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High Court rules discharge of untested covid patients to care homes was unlawful

The Chambers UK Bar team analyses the recent decision of the High Court ruling discharge of untested covid patients to care homes unlawful.

Published on 10 May 2022
Written by Rebecca Patton
Rebecca Patton

The legal case of R (Gardner and Harris) v Secretary of State for Health and Social Care and others

On 12 June 2020, Dr Cathy Gardner, represented by solicitor Paul Coranthe of SinclairSlaw, launched a judicial review case in the High Court to address failings by the Secretary of State at the time Matt Hancock, Public Health England and NHS England to safeguard care home residents during the early Covid pandemic in 2020.

In particular, that there was knowledge that asymptomatic transmission was possible and this was not accounted for in the advice given to care homes.

The judicial review was concerned with four policies issued during the pandemic providing guidance to care homes around the discharge of residents back into care home settings following hospital stays, visiting policies and the use of PPE.

The policies were issued in March and April 2020 and advised care homes that patients could be discharged from hospitals back into residencies without covid testing and there was no need to isolate patients.

During the same time period households who had come into contact with a person who tested positive for covid were being advised by the Government to isolate for up to 14 days.

The guidance on care of residents and the use of PPE also differed from that being given to the healthcare profession at large.

Care homes were advised that residents who were asymptomatic, or who no longer displayed covid symptoms could be cared for as normal, and there was no requirement for PPE to be worn at all times.

The claimants’ argument pointed to evidence that the Government was aware that asymptomatic transmission was a possibility as Sir Patrick Vallance, the Government’s chief scientific advisor, had made mention of the potential threat in a March 13th radio interview.

Decision of the High Court

On April 27, 2022, the High Court ruled that two of the policies noted in the review had indeed been unlawful. These were the two policies which had set out guidance on discharging patients from hospitals without the need for covid testing or isolation measures.

Lord Justice Bean and Mr Justice Garnham ruled against the Secretary of State and Public Heath England concluding that the policies set out in each of the two documents were ‘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.’

Further claims against these defendants under the Human Rights Act 1998 and claims against NHS England were dismissed.

Who were the barristers instructed on behalf of the claimants?

Instructed by Paul Coranthe of SinclairsLaw, a team from 11KBW led by Jason Coppel QC, who is increasingly sought out for his work on judicial reviews, acted for the claimants. Coppel is recognised in Band 1 of the Chambers UK Bar Guide 2022 Administrative and Public Law table. He is lauded by solicitors as having a ‘strategic vision’ of cases.

Acting as juniors on the case were Joseph Barrett, Rupert Paines and Raphael Hogarth.

Who were the barristers acting for the Secretary of State and Public Health England?

The Government legal department instructed Sir James Eadie QC of Blackstone Chambers to lead a team to defend the claims. He is currently recognised as a Star Individual in the Administrative and Public Law table and noted as being a ‘top choice’ for the Government in such matters. Solicitors praise his performance in court as ‘mind-blowing’.

Others involved in the case include new Silk Jonathan Auburn QC of 11 KBW, Heather Emerson of 39 Essex Chambers, Hannah Slarks of 11KBW, who is currently ranked as Band 4 on the Administrative and Public Law table, and Yaaser Vanderman and Charles Bishop, both of Landmark Chambers.

Who were the barristers for NHS England?

A team from DAC Beachcroft instructed Eleanor Grey QC of 39 Essex Chambers and Patrick Halliday of 11KBW in the defence of NHS England. Grey currently ranks as band 3 in the Chambers UK Bar Guide 2022 Inquests and Public Inquiries table. Grey is applauded by solicitors for her sensible approach and knowledge of the law.

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