Open Democracy features Dr Cathy Gardner’s judicial review

Did we abandon our most vulnerable old people to COVID-19?

It is fortuitous that this review of the Governments mis-handling of care homes at the beginning of the Covid-19 crisis coincides with the publication of the damning Public Accounts Committee report (already posted by Owl).

“Unexpectedly, perhaps, a wholehearted public commitment to fundamental reform of the care system in Britain has come from the chief executive of NHS England, Sir Simon Stevens. He told the BBC that COVID-19 had shone a “very harsh spotlight” on the resilience of the care system. The pandemic should be used to give momentum to a total overhaul of social care, he said.”…..

…Such an outcome would be cherished by Cathy Gardner and Fay Harris. As their lawyer, Paul Conrathe, put it: “This casts a light on dark corners. It will expose the lack of priority and planning given to the care sector and the need for a more proactive strategic approach in future to protect the most vulnerable.”

Cathy Gardner’s legal action is being crowd-funded. Let’s hope her courage in taking this action may be influencing opinion.

The high death toll from COVID-19 in care homes has unleashed a “tidal wave of grief” from all over Britain, according to the human rights lawyer who is leading a landmark challenge against the Government.

The legal action claims the state violated the fundamental right to life of thousands of the most vulnerable old people in our society. It accuses the Health Secretary, NHS England and Public Health England of failing to protect residents and staff in care homes.

COVID-19 has already claimed the lives of 20,000 care home residents in England and Wales – one in 20 of the old people who live in nursing homes. Some researchers believe this official figure is an under-estimate.

Now health campaigners and leading charities are demanding a fundamental reform of social care and tougher laws to combat age discrimination.

In Brussels, meanwhile, trade union leaders and MEPs have backed calls for a Europe-wide investigation into the “silent tragedy” of care home deaths during the COVID-19 pandemic.

‘What were they doing to protect care homes?’

At the heart of the legal challenge to the British Government is the case of Dr Cathy Gardner, whose father Michael Gibson died from “probable COVID” in his Oxfordshire care home on the 3rd of April. Shortly before his death, a patient who had tested positive for COVID-19 was discharged from hospital into the same care home.

Dr Gardner – who has a PhD in virology – told openDemocracy: “The rush to clear NHS beds threw the care homes under a bus because nowhere in the guidance about discharging from hospitals does it give any consideration to care homes. What were they doing to protect care homes? Nothing! When you go through the evidence you are left with the thought that this is deliberate.”

Her lawyers are seeking a judicial review of the way in which COVID-19 was handled in care homes. openDemocracy has been given access to the 95-page application for judicial review. In the next few weeks, a judge will rule on whether the case should go ahead.

Dr Gardner has decided to press on with her legal challenge after what she called a “shameful” initial response from the Health Secretary, NHS England and Public Health England. “The defendants have failed to engage with my concerns, failed to disclose relevant documents and have sought to hide behind procedural objections. This is a shameful reply when thousands of very vulnerable people have lost their lives, leaving me and many others bereaved.”

A public appeal on Crowd Justice, the crowd funding platform specialising in legal issues, has raised over £85,000 in support of Dr Gardner’s campaign.

The lawyer leading the case, Paul Conrathe, said the state had violated the most fundamental human rights of elderly and disabled people in care homes.

He told me: “The thing that is deeply disturbing is if you stand in the shoes of the old person. You are dependent on your carers. You’re locked in your home. More than anyone else in the country, you are powerless. The state that is there to protect you then unleashes the floodgates into your place of safety and you have no ability to do anything about it. That is profoundly disturbing and it has brought an outpouring of grief from all over the country. It’s hard to believe this could happen.”

Joining Dr Gardner in her legal challenge is Ms Fay Harris, whose father Donald Percival died on 1st May after COVID-positive patients were discharged from the NHS into his care home.

