Covid-19: Policy to discharge vulnerable patients to care homes was irrational, say judges

Government policy that exposed thousands of vulnerable elderly people in England to SARS-CoV-2 in the early months of the pandemic was irrational in failing to advise that asymptomatic patients sent to care homes to free up hospital beds should be isolated for 14 days, two senior judges have ruled.1

The decision that Matt Hancock, then health and social care secretary, operated an unlawful policy gives the lie to Hancock’s claim to have thrown a protective ring around care homes when the pandemic struck. About 20 000 care home residents in England died from covid-19 during the first wave of the pandemic in 2020.

Among the deaths in April and May 2020 were those of Michael Gibson and Donald Harris, the fathers of Cathy Gardner and Fay Harris. The two women brought judicial review proceedings in the High Court, not seeking damages but challenging the lawfulness of government policy documents and decisions in the early stages of the pandemic.

Amid concern that hospitals would be overwhelmed and would have too few beds for patients seriously ill with covid, the government published a hospital discharge policy in March 2020 and admissions guidance for care homes in April 2020.

Lord Justice Bean, with Mr Justice Garnham agreeing, said, “The fact that discharge was necessary to preserve the capacity of the NHS to provide inpatient care to those seriously affected by covid did not eliminate the need to consider the best way to manage those discharged.”

The admissions guidance published on 2 April said, “Some of these patients [admitted from a hospital or from a home setting] may have covid-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed.

“If an individual has no covid-19 symptoms, or has tested positive for covid-19 but is no longer showing symptoms and has completed their isolation period their care should be provided as normal . . . Negative tests are not required prior to transfers/admissions into the care home.”

By the time the guidance was issued, said Bean, there was evidence that SARS-CoV-2 could be transmitted by asymptomatic carriers. But those drafting the guidance and the policy “simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

It was not until 15 April that the Department of Health and Social Care recommended both testing and isolation for 14 days for new residents admitted to care homes from hospital or the community. “This was a significant delay at a critical period,” added Bean. “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.”

Vishal Sharma, chair of the BMA’s Consultants Committee, said, “It is clear that the policies at the time failed to protect the most vulnerable of patients and were compounded by limited access to testing in care home settings, the inability to isolate patients, and the extreme shortages of PPE [personal protective equipment]. This facilitated outbreaks to spread within care homes, sadly leading to the deaths of many.

“It’s heart breaking that the government ignored the evidence that was clearly available at the time that covid was an airborne virus, effectively sending these elderly people into an environment where the virus could spread and infect so many. And all the while the government assured us it was working tirelessly to protect the public.”