The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health  EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that 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.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
The March Discharge Policy consisted of ‘Next Steps on NHS Response to COVID19’, dated 17 March 2020 (“the March NHSE Instruction”), and ‘COVID-19 Hospital Discharge Service Requirements’, dated 19 March 2020 (“the March Discharge Requirements”). The Claimants submitted that this directed the mass discharge of hospital patients into care homes without testing, isolation, appropriate guidance in relation to PPE or assessment of whether the care home could provide safe care. The effect of this was to transfer large numbers of infected patients into closed environments containing the segment of the population most vulnerable to being killed or harmed by COVID-19. This policy was maintained until 15 April 2020. The Claimants complained that the policy prioritised freeing up hospital beds but failed to consider the risk this would create for care home residents. Care homes were under pressure to accept hospital discharges regardless of whether they were able to provide safe care. Furthermore, the failure to provide testing was not justifiable either by lack of knowledge of asymptomatic transmission or testing capacity. The failure to provide or recommend isolation was not justifiable; by this time the Government’s household isolation policy required that any person who had been in contact with a COVID-19 positive case had to self-isolate for 14 days.
The Defendants argued that the policy required clinicians treating patients to decide whether a COVID-19 test was appropriate during their hospital stay, based on the case definition and symptoms. The decision on whether it was safe to discharge them would be based on individual assessments undertaken by a clinician working with local authorities. Furthermore, the policy aimed to free up NHS facilities for the most severely affected cases. That was an unimpeachable and vital aim. The Defendants did not protect the NHS at the expense of older people but protected the NHS in order to protect older people who are more vulnerable to COVID-19. This key objective was achieved and everyone who needed hospital treatment received it. In any event, the Defendants submitted that testing and isolation for discharges was introduced four weeks later. At the time complained of, sufficient testing capacity was simply not available. The COVID-19 test was a brand-new test and there was no infrastructure for mass production or delivery. On 1 March 2020, 2,100 tests were available each day. By the time the guidance was changed to permit routine testing of all hospital discharges, there were 38,766 tests available per day. That passage of four weeks was explained by practical constraints and scientific advice. On mandatory isolation, the Defendants argued that they had to weigh the benefits and harms of imposing this degree of isolation on people who were this vulnerable. When new scientific advice emerged in April 2020 and the balance shifted, routine isolation for this cohort was introduced. Furthermore, it was not feasible to agree a nationwide blanket policy on alternative isolation facilities. Although funding was made available for this in the April Action Plan, it took time to establish an estate with external facilities for isolation. As to whether care homes were able to safely care for discharges, this was all subject to individual risk assessments involving care homes and local authorities and it was for each care home to evaluate whether they had sufficient safeguards and isolation facilities in place.
The April Admissions guidance was the ‘Admission and Care of Patients During COVID-19 Incident in a Care Home’ dated 2 April 2020. The Claimants submitted that this guidance failed to protect care home residents and prioritised the Defendants’ objective of freeing up hospital beds. Negative tests were still not required before discharge into care homes, and care was to be provided as normal to asymptomatic individuals and those who had tested positive but were no longer showing symptoms. Further, the guidance mandated that staff should only wear PPE when caring for residents with symptoms. Guidance on infection control was still defective and inadequate, there was still no advice to stop all visitors (who were only discouraged), and still no revocation of the March PHE Policy encouraging sharing of staff between care homes.
The Defendants repeated the same arguments in respect of the April Guidance as regarding the March Discharge policy and emphasised that symptomatic care home staff members were given access to testing on 15 April 2020, and asymptomatic staff members became eligible for testing on 28 April 2020. As to PPE for staff, by 16 March 2020 the Government had mobilised a specialist PPE hotline for care homes. Furthermore, restricting movement of staff between care homes was very difficult as staff movement was built into the care system. It was not possible to stop this at once; such a change was being strongly resisted by the care sector and could have led to significant staff shortages in care homes. Finally, existing guidance on infection prevention and control was already present in care homes.
The High Court’s Judgment
The High Court’s detailed and lengthy judgment is worth reading in full for its summary at [25-138] of the developing scientific knowledge about COVID-19, and in particular of the transmission risk from asymptomatic patients, together with the policy responses from the Defendants.
The judgment also contains a comprehensive exposition at [224-249] of the relevant case law concerning the applicability of Article 2 ECHR in considering the Claimants’ claim that the Defendant breached both their systemic and operational duties, and in particular that there was an operational duty owed to residents of care homes for the elderly, such as Mr Gibson and Mr Harris, because of their exceptional vulnerability to fatal infection by COVID-19. This part of the judgment culminated in a useful summary as to the ambit of the operational duty at :
We draw the following from the domestic and Strasbourg cases which we have cited:
i. a real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty;
iii. however, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent and unlawful acts of others (Osman) or man-made hazards (Oneryildiz, Kolyadenko) or natural hazards (Budayeva), or from appalling conditions in residential care facilities of which the authorities had become aware (Nencheva, Campeanu);
iv. Watts suggests that, in appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know pose a real and immediate risk (according to Maguire, an exceptional risk) to the life of a vulnerable individual or group of individuals.
The High Court concluded at  that:
There is no authority of the Strasbourg court which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined a sector of the population as residents of care homes for the elderly. There is no clear and consistent line of Strasbourg authority which indicates that such a duty exists and we cannot be at all confident – indeed we gravely doubt – that the ECtHR would be willing to declare that it does. We should keep pace with the Strasbourg jurisprudence, but not run past it and disappear into the distance. The Defendants did not, in our view, owe the Article 2 operational duty for which the Claimants contend.
The High Court also held at  that there was no arguable breach of the systems duty as: “There is nothing wrong with the framework for the issuing of guidance or policy documents by the Defendants (nor with the allocation of responsibilities between them). The complaint in this case is of the documents’ contents.”
Before making any substantive consideration of the public law claim, the High Court stated at [266-267] that:
We remind ourselves that we are here considering whether the decisions made and the policies promulgated were unlawful by the standards of public law. In addressing that issue we have to consider the facts as they were presented at the time to the decisionmakers. As Sir James correctly puts it [on behalf of two of the Defendants], “hindsight is not permissible.” We must ask ourselves whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.
Further, the High Court stated that
we recognise that the Government was having to make judgements in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. It was doing so in circumstances of enormous pressure where the matters at stake were of the utmost gravity. Furthermore, in the early months of the pandemic the options available to the Government were constrained by practical limitations as well as scientific uncertainty. The obvious example is the worldwide shortage of PPE in the early months of the pandemic and the worldwide competition for what little PPE there was.”
The High Court referred to the developing nature of the scientific evidence and held at  that while it was undoubtedly right that there was no scientific proof in mid-March 2020 that asymptomatic transmission was occurring, it was well recognised by the experts that such transmission was possible. Further, at  the Court stated 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 nonsymptomatic transmission was occurring, but also the very serious consequences if it did so. Non-symptomatic transmission would mean that one elderly patient moved from hospital to a care home could infect other residents before manifesting symptoms or even without ever manifesting symptoms. In this context it is important to recall the emphasis laid by the Defendants on the fact that they were intending to adopt the precautionary principle, in essence preparing on the basis that the worst could happen, throughout their response to COVID-19.
Accordingly, the Court held at  that “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.”
However, the High Court rejected as ‘unrealistic’ the Claimants’ wholesale attack on the policy of discharging patients from hospital to care homes (at ):
As we have noted, the Defendants were extremely and understandably concerned by the prospect of the numbers of seriously ill patients requiring intensive care rising so rapidly that the NHS’s intensive care capacity would simply be overwhelmed. In Italy, where the disease had spread some two weeks earlier than in England, hospitals had run out of beds and patients were being left to die at home. It must be remembered that, at this stage of the emergency, vaccines lay far in the future and the experts were unable to predict whether the graph of serious infection would go on rising exponentially for a long period. The NHS was using temporary overflow facilities with open plan wards at venues such as the ExCeL conference centre, known as Nightingale Hospitals, to help with the rapid surge in demand for beds. At this stage there was a shortage of PPE (both in this country and worldwide) and of tests.
Therefore (at ):
Subject to a point which we make below, there was nothing unlawful in the policy on discharges from NHS hospitals contained in the documents of 17-19 March 2020 … The Government was advised by experts that there was a real risk of the NHS being overwhelmed and it could not afford to wait to see whether that advice was overcautious.
We also regard as unrealistic the Claimants’ suggestion that the transfer of patients from hospital into care homes should have been conditional on an assessment of the ability of each care home to provide safe care. It was properly open to the Government to regard the need to discharge from hospital those who appeared medically fit to be discharged as paramount. That could not sensibly wait for every care home to be assessed. Similarly, the suggestion that the Government should have made provision in March for the testing of each patient before discharge to a care home is hopeless. As the narrative above shows there were only 5,000 tests available each day by 18 March and only 10,000 each day by 27 March. Even were it the case that in fact not all the available tests were used, it cannot sensibly be said that the Defendants acted irrationally in agreeing a prioritisation list, on expert advice, to ensure the limited number of tests were allocated where they were most needed.
The High Court went on to consider the separate question as to how those discharged from hospital to care homes in order to preserve the capacity of the NHS to provide in patient care to those seriously affected by Covid should have been treated and cared for. At [287-9] the Court held that there was no evidence that the Secretary of State or anyone advising him, or those drafting either the March Discharge Policy or the April Admissions Guidance, had addressed the the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.
The High Court held at  that a recommendation to maintain a policy of isolation for 14 days from other care home residents of those discharged from hospital ‘so far as practicable’ could and should have been included in the March Discharge Policy, and if not included on 19 March, it should have been included in the Admissions Guidance of 2 April (at ):
It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance. It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority based arrangements”, that is to say quarantine facilities.
As such (at ):
This was a significant delay at a critical period. We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.”
This decision is notable for both its rejection of the Claimants’ ECHR based challenges and the wider public law challenges to other key decisions and policies taken in the relevant period (covered in other parts of the lengthy judgment), and also for one of the most controversial aspects of the initial Covid response being found to be irrational. It will remain to be seen whether the Government seek to appeal this decision, let alone to what extent the finding of the relevant policies in force for a relatively short period of time as unlawful on public law grounds alone will give any basis for a claims for damages in due course.
Dominic Ruck Keene is a barrister at 1 Crown Office Row.