‘It could have been done more humanely’

Professor Sir Brian Jarman – one of Britain’s foremost experts in evaluating death rates in health care – has been researching one crucial week in the story of how care homes coped with coronavirus.

On Tuesday 17th March, NHS England sent out a letter urging all hospitals to “free up the maximum possible inpatient and critical care capacity”. The letter said NHS trusts must “urgently discharge all hospital in-patients who are medically fit to leave”.

But at the time, nurses and doctors had no guidance or rules on whether they should test patients for COVID-19 before they left hospital.

Professor Jarman uncovered data showing that in the same week ending Friday 20th March, cases of acute respiratory illness in care homes in England were already rising very steeply just as hospital staff were sending untested patients back into homes.

He told me: “They took the decision to discharge patients possibly with COVID to care homes that didn’t have PPE. They must have known that care home residents and staff were unprepared. The data published by Public Health England showed they were already aware of the outbreak of severe respiratory disease in care homes. They knew! They monitored it. And they still went ahead knowing what was happening.”

Professor Jarman said the much-publicised Nightingale Hospitals could have been partly adapted as isolation units for COVID-positive old people in that crucial month from 17th March to 16th April. Instead, they remained almost empty. Many doctors and nurses on standby to staff them were never called in.

“It could have been done another way, a much more humane way, if you wanted to save the elderly.”

NHS England has since released figures showing that just over 25,000 patients were moved from hospitals into care homes between 17th March and 16th April, a period when testing was still not widely available. It was also a time when the care sector gave a series of warnings saying homes were poorly prepared for the pandemic and still desperately short of protective equipment for staff.

‘Focus upon the NHS’

Dr Cathy Gardner and Professor Brian Jarman are far from alone in their concerns about how care homes are surviving the coronavirus pandemic.

A few days after Dr Gardner’s father died, homes in the Torquay area of Devon refused to take hospital patients who had tested positive for COVID-19. “That would be tantamount to importing death into care homes,” said Graham Greenaway, owner of the Warberries Nursing home. “Asking us to take COVID-positive patients is asking us basically to make out a suicide note for people in care.”

Professor Martin Green, chief executive of Care England, told MPs that ministers had abandoned care homes in their scramble to save the NHS. Many homes did not have the right set-up to isolate patients coming from hospital, he said. “We also had the disruption to our supply chains for PPE [personal protective equipment]. And we saw people being discharged from hospital when we didn’t have the testing regime up and running.”

Professor Green was speaking to MPs at the House of Commons Health and Social Care Committee on 19th May. The next day, Justice Secretary Robert Buckland admitted the Government had prioritised the NHS over social care early in the COVID outbreak. He told Sky News: “We needed to make a choice about testing. We decided to focus upon the NHS.” Pressed on whether it had been government policy to focus on the NHS “first and foremost” over care homes, he said: “That’s right and I think that was absolutely essential.”

Mr Buckland said there had been “huge issues” in adult social care and added: “We’ve seen a huge tragedy in our care homes, which is a great regret.”

Govt ‘constantly learning about virus’

In response to Dr Cathy Gardner’s legal action, the Department of Health and Social Care said it had taken “extensive measures to protect the people who live and work in care homes in response to the risks posed by COVID-19”.

The Health Secretary Matt Hancock repeatedly told MPs that he had “made social care a priority from the start”. Care homes had done “amazing work” during the crisis, he said. The government had been “constantly learning about this virus from the start and improving procedures all the way through”.

Mr Hancock said ministers had done everything they could to protect care homes and had thrown a “protective ring” around them. Nearly two-thirds of care homes had not seen coronavirus outbreaks.

‘A human, social and ethical tragedy’

The COVID crisis in care homes is not confined to Britain. Throughout Europe and the USA, between 40 and 60 percent of all COVID-19 victims are residents of nursing homes.

Sweden’s minister for health and social affairs, Lena Hallengren, said: “We failed to protect our elderly. That’s a failure for society as a whole. We have to learn from this. We’re not done with this pandemic yet.”

