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The UK government’s policies on discharging thousands of patients from hospital into care homes at the start of the coronavirus pandemic were unlawful because they failed to take into account the risk of asymptomatic transmission of the virus, the High Court ruled on Wednesday.
Two judges found that decisions of the Department of Health and Social Care laid out in policy documents issued in March 2020 and April 2020 failed to take into account the risk that moving asymptomatic elderly patients from a hospital to a care home could infect other residents.
The court ruled that it was “irrational” for DHSC to fail to advise that asymptomatic patients should have been kept apart from other care home residents for 14 days to avoid possible transmission of the virus, unless they had already tested negative for Covid-19.
The ruling is a blow for the government, which is already facing a public inquiry into its preparedness for the pandemic that will include its management of Covid-19 in care homes.
Two women, whose fathers died of Covid-19 in care homes in 2020, brought the judicial review against the government, as well as Public Health England and NHS England over their alleged failures to protect care home residents.
Jason Coppel QC, the barrister representing Cathy Gardner, whose 88-year-old father died in an Oxfordshire care home, and Fay Harris, whose father also died, told the High Court in a hearing in March that the government policy represented “one of the most egregious and devastating policy failures in the modern era”.
Coppel claimed that the policies led to the mass discharge of hospital patients into care homes without proper testing, isolation or appropriate guidance over personal protective equipment. As a result, large numbers of infected patients were transferred into closed environments containing those most vulnerable to dying of Covid-19.
The High Court found that two government policies were unlawful: the March 2020 Discharge Policy, which led to an influx of patients into care homes to free up hospital beds, and the April Admissions Guidance, which provided care homes with advice on admissions of people from hospitals.
Lord Justice David Bean and Mr Justice Neil Garnham ruled: “ . . . the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.”
The ruling noted that the DHSC did not recommend that new residents admitted to care homes should be tested and isolated for 14 days until April 15 2020.
The government has already been criticised by the House of Commons public accounts committee for its decision between March 17 and April 15 2020 to discharge 25,000 patients from NHS hospitals in England and Wales into care homes without Covid-19 testing or ensuring suitable isolation arrangements were in place. About 20,000 residents of care homes in England died of Covid-19 during the first wave of the pandemic in 2020.
The High Court dismissed other parts of the case, including a claim against NHS England and claims brought by the families under human rights law.
The DHSC said: “Our thoughts are with all those who lost loved ones during the pandemic. Throughout . . . our aim has been to protect the public from the threat to life and health posed by Covid-19 and we specifically sought to safeguard care home residents based on the best information at the time.
“The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.”
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