Jurisprudence Update: Judicial Review Challenging Government Policies and Guidance During the COVID-19 Pandemic

R (oao) (1) Dr Cathy Gardner (2) Ms Fay Harris v (1) Secretary of State for Health and Social Care (2) NHS Commissioning Board (NHS England) (3) Public Health England [2022] EWHC 967 (admin) (April 27, 2022)

Background

The plaintiffs, Dr. Gardner and Ms. Harris, filed for judicial review (“JR”) following the COVID-19-related deaths of their fathers, Michael Gibson and Donald Harris, in care homes on April 3 and May 1, 2020.

JR has been sued against the Secretary of State for Health and Social Care (D1), the NHS Commissioning Board (NHS England) (D2) and Public Health England (D3).

Broadly speaking, Plaintiffs alleged that Defendants’ actions (and inactions) unnecessarily introduced, or risked introducing, COVID-19 into nursing homes through staff, visitors and new admissions; and that nursing home residents had been put at greater risk of harm as a result. Their position was that the defendants had improperly prioritized the release of hospital beds and “directed the mass discharge of hospitalized patients into care homes without testing, isolation, proper advice regarding PPE or assessment of the care home’s ability to provide safe care”.

Three specific policies were challenged by the Claimants, namely:

  • “The March PHE Policy” (Coronavirus (COVID-19) – Guidance on providing residential care”, March 13, 2020).
  • “The March Exit Policy” (including ‘Next Steps on NHS Response to COVID-19’, 17 March 2020, and ‘COVID-19 Hospital Discharge Service Requirements’, 19 March 2020).
  • “The April Admissions Guide” (“Admission and management of patients during a COVID-19 incident in a nursing home”, April 2, 2020).

decision

JR was heard in the High Court between 14 and 21 March 2022, by Lord Justice Bean and Mr Justice Garnham. The judgment was published on April 27, 2022.

The claimants were partially successful in their JR against the Secretary of State for Health and Social Care (D1) and Public Health England (D3). The complaint against the NHS Commissioning Board (NHS England) (D2) was dismissed, on the ground that the Court held that it was D1 and D3 who were responsible for making the appropriate arrangements for admission to care homes during the COVID-19 pandemic.

The Court recognized that the defendants had to make decisions about a new disease, in the context of uncertain and rapidly changing scientific knowledge, under circumstances of enormous pressure and with practical limitations in the first months of the pandemic. However, although there was no scientific evidence of asymptomatic transmission as of mid-March 2020, experts did agree that it was possible, and the government was considered aware at this stage of the changing picture. proofs.

The Court found that the March Exit Policy and the April Admissions Guidelines”simply did not take into account the very relevant consideration of the risk of asymptomatic transmission for elderly and vulnerable residents”.

The Court held that there was a “significant delay at a critical periodin guidelines recommending testing and a 14-day isolation period for new residents admitted to care homes (whether from a hospital or from the community), with this recommendation not being made until 15 April 2020.

Ultimately, the March Exit Policy and April Admissions Guidelines were judged “irrationalfailing to advise that asymptomatic patients admitted to care homes (other than those who test negative) should be separated from other residents for 14 days, where possible.

Comment

This judgment comes ahead of the public inquiry into the COVID-19 pandemic, chaired by Baroness Hallett, which will examine preparations for and response to the pandemic in the UK, and identify lessons learned. The inquiry’s draft terms of reference, released on March 10, 2022, include pandemic management in care homes and other care settings, infection prevention and control, transfer of residents, treatment and care residents, visiting restrictions and changes to controls.