Government has not handed over key documents on care home Covid deaths, High Court told

Two women bringing a legal challenge over what they describe as a failure to protect those living in care homes from Covid-19 claim the Government has not provided key evidence in the case.

Dr Cathy Gardner (pictured) and Faye Harris, whose fathers both died in care homes from the virus, are suing the Department for Health and Social Care (DHSC), NHS England and Public Health England (PHE).

The pair claim there was a failure to implement “adequate” measures to protect residents from the “ravages” of coronavirus and this was “one of the most egregious and devastating policy failures of recent times”.

They say certain key policies and decisions led to a “shocking death toll” of care home residents – which they estimate at 20,000 people between March and June – including an alleged policy of discharging patients from hospital into care homes without testing and suitable isolation arrangements.

The women argue that the decisions and policies under challenge were a breach of duties under human rights – including the right to life and right to freedom from inhuman or degrading treatment – and equality legislation.

They were given the go-ahead for a judicial review last November, but the case was back at the High Court in London on Wednesday, with lawyers for the two women arguing that the Government and health bodies have “manifestly failed to discharge their duty of candour in the proceedings”.

Jason Coppel QC, representing Dr Gardner and Ms Harris, said in written arguments before the court: “The court does not have before it essential documents evidencing the defendants’ decisions and the advice, evidence and other considerations which they took into account when taking them.

“In response to the claimants’ reasonable requests for those documents, the first and third defendants have said that they have ‘no obligation […] to reveal the contents of those documents’, and that it should be for a public inquiry to ‘unearth’ the relevant evidence.”

He told the court: “The court will rarely, if ever, have considered a sequence of decision-making which is alleged to have had such devastating consequences, or a sequence of decision-making which has been so roundly castigated by every body to have considered it so far.”

Mr Coppel said that, for example, there was a change of procedure in around April last year regarding the risk of transmission from people without symptoms, but that the advice of Public Health England relating to this change has not been disclosed.

He said they have also not received evidence regarding testing capacity or where it was deployed, as well as a number of documents referred to in witness statements provided by the Government and the health bodies.

He also argued that, when the full hearing takes place in October, the claimants’ legal team should be allowed to cross examine the defendants’ witnesses – an unusual step in a judicial review.

Mr Coppel said that, where relevant advice had been communicated by text or WhatsApp messages, or by personal emails, this should also be disclosed.

He added that the case is being “closely watched by many thousands of other grieving relatives”.

The barrister said the claimants’ underlying case is that the defendants had “sufficient knowledge” of the risk of transmission to appreciate the “grave risk” to those in care homes of patients being discharged there.

Dr Gardner’s father, Michael Gibson, died in an Oxfordshire care home on April 3 after it re-admitted – without Covid testing – a former resident who had been in hospital. Mr Gibson’s death was recorded as “probable Covid”.

Ms Harris’s father “died of Covid” after his care home accepted hospital discharges of patients who may have been infected with the virus.

Mr Coppel said in his written arguments: “The Government’s failure to protect vulnerable care home residents from the ravages of Covid, including its taking of positive steps which introduced Covid infection into care homes, represents one of the most egregious and devastating policy failures in the modern era.

“The House of Commons Public Accounts Committee has described the errors made by Government as ‘reckless and negligent’ and ‘appalling’.

“An Amnesty International report found that Government decisions in relation to care homes were ‘heedless at best’ and ‘inexplicable’ and had ‘directly violated the human rights of older residents of care homes in England – notably their right to life, their right to health, and their right to non-discrimination’.”

Sir James Eadie QC, for the Government, opposed the applications for further disclosure and cross examination, saying that a previous judge who refused to grant them was right to say they are “excessive and disproportionate”.

He told the court there were many decisions which had to be made “very, very quickly, in the context of a pandemic which was breaking around everyone’s ears”.

He said: “Naturally, everyone focused on doing the best they could in extraordinary and extreme circumstances.”

In his written arguments before the court, Sir James said: “The claimants are evidently seeking to use this judicial review claim to hold what is closer in nature to a public inquiry just before the commencement of the actual public inquiry.

“If either of these applications are granted, then it will would be neither possible nor fair to hear the substantive case over the currently listed four days in October.

“It would lead to the claim even more closely resembling a form of fact-finding inquiry or trial. In those circumstances, the first and third defendants apply for a stay pending the public inquiry into the pandemic, which inquiry will likely commence next spring.”

Eleanor Grey QC, for NHS England, told the court that searches had returned more than 22,000 pages of material, which were then scrutinised for relevant evidence.

She said this was a “conscious and careful” approach to put the relevant evidence before the court, which the court would need to reach conclusions on the case.

Mrs Justice Eady said she will give her decision on the applications at 9am on Thursday.

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