The Department of Health and Social Care and Public Health England broke the law by failing to protect hospital patients who were discharged into care homes without being tested for Covid, the High Court has ruled.
More than 20,000 elderly and disabled care home residents died after contracting Covid-19 between March and June 2020, after the government sent thousands of patients into care homes without coronavirus tests.
The High Court said instructions by DHSC and PHE to discharge patients from hospitals to care homes to free up hospital capacity at the beginning of the pandemic failed to take into account the risk to elderly and vulnerable residents from asymptomatic transmission.
Judges said the policies set out in March and April 2020 were “irrational” as they failed to advise that asymptomatic patients who had not been tested before being admitted to a care home should, as far as practicable, be quarantined for 14 days.
The judicial review was brought forward by Dr Cathy Gardner and Fay Harris, whose fathers Michael Gibson and Donald Harris died after testing positive for the virus.
Then-health secretary Matt Hancock claimed in May 2020 that the government had put a “protective ring” around care home residents from the start of the pandemic. However, 25,000 people were discharged from hospital into care homes without being tested for Covid from mid-March to mid-April 2020 and without having to quarantine.
This happened despite growing knowledge that the virus could be carried asymptomatically. Last week, DHSC Care permanent secretary Sir Chris Wormald said the government became aware of the significance of asymptomatic disease in early April.
Court documents outline how studies as early as 28 January had warned of the potential for asymptomatic transmission, but that the government did not act on the growing evidence base showing the prevalence of asymptomatic transmission until 15 April.
The law-breaking policies
Judges ruled that two policies – the March Discharge Policy and April Admissions Guidance – were unlawful.
The March Discharge Policy, which was published by now-defunct Public Health England on 17 March, 2020 and remained in force until 15 April, told hospitals to urgently discharge all hospital patients that were medically fit to leave in order to increase capacity amid rising coronavirus cases.
Priority for Covid tests was given to patients with symptoms.
On 15 April, the government changed its policy, advising that all patients should be tested before being discharged into care homes and should also quarantine for 14 days.
Judges said there was "no evidence" that Hancock had even "considered" quarantining care home arrivals who had not been tested prior to this but added that there was also no evidence he was asked to consider it.
The court said both the 17 March document and PHE’s 2 April guidance for care homes failed to take into account the risk of asymptomatic transmission.
Judges said DHSC and Public Health England – which was replaced by the UK Health Security Agency in October – bore responsibility for these policies, dismissing claims against NHS England.
Lawyers representing current health secretary Sajid Javid and Public Health England said the government had “worked 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”.
They said the lawfulness of the government’s decisions should be assessed in the context of the "unprecedented challenge" the Covid pandemic posed at that time.