Releasing English hospital patients into care homes ‘not illegal’ – Guardian on Cathy Gardner’s Judicial Review

Releasing hospital patients into care homes without Covid-19 tests was not illegal, lawyers for the UK health secretary, Matt Hancock, have said in a rebuttal of a high court challenge to the government’s handling of the pandemic in care homes.

Dr Cathy Gardner is funding this action through crowd funding.

Robert Booth

Dr Cathy Gardner, who lost her father, Michael Gibson, to Covid-19 in a care home that accepted discharges, claims that Hancock misled the public when he said the government threw “a protective ring” around care homes where more than 16,000 have died across the UK.

Earlier this month, she requested a judicial review of the government’s strategy, alleging that it broke the law. She claimed that Hancock, NHS England and Public Health England “failed to take into account the vulnerability of care home residents and staff to infection and death, the inadequacy of testing and PPE availability”.

Prioritising expanding NHS hospital capacity to deal with critically ill Covid-19 patients was “disproportionate, discriminatory and irrational”, she said.

The government has countered by telling Gardner’s legal team that Hancock and the other defendants took “extensive measures to protect the people who live and work in care homes in response to the risks posed by Covid-19”.

“The challenges arising from the Covid-19 pandemic have been unprecedented,” it said in a response seen by the Guardian. “Those involved in government have been working tirelessly to find the best ways of dealing with these challenges, and taking steps to protect the lives of all those present in the UK.”

It was appropriate, the government said, to adapt policies as new information emerged during the pandemic. “Guidance and other material are often developed at extremely short notice,” it said.

The government specifically denied the claim that it breached obligations under the European convention on human rights to manage risks posed by the virus to care home staff and residents and said the convention must not be used to enforce an “impossible or disproportionate burden on the authorities”.

It denied breaching the NHS Act 2006, which obliges the health secretary to take steps to protect the public in England “from disease or other dangers to health”.

Lawyers for NHS England separately urged the courts to block the legal challenge, saying that while it does not dispute the importance of learning lessons, public interest is not served by “diverting NHS England’s attention and resources from the management of the ongoing response to the Covid-19 crisis to expensive and time-consuming high court litigation”.

Dr Gardner said the responses were “shameful” and that she would continue to press for the judicial review “so that the plight of residents and staff at care homes is not allowed to be given low priority again”.

“There is no acknowledgment of any responsibility, nor is there any explanation as to why hospitals were advised to discharge patients into care homes without testing,” she said. “Patients with a positive Covid test were even discharged from hospital back to care homes without consideration of the consequential risk.”

It was only on 15 April, after the death toll peaked, that the government committed to testing all people being discharged from hospitals into care homes prior to admission.

On 15 May, Hancock told the daily Downing Street briefing that “right from the start we have tried to throw a proactive ring around our care homes”. Dr Gardner said this claim made her “very angry” as she believed it was “simply not true”.

Her 88-year old father died on 3 April at a care home in Oxfordshire.