families of loved ones who died of COVID-19 in care homes early in the pandemic spoke to the press, and their anger is largely directed at Matt Hancock, the former Health and Business Secretary social. In March 2020 Mr Hancock had spoken of throwing a ‘ring of protection’ around care homes, but in fact it appears the ring of protection was focused on the NHS, possibly because of reports and d images of overwhelmed Italian health services in February 2020.
Mr Hancock yesterday issued a statement expressing sympathy for the families and saying he was dependent on the advice of the former Public Health England, which did not highlight the role of asymptomatic transmission of COVID-19. That approach was echoed by the prime minister during Prime Minister’s Questions this week, who said the government was unaware the virus could be transmitted asymptotically at the start of the pandemic. However, the judgment reveals that asymptomatic transmission was certainly being discussed at this time by government medical advisers – for example, Sir Patrick Vallance made public comments about it as early as March 13, 2020, and asymptomatic transmission of similar coronaviruses is generally recognized within the medical community. .
The applicants were not entirely successful – their claims of violation of Article 2 of the ECHR (right to life) and Article 8 (right to respect for family and private life) were not not successful.
We anticipate that this judgment and the resulting publicity may encourage civil lawsuits against the government. In addition, private providers may also face other claims. Care homes were of course not mandated to take in patients discharged from hospital, although they were under heavy pressure to do so by the government.
Some homes refused to take in patients and closed in March 2020. Homes that took in discharged patients could face scrutiny and complaints from families who now realize their member family may have contracted COVID-19 as a result. Politics. However, in the absence of specific knowledge to the contrary, it seems unlikely that the Court will find care providers negligent if they followed government guidelines.
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