Boris Johnson has been told to quit by relatives of elderly Covid victims after his government’s policy of sending untested hospital patients to care homes in the early days of the pandemic was ruled ‘unlawful’ today.
It came after Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, partially succeeded in their claims against the Health Secretary and Public Health England (PHE) at London’s High Court on Wednesday.
They both called on the PM to resign over the ruling, while one accused former health secretary Matt Hancock of ‘lying to the public’ when he said the NHS was putting a ‘protective ring’ around care homes.
Their sentiments were echoed by campaign group Covid-19 Bereaved Families for Justice, who said thousands of loved ones had been ‘thrown to the wolves by the government.’
In their ruling today, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.
They said that, despite there being ‘growing awareness’ of the risk of asymptomatic transmission throughout March 2020, there was no evidence that then Health Secretary Hancock addressed the issue of the risk to care home residents of such transmission.
A spokesman for Mr Hancock said the ruling actually cleared him of wrongdoing as it ruled that it was the now-defunct PHE who had ‘failed to tell ministers what they knew about asymptomatic transmission’.
His statement was supported by Mr Johnson at Prime Minister’s Questions today, who claimed to not have known at the time ‘that Covid could be transmitted asymptomatically in the way that it was.’
Liberal Democrat spokesperson for health and social care Daisy Cooper had raised the ruling in Parliament, asking Mr Johnson: ‘Will the Prime Minister apologise to the families of the thousands and thousands of people who died in care homes in the first half of 2020, and will he also apologise to care workers for the shameful comment that he made in July 2020 when he said that too many care homes didn’t follow procedures in the way that they could have?’
The PM replied: ‘Of course I want to renew my apologies and sympathies for all those who lost loved ones during the pandemic, people who lost loved ones in care homes.
Cathy Gardner (left) and Fay Harris (right), whose fathers died from Covid-19, leave the Royal Courts of Justice, central London, where judges have ruled Government policies on discharging patients from hospital to care homes at the outset of the pandemic were ‘unlawful’
Dr Cathy Gardner (right) took the Government to the High Court after her father Michael Gibson (left), 88, died ‘Covid probable’ at the Cherwood House Care Centre in Oxfordshire on April 3, 2020
Faye Harris, 57, also joined the legal fight after her father Don (pictured), 89, an ex-Royal Marine, ‘died of Covid’ in May 2020 along with 24 residents at his Hampshire care home
‘And I want to remind the House of what an incredibly difficult time that was, and how difficult that decision was.
‘And we didn’t know very much about the disease, and the point I was trying to make to which she refers is the thing we didn’t know in particular was that Covid could be transmitted asymptomatically in the way that it was and that was something that I wish we had known more about at the time.
‘As for the ruling that she mentions. We will study it, and we will of course respond further in due course.’
But Charlie Williams, spokesperson for the Covid-19 Bereaved Families for Justice, accused Mr Hancock and the government of ‘lying’ about protecting care home residents.
He said following today’s ruling: ‘I lost my father in a care home back in April 2020.
‘We kept him there because we had been told that no one in the care home had Covid, that he would be safe, but later we learned from the staff, who were fantastic, that 27 patients had in fact died from the virus there.
‘For the thousands of families like mine who lost loved ones in care homes, the last two years of cover ups and denials have been unbelievably painful.
‘We’ve always known that our loved ones were thrown to the wolves by the government, and the claims made by Matt Hancock that a ‘protective ring’ was made around care homes was a sickening lie.
‘Now a court has found their decisions unlawful and it’s clear the decisions taken led to people dying who may otherwise still be with their loved ones today.
‘We now need to see those responsible for those dark days held accountable and lessons learned to save lives, ensuring the grim scenes of spring 2020 are never repeated again.’
The GMB union, meanwhile, said the Government had shown ‘callous disregard’ for care homes following the ruling.
Rachel Harrison, GMB national officer for care, said: ‘Today’s judgment is a terrible reminder of callous disregard this Government has shown for care home residents and workers.
‘Transferring untested hospital outpatients into enclosed facilities where carers were denied access to proper PPE and even sick pay was always going to have tragic consequences.
‘GMB members nursed much-loved residents as they died from this awful virus, while all the while worrying about their own safety and how they were going to pay the bills.
‘If any good is to come out of this pandemic then it must include urgent reform of the sector.’
The judges said in their ruling: ‘In our judgment, this was not a binary question, a choice between on the one hand doing nothing at all, and on the other hand requiring all newly admitted residents to be quarantined.
‘The document could, for example, have said that where an asymptomatic patient, other than one who has tested negative, is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days.
‘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 judgment on a finely balanced issue.
‘Nor is it a point on which any of the expert committees had advised that no guidance was required.
‘The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.’
The judges said these issues were not addressed until a further document in mid-April 2020.
They concluded: ‘The common law claim succeeds against the Secretary of State and Public Health England in respect of both the 17 March and 2 April 2020 documents to this extent: 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 judges rejected other claims by the women made under human rights legislation, and against NHS England.
Dr Gardner and Ms Harris both said Mr Johnson should resign in the wake of the ruling.
‘I think absolutely the Prime Minister should resign,’ said Dr Gardner.
‘There are so many reasons why the Prime Minister should resign.’
Dr Gardner told Sky News: ‘They didn’t do anything to protect my father, there was no help given to care homes and the death toll in those first few weeks of the pandemic was catastrophic.’
Both claimants (right, Dr Gardner, while left, Ms Harris) called on Prime Minister Boris Johnson to resign over the ruling, while one accused former health secretary Matt Hancock of ‘lying to the public’ when he said the NHS was