According to Professor Geffrey Pleyers, a sociologist at the University of Louvain, Belgium had decided that the lives of old people in care homes counted for much less than those of “active” people. “It is a human, social and ethical tragedy that asks us countless questions.” He added: “With the residents of nursing homes, we have also forgotten the people who care for and feed them. They often worked without any protection and today many are infected with the coronavirus.”

More than 100 MEPs from across the political spectrum have described the treatment of care homes during the COVID-19 pandemic as a silent tragedy. “These are places where residents and workers have often been exposed to great risks without appropriate safeguards.”

In Italy, people talk instead about a “silent massacre”, a phrase derived from reporting on human rights abuses in South America. A picture is worth a thousand words – local media in Lombardy ran photographs of a chapel in an old people’s home filled with coffins instead of pews.

When soldiers were called in to help disinfect nursing homes in Spain, they found some residents left dead in their beds, the staff having fled in fear of the virus.

Even in Germany, the Red Cross says care homes across the country are suffering from a lack of protective clothing and disinfectant, which is contributing to the spread of the virus. Prosecutors in the northern city of Wolfsburg are investigating a care home on charges of death through negligence.

At the same time, only 0.4 per cent of care home residents in Germany have died of COVID-19. In England and Wales, the figure is 5.3 per cent, according to research from the London School of Economics. In other words, care home residents are 13 times more likely to die in England than in Germany.

Across Europe, said the Irish Times, the toll of coronavirus was worsened by structural weaknesses in elderly care, which had become a “fragmented and peripheral sector” overlooked in the initial scramble to save hospitals. “From Italy to Sweden, working conditions made it hard to stop the spread of the disease.”

As the American news network CNN put it: “The world sacrificed its elderly in the race to protect hospitals. The result was a catastrophe in care homes.”

‘Don’t waste this crisis’

Slowly but emphatically, the clamour for fundamental reform of elderly care is growing across the western world.

The UK has 12 million people aged 65 and over, according to the last census. In England and Wales, nearly 300,000 of them live in care homes.

Dr Joan Costa-Font, a health policy specialist at the London School of Economics, believes the COVID-19 crisis reveals how little we value old age. “The under-funded system of long-term care services has turned nursing homes into ‘death homes’. And when faced with the need of critical health care, they have been given a lower priority. Yet, given that older individuals are an increasing share of our society, and that other pandemics are to come, we are left with the question: should countries revisit their priorities?”

For Bethany Brown, researcher in older people’s rights at Human Rights Watch in New York, the answer is an emphatic: Yes. She told openDemocracy the COVID pandemic had laid bare an everyday ageism that often goes unrecognised. “It’s in the air in off-hand comments such as: Culling the elderly can be good for the bottom line of the economy!” However, she believes this is a defining moment for policy makers around the world to make a change. “There’s a real opportunity to be grasped and I’m encouraged by networks and organisations throughout Europe and the developing world who say, ‘Hang on! Older people have the same rights. They shouldn’t be cast aside.’ I hope we don’t waste this crisis.”

Anna Dixon, CEO of Britain’s Centre for Better Ageing, agreed: “COVID has provided a catalyst for positive radical change that perhaps was not thought possible before and has perhaps shone a spotlight on the terrible state of our social care system. We hope that will galvanise change.”

“If any good is to come from this, we must use this as a moment to resolve once and for all how to properly resource and reform the way social care works in this country.”

Sir Simon added: “I would hope by the time we are sitting down this time next year on the 73rd birthday of the NHS that we have actually, as a country, been able to decisively answer the question of how are going to fund and provide high-quality social care for my parents’ generation.”

Such an outcome would be cherished by Cathy Gardner and Fay Harris. As their lawyer, Paul Conrathe, put it: “This casts a light on dark corners. It will expose the lack of priority and planning given to the care sector and the need for a more proactive strategic approach in future to protect the most vulnerable.”

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