Ministers mount defence after allegation Government failed to protect care home residents

By Brian Farmer, Reporter16th March 2022News EnglandBereavment, Care Homes, Coronavirus / Covid-19, Courts / Justice, Government / Politics, News England, Older People, Residential Care

Ministers have begun mounting a defence after two women whose fathers died complained about a Government “failure” to protect care home residents during the Covid outbreak.

Cathy Gardner (pictured) 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.

Two judges are overseeing a hearing at the High Court in London.

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

A barrister representing Mr Javid and Public Health England on Wednesday outlined the scale of the difficulties ministers faced at the start of the pandemic in 2020.

“There … were regular attempts to get on top of the science, to understand what was going on and to therefore tailor response and policy accordingly,” Sir James Eadie QC told Lord Justice Bean and Mr Justice Garnham.

“It was perfectly obvious, and vital, that the NHS should not be overwhelmed.”

He said “things started to move very fast” in mid-March and experts had warned that the consequences for the NHS could be “catastrophic”.

Sir James has told judges, in a written argument, that the “defendants” had worked “tirelessly” to try to protect the public and “specifically sought to safeguard care homes and their residents”.

He says the lawfulness of decisions being challenged must be assessed in the context of an “unprecedented challenge” – particularly in March and April 2020.

“While scientists are still studying the impact of different policies on containing the virus, the leading studies published to date all conclude that the policies subject to challenge did not contribute significantly to the spread of the virus within care homes,” he added.

“The deaths of care home residents in the first wave is a tragedy.

“It is evidence of the virulence of the virus.

“It is not evidence of policy failure.”

He says the women’s claim should be dismissed.

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

A barrister representing the two women has told judges 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.

Dr Gardner, who has an academic qualification and is 60 and from Sidmouth, Devon, said her father, Michael Gibson, had died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.

Ms Harris’s father, Donald, also died in a care home.

A lawyer has said the case could have wide implications.

Michelle Penn, who specialises in care and occupational disease claims at law firm BLM, said: “This feels like a dress rehearsal for the forthcoming public inquiry, which of course will also focus on the care sector, so findings here may have a significant impact.”

A Government spokeswoman said in a statement outside court: “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.”