Care homes, Coronavirus (COVID-19) and the right to life - what might Gardner mean for future claims

Care homes, Coronavirus (COVID-19) and the right to life - what might Gardner mean for future claims

The High Court recently handed down judgment in the highly anticipated case of R (Gardner and Harris) v Secretary of State for Health and Social Care, NHS England and Public Health England [2022] EWHC 967 (Admin). In a lengthy judgment just shy of 300 paragraphs, Bean LJ and Mr Justice Garnham determined that limited aspects of some of the Government’s policies towards care homes at the start of the Covid-19 pandemic were illegal on the basis that they were irrational. However, other aspects of the claim were not made out, and a Human Rights Act claim that the deceased’s Article 8 and Article 2 rights had been breached was dismissed.

This article a) summarises the key facts and aspects of the judgment, b) discusses the court’s approach to the right to life claim, and c) considers how the case may impact the prospects for future claims brought by family members who lost loved ones.

The facts

The Government issued guidance on 13 March, 17 March, 19 March and 2 April 2020, around the start of the COVID-19 pandemic, in respect of care homes. The latter three documents were to the effect that ‘negative tests are not required prior to transfers/admissions into the care home’, and that there was no requirement for any resident discharged back to their care home from hospital to isolate upon arrival. They also contained some guidance with regard to PPE in care homes.

Many family members lost loved ones as a result of COVID-19 infection in the care home setting. Dr Gardner and Ms Harris were two such individuals (‘the applicants’), both of whom lost their fathers (‘the deceased’) in April and May 2020 respectively. Following a crowdfunding exercise they brought a judicial review against the above four government policies. 

They also alleged that the deceased had a right to life, pursuant to Article 2 ECHR, and that this right had been breached by the Government’s failure to protect vulnerable care home residents such as the deceased (to whom Article 2 applies). They argued that both the operational and systemic duties to protect the right to life had been engaged:

'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.' [para 52]

The Government argued that given the evidence and equipment available to it at the time the policies were issued (e.g. a limited number of tests, and – allegedly – a lack of awareness of the potential for asymptomatic transmission), the decisions were entirely reasonable and lawful. It alleged it had relied upon evidence provided by Public Health England in reaching the recommendations contained therein, and that it had had to weigh up a balance of benefits and harms when imposing policies upon vulnerable people.

The decision – the policies were illegal

In short, whilst the court found that the circumstances all parties were dealing with at the time in question were trying and difficult, the policies dated 17/19 March 2020 and 2 April 2020 were illegal (though in a narrow sense, given how widely the claim had been drafted). The April policy stated in respect of new admissions:

'Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed. If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. [...]'

Negative tests are not required prior to transfers/admissions into the care home.

The 17/19 March policy gave similar advice.

The court found that there was no evidence that the Government had considered whether the policies should advise, in addition to this, that ‘where an asymptomatic patient (other than one who has tested negative) is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days’. In the light of a lack of evidence that this was considered, the court considered there had been ‘a failure to take into account the relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission’ [para 289].

Given the loud headlines declaring that the Government’s COVID-19 policies had been found to be illegal within this case, this narrow finding of irrationality might seem to be something of a damp squib. Indeed, other aspects of the claim, including suggestions that the government’s Hospital Discharge Policy to seek to discharge as many patients as possible from hospitals to clear beds in advance of Covid-19 patients, and that the government should have arranged tests for every patient before discharge to a care home, were dismissed as ‘unrealistic’ and ‘hopeless’ [paras 279-284].

The court also noted that the claim that the Government had only relied upon PHE advice in drafting the illegal policies could not be right; its own public health advisors, including Sir Patrick Vallance, had been making comments in public as to the potential for asymptomatic transmission as early as 13 March 2020.

Article 2 – right to life

The claim under the Human Rights Act 1998 failed. The applicants had argued that the state’s operational and systemic duties were engaged in this case, and that it had failed on both fronts. This aspect of the claim has received far less press attention than the more headline-grabbing finding that the Government’s policy was irrational.

Whilst it is unsurprising that the claim that the operational duty was engaged was not successful, given recent case law in this area (in particular Maguire v HM Senior Coroner for Blackpool and Flyde and Others [2020] EWCA Civ 738, which considers whether the operational duty applies to care home residents subject to a Deprivation of Liberty Safeguard), the court dismissed the claim that there was a systemic duty to protect the right to life in only two paragraphs, suggesting it was not even arguable (paragraphs 226-227). 

The Applicants had argued that the situation was comparable to other cases involving ‘naturally occurring phenomena’ where the systemic duty had been found to be engaged e.g. Budayeva v Russia [2014] 59 EHRR 2 [paras 153-155].

The Court applied the principles narrowly, noted that it is a ‘high level structural duty’ [para 226] and situated its brief consideration of the systemic duty in the context of case law developed in respect of claims involving aspects of healthcare (in particular Fernandes de Oliveira v Portugal, 31 January 2019). The problem is that the body of law involving healthcare has largely been developed in the context of medical negligence, which is, in the author’s view, quite different from the context of these particular circumstances. 

In fact the court in Lopes de Sousa Fernandez v Portugal (2017) 66 EHRR 28 (another medical negligence case, also cited in Gardner at para 239) noted that whilst the systemic duty was not engaged in that case ‘the court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to the medical treatment of people deprived of their liberty or of particularly vulnerable persons under the care of the state, where the state has direct responsibility for the welfare of those individuals’ [para 163].

The subject of this claim was a collection of pivotal national policies that were designed to protect vulnerable persons during a global pandemic, and which the court itself found were (albeit in a limited sense) both defective and irrational; given the importance of Article 2, it is also somewhat surprising that they did not at least consider the question of whether this amounted to a systemic breach in more detail.

More information on when the systemic and operational duties under Article 2 are engaged can be found in Coroners’ Investigations and Inquests.

What does this mean in terms of civil claims brought by families?

Claims for deaths as a result of Covid-19 caught in a care home setting will be being contemplated by many relatives who have lost loved ones.

There are already obvious issues with causation in such claims: it will prove difficult to track how and from whom a person became infected with Covid-19, particularly in a care home where (at the outset at least) visitors were still allowed to attend, and staff were required to come and go without much access to testing facilities to inform whether they were potentially spreading the virus to vulnerable residents. This issue will be highly fact-specific depending on each individual’s movements, and the movements of those around them.

However a more fundamental, and broader, question is raised in light of the above: who should a claim be brought against?

In ordinary circumstances, where alleged negligence has taken place in a particular care setting, it is the body responsible for that setting who would be the most appropriate defendant.  Indeed, given the public information widely available at this time as to asymptomatic transmission, there is an argument that care homes could and should have known that this could well put other vulnerable residents at risk, and taken it upon themselves to isolate incoming residents just in case.

However, whilst care homes were not mandated to receive hospital patients into their care, it is notable that they were heavily pressured to do so by the Government, directly and indirectly. The reality is that there is a great deal of pressure on rooms and space, and isolation is not always possible.  In such circumstances, there is a strong argument that in following government guidance (and in particular a lack of guidance to attempt isolation just in case someone was asymptomatic), a care home cannot – and should not – be considered to have acted in a negligent manner.

In any event, given the outcome in Gardner, those contemplating a claim might want to consider widening the pool of potential defendants – or keeping an eye out for a ‘test case’ which will hopefully provide some clarity in the near future.

By Rose Harvey-Sullivan, Barrister at 7BR.

The first edition of LexisNexis’ Coroners' Investigations and Inquests, edited by James Robottom, Rose Harvey-Sullivan, James Weston and Richard Baker is available to purchase now.

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