Duo challenge Government in High Court over ‘failure’ to protect care home residents during pandemic

Cathy Gardner and Fay Harris have taken legal action against Health Secretary Sajid Javid, NHS England and Public Health England.

They want declarations that unlawful decisions were made.

Lawyers representing Mr Javid, NHS England and Public Health England are fighting the claim.

Two judges began overseeing a hearing – which is due to last six days – at the High Court in London on Monday.

A barrister representing the two women told Lord Justice Bean and Mr Justice Garnham that between March and June 2020 – when Matt Hancock was Health Secretary – more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.

Jason Coppel QC said the fathers of Dr Gardner and Ms Harris were part of that “toll”.

“The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,” said Mr Coppel in a written case outline.

“The Government’s failure to protect it, and positive steps taken by the Government which introduced Covid-19 infection into care homes, represent one of the most egregious and devastating policy failures in the modern era.”

Mr Coppel told judges: “That death toll should not and need not have happened.”

He added: “Put together, the various policies were a recipe for disaster and disaster is what happened.”

Mr Coppel said other countries, particularly in the Far East, had shown the way to safeguard residents by stopping the virus getting into care homes.

“This claim is a legal challenge to the Government’s failure to protect care home residents and to the key policies and decisions which led to the shocking death toll,” he said.

“The most notorious of these policies is that of mass discharge of around 25,000 elderly or disabled patients from NHS hospitals into care homes – including the homes of the claimants’ fathers – without Covid-19 testing or ensuring that suitable isolation arrangements were in place.”

Dr Gardner, who has an academic qualification and is 60 and from Sidmouth, Devon, was at the hearing.

She said her father, Michael Gibson, had died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.

Ms Harris was not at the hearing.

Sir James Eadie QC, who is representing Mr Javid and Public Health England, told judges, in a written case outline, that the women’s claim should be dismissed.

“This is a judicial review challenge to six specific policies made in the early stage of the pandemic,” he said.

“As the evidence demonstrates, the defendants worked (and continue to work) tirelessly to seek to protect the public from the threat to life and health posed by the most serious pandemic in living memory; and specifically sought to safeguard care homes and their residents.”

He added: “The lawfulness of the decisions under challenge must be assessed in the context of the unprecedented challenge faced by the Government and the NHS at that time, in particular March and April 2020.”

Eleanor Grey QC, who represented NHS England, also argued that the claim should be dismissed.

“(NHS England) wishes first to express its regret that Dr Gardner and Ms Harris have lost their fathers, and that others who have filed evidence in this matter, as well as others across the country, have lost loved members of their families in the ongoing Covid-19 pandemic,” she said in a written case outline.

“Although it is necessary to respond to the factual and legal merits of this claim, nothing which follows should be read as detracting from this sincere regret.

“(NHS England) and its staff have sought throughout the pandemic to ensure provision of the highest quality care possible to all those who need it in England.”

A Government spokesman said outside court in a statement: “Every death is a tragedy and we worked tirelessly to protect the public from the threat to life and health posed by the pandemic, and specifically sought to safeguard care homes and their residents.

“We have provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents now vaccinated.”