Virologist whose father, 88, died of Covid in a care home sues the government
By Jack Elsom Martin Robinson, Chief Reporter For Mailonline www.dailymail.co.uk
A judicial review will probe whether the Government failed to protect care home residents from Covid-19 following a legal challenge by two bereft daughters.
A High Court judge today ruled in favour of Dr Cathy Gardner and Fay Harris, who are taking action against Matt Hancock, the NHS and Public Health England for their handling of the crisis.
Dr Gardner argues that the lack of ‘adequate’ measures to protect residents was ‘one of the most egregious and devastating policy failures of recent times’.
She accused the Government of breaching the human rights of thousands of vulnerable people, including her 88-year-old father Michael Gibson, a retired registrar who passed away at the Cherwood House Care Centre in Oxfordshire on April 3.
Ms Harris, 57, also joined the legal fight after her 89-year-old father Don, an ex-Royal Marine, died in May along with 24 residents of his Hampshire care home.
The Government and related health bodies oppose the legal challenge and asked the judge to throw out the case.
But Mr Justice Linden told a remote hearing this afternoon: ‘I consider it interests of justice for the claim to be heard.’
The first-stage victory for the women paves the way for a judicial review that could have huge ramifications for the families of at least 30,000 people who died in care homes with Covid this year
Dr Cathy Gardner with her father Michael, a former registrar, who died in a care home after a resident was brought in with coronavirus after being discharged with coronavirus
Fay Harris, 57, whose father Don, a former Royal Marine, was one of 24 residents of a Hampshire care home who died in May after a Covid-19 outbreak, has also joined the legal action
Mr Justice Linden said that the daughters should be given permission to pursue their case on all grounds, saying it ‘crossed the threshold of arguability’.
Both women are ‘appalled’ by Health Secretary Mr Hancock’s insistence that a ‘protective ring’ had been placed around care homes to shield them during the first wave of the pandemic.
Dr Gardner’s lawyers claimed that prior to her father’s death the care home was pressured into accepting a hospital patient who had tested positive but ‘had no temperature for 72 hours’.
Mr Gibson, a retired superintendent registrar of birth marriages and deaths, was primed to catch the illness despite never leaving the home, they said.
Dr Gardner was so upset that she was forced to say goodbye to her octogenarian father through a care home window and the circumstances before his death that she is suing the government.
Her case accuses the government of unlawfully exposing countless care home residents to substantial risk during the pandemic – and was filed at the High Court in June.
Health Secretary Matt Hancock claimed that a ‘protective ring’ was placed around care homes
Dr Gardner, also chair of East Devon District Council, believes her father’s death was part of a ‘national disgrace’.
The case will be for the benefit of every individual, including care home residents, staff and family members, affected by the government’s course of action, she says.
Dr Gardner says the government opted for a ‘casual approach’ to protecting care home residents, adding: ‘At worst, the government have adopted a policy that has caused the death of the most vulnerable in our society.
‘It is completely unacceptable that this happened and that responsibility has been avoided.’
On her father’s death certificate it said ‘Covid probable’, because he perished before widespread-testing became widespread in care homes.
The government has been met with staunch criticism in relation to its handling of care homes throughout the health crisis, with particular policies allowing patients to be discharged from hospitals into care homes without being tested coming under fire.
Dr Gardner’s case, which will be filed at the High Court on Friday, accuses the government of having exposed care home residents to substantial risk during the pandemic
A letter sent to Mr Hancock in June said Dr Gardner believed that the controversial policies adopted by the Health Secretary, NHS England and Public Health England ‘manifestly failed to protect the health, wellbeing and right to life of those residing and working in care homes’.
The letter also claimed: ‘Their failings have led to large numbers of unnecessary deaths and serious illnesses.
‘In addition, the failings of Government have been aggravated by the making of wholly disingenuous, misleading and – in some cases – plainly false statements suggesting that everything necessary has been done to protect care homes during the pandemic.’
Ms Harris, who has joined the court action, had planned to treat her father Don, a former Royal Marine, to a special sailing trip in his beloved Portsmouth Harbour to celebrate his 90th birthday last month.
She had found a boat adapted to carry people in wheelchairs so he could see the harbour where he was stationed from the sea again.
But days later on May 1 Mr Harris died at Marlfield care home in Alton after an outbreak of coronavirus. Hampshire Court Council said later that a quarter of the 24 deaths there around this period were Covid-related but could have been higher.
His bereft daughter told The Times: ‘Physically my dad was fit and he was well. He always had a smile on his face. When we left him he was mobile. He was strong and he was a fighter. He had Alzheimer’s and had had care problems but he came through them all. He should not have died, he should have been on that birthday trip.’
The Department of Health has said it cannot comment on legal proceedings.
How care homes became the Covid frontline: A timeline of failings
FEBRUARY – SAGE scientists warned Government ‘very early on’ about the risk to care homes
Britain’s chief scientific adviser, Sir Patrick Vallance, revealed in April that he and other senior scientists warned politicians ‘very early on’ about the risk COVID-19 posed to care homes.
He said: ‘So very early on we looked at a number of topics, we looked at nosocomial infection very early on, that’s the spread in hospitals, and we flagged that as something that the NHS needed to think about.
‘We flagged the fact that we thought care homes would be an important area to look at, and we flagged things like vaccine development and so on. So we try to take a longer term view of things as well as dealing with the urgent and immediate areas.’
The SAGE committee met for the first time on January 22, suggesting ‘very early on’ in its discussions was likely the end of January or the beginning of February.
MARCH – 25,000 hospital patients discharged to homes without tests
In March and April at least 25,000 people were discharged from NHS hospitals into care homes without getting tested for coronavirus, a report by the National Audit Office found.
This move came at the peak of the outbreak and has been blamed for ‘seeding’ Covid-19 outbreaks in the homes which later became impossible to control.
NHS England issued an order to its hospitals to free up as many beds as they could, and later sent out joint guidance with the Department of Health saying that patients did not need to be tested beforehand.
Chair of the public accounts committee and a Labour MP in London, Meg Hillier, said: ‘Residents and staff were an afterthought yet again: out of sight and out of mind, with devastating consequences.’
MARCH – Public Health England advice still did not raise alarm about care home risk and allowed visits
An early key error in the handling of the crisis, social care consultant Melanie Henwood told the Mail on Sunday, was advice issued by Public Health England (PHE) on February 25 that it remained ‘very unlikely’ people in care homes would become infected as there was ‘currently no transmission of Covid-19 in the UK’.
Yet a fortnight earlier the UK Government’s Scientific Pandemic Influenza Modelling committee had concluded: ‘It is a realistic probability that there is already sustained transmission in the UK, or that it will become established in the coming weeks.’
On March 13, PHE advice for care homes changed ‘asking no one to visit who has suspected Covid-19 or is generally unwell’ – but visits were still allowed.
Three days later, Mr Johnson said: ‘Absolutely, we don’t want to see people unnecessarily visiting care homes.’
MARCH/APRIL – Testing not readily available to care home residents
In March and April coronavirus swab tests – to see who currently has the disease – were rationed and not available to all care home residents suspected of having Covid-19.
Government policy dictated that a sample of residents would be tested if one showed symptoms, then an outbreak would be declared and anyone else with symptoms presumed to be infected without a test.
The Department of Health has been in control of who gets Covid-19 tests and when, based on UK testing capacity.
MARCH/APRIL – Bosses warned homes didn’t have enough PPE
Care home bosses were furious in March and April – now known to have been the peak of the UK’s epidemic – that their staff didn’t have enough access to personal protective equipment such as gloves, masks and aprons.
A letter sent from the Association of Directors of Adult Social Services (Adass) to the Department of Health saw the care chiefs accuse a senior figure at the Department of overseeing a ‘shambolic response’.
Adass said it was facing ‘confusion’ and additional work as a result of mixed messaging put out by the Government.
It said the situation around PPE, which was by then mandatory for all healthcare workers, was ‘shambolic’ and that deliveries had been ‘paltry’ or ‘haphazard’.
A shortage of PPE has been a consistent issue from staff in care homes since the pandemic began, and the union Unison revealed at the beginning of May that it had already received 3,600 reports about inadequate access to PPE from workers in the sector.
APRIL – Care home deaths left out of official fatality count
The Department of Health refused to include people who had died outside of hospitals in its official daily death count until April 29, three weeks after deaths had peaked in the UK.
It started to include the ‘all settings’ measure from that date and added on 3,811 previously uncounted Covid-19 deaths on the first day.
NOVEMBER – In response to anger over the continued ban on in-person visits, Matt Hancock vows to introduce a testing regime for visitors by Christmas.