The High Court judgement that the policy of discharging untested hospital patients into care homes as Covid-19 erupted in the UK was unlawful sheds light on the respective roles of advisers and ministers as they grappled with the evolving science, while Matt Hancock’s response shows his determination to blame officials for mistakes. The first wave of the virus killed more than 20,000 care home residents.
The judgement – Gardner & Harris v secretary of state for health and social care – is a significant staging post for the public inquiry, which will be led by Baroness Heather Hallett. It reveals how evidence for asymptomatic transmission gathered pace and the extent to which officials and ministers were aware of it and reflected it in public statements and policy.
On 28 January 2020, just under a month after China notified the World Health Organization of what we now know as Covid-19, the Scientific Advisory Group for Emergencies – SAGE – concluded “there is limited evidence of asymptomatic transmission, but early indications imply some is occurring”.
In February and early March, scientific papers around the world gave increasing indications that asymptomatic transmission was occurring. Ministers knew there was growing evidence for it – health minister Lord Bethell told the Lords on 9 March that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit”.
"The judgement is a significant staging post for the public inquiry. It reveals how evidence for asymptomatic transmission gathered pace and the extent to which officials and ministers were aware of it and reflected it in policy"
Four days later, chief scientific adviser Sir Patrick Vallance told Radio 4’s Today programme: “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms.”
Yet official guidance to local authorities, care homes and the NHS published the same day was far less clear that asymptomatic transmission was a significant risk that needed to be mitigated.
On 16 March the government announced that people living with a symptomatic case should isolate for 14 days. The secretary of state explained to the Commons that the aim was to reduce asymptomatic transmission.
A troubling question for Public Health England is why, as the first wave of the pandemic gripped the country in late March, it was reticent to give force to asymptomatic transmission concerns. For example, on 24 March – the day after lockdown – version 7 of its paper Are asymptomatic people with Covid-19 infectious? said asymptomatic infection cases “do not provide evidence for asymptomatic transmission [emphasis added] of SARS-CoV-2… The currently available data remains inadequate to provide evidence for major presymptomatic/asymptomatic transmission.”
This contrasts with evidence from then Public Health England medical director Prof Yvonne Doyle to the health and social care select committee on 26 March, when she explicitly confirmed that people could be spreading the virus for up to five days before showing symptoms.
The judges said the submission on behalf of the secretary of state that ministers were entitled to rely on advice from experts “is too simplistic a view of the issue. It is undoubtedly right that there was no scientific proof in mid-March 2020 that asymptomatic transmission was occurring, but it was well recognised by the experts that such transmission was possible.”
They added that “the fact that evidence is not conclusive does not mean that it carries no weight. Ministers were obliged to weigh up not just the likelihood that non-symptomatic transmission was occurring, but also the very serious consequences if it did so… the growing appreciation that asymptomatic transmission was a real possibility ought to have prompted a change in government policy concerning care homes earlier than it did.”
On the key issue of the policy options for how asymptomatic patients would be discharged into care homes, the judges said: “Since there is no evidence that this question was considered by the secretary of state, or that he was asked to consider it, it is not an example of a political judgement on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance [for care homes] simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
In an article for the Telegraph after the judgement, then-health and care secretary Matt Hancock blamed Public Health England for sending patients to care homes without tests, claiming the ruling demonstrates that the risk of asymptomatic infection “was not… included in the advice I received from PHE”. Anonymous figures also briefed the Telegraph that Prof Duncan Selbie, then the chief executive of Public Health England, was ultimately responsible for failing to tell ministers what they knew about asymptomatic transmission.
The judgement, and Hancock’s pugnacious response to it, show the battle at the inquiry between ministers and officials over who is ultimately to blame for failures and mistakes is likely to get brutal. Ministers will be scrutinised over the “Watergate question” – what did you know and when did you know it – while Margaret Thatcher’s aphorism that “advisers advise and ministers decide" and the boundaries of responsibility that implies will be subjected to searching examination. The long-term implications for the machinery of government will be seismic.
Richard Vize will be providing regular analysis of the Covid-19 public inquiry for CSW