Court finds Government's Covid policy in care homes unlawful

In R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin) the Divisional Court has found that arrangements by the Department of Health for discharging patients from hospitals to care homes during the pandemic were unlawful.

Key points

• Article 2 of the European Convention on Human Rights (ECHR) (the right to life) contains both a ‘systems duty’ and an ‘operational duty’. The systems duty requires the state to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty requires the state to take practical steps to safeguard people’s right to life from specific dangers where there is a link to the state’s responsibility.
• A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty. The duty may exist even in the absence of an assumption by the state of responsibility, where it has become aware of dangerous situations involving a specific threat to life. In appropriate circumstances the operational duty may also arise where the state engages in activities which it knows or should know pose a real and immediate risk to the life of a vulnerable individual or group of individuals.
• The implementation of protective measures in relation to care homes during the pandemic did not trigger state responsibility under Article 2 or Article 8 (the right to respect for private and family life) of the ECHR.
• In considering whether the decisions made and the policies promulgated by a public body are unlawful by the standards of public law, the Court has to consider the facts as they were presented at the time to the decision makers. The Court must ask whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

Background

The daughters of two care home residents who, along with 20,000 others, died of COVID-19 in a care home in England in April and May 2020 (the Claimants) brought a claim for judicial review against the Secretary of State for Health and Social Care (SoS), NHS England (NHSE) and Public Health England (PHE) (the Defendants) in relation to four policies issued between 13 March and 15 April 2020.

Judicial review was sought on three grounds:

• Breaches of the Claimants' fathers’ rights under Article 2 and Article 8 of the ECHR (the ECHR claims).
• Unlawfulness, on the basis of failure to take into account relevant considerations, failure to conduct a sufficient enquiry, taking into account irrelevant considerations, irrationality and breach of the duty of transparency (the public law claims).
• Breaches of the public sector equality duty under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination (the PSED claim).

The four policies under challenge included the March Discharge Policy, which comprised two policies dated 17 and 19 March 2020 relating to arrangements for discharging patients from hospitals to care homes without testing and isolation, and the April Admissions Guidance dated 2 April 2020, which advised that symptomatic or asymptomatic COVID-19 patients could be safely cared for in a care home.

Judgment

Unanimous judgment was given by two judges (Bean LJ and Garnham J) sitting as a Divisional Court.

ECHR claims

The Claimants submitted that the Defendants had a positive obligation to take appropriate steps to safeguard the lives of those within England and do all that could have been required to prevent life from being avoidably put at risk. They alleged that both the ‘systems duty’ and ‘operational duty’ applied and were breached by the Defendants during the first wave of the pandemic. The systems duty required the Defendants to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty required the state to take practical steps to safeguard people’s right to life from specific dangers in circumstances where there was a link to the state’s responsibility.

The Court rejected the ECHR claims in their entirety. In relation to the systems duty, the Court dispensed with the Claimants' arguments that the Defendants breached their duty to put in place a legislative and administrative framework; on the contrary, the complaint concerned the contents of the policies implemented.

In relation to the operational duty, the Court concluded that any acceptance of the argument that protective measures relating to private sector care homes involved a sufficient connection or link with the state would significantly widen the scope of the Article 2 operational duty owed to potentially very large numbers of elderly people. Strasbourg authority did not support the extension of the duty to "as broad and undefined a sector of the population as residents of care homes for the elderly" and the Court doubted that the European Court of Human Rights would be willing to declare such a duty.

Public law claims

The Court held that the decision to issue the March Discharge Policy and the April Admissions Guidance was irrational in that the Policy and the Guidance failed 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 public law claims against NHSE were dismissed on the basis that it was not responsible for making such arrangements.

Public sector equality duty

The PSED claim was dismissed on the basis that in the "highly pressured" circumstances of March and April 2020, the Government could not be reasonably criticised for failing to carry out an equalities impact assessment of its policies relating to care homes, nor did the PSED add anything to the Defendants' duties under common law.

Comment

The Court's judgment is a noteworthy development in the growing body of litigation regarding Government decision making during the pandemic. In considering the claim the Divisional Court recognised that the Defendants had to make judgments in circumstances of enormous pressure, in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. The case however turned on a clear-cut failure to take into account highly relevant considerations regarding the risks of non-symptomatic transmission of COVID-19, which by mid-March 2020 had been acknowledged by the Government in Parliament and in the media.

A further point of interest is the Court's approach to deficiencies in the witness evidence presented by the SoS, with the Court declining to resolve disputes of fact in favour of the Defendants. It held that "where there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration". Even in the exceptional circumstances of a pandemic, maintaining a thorough paper trail of decision-making remains critical for the purposes of defending a judicial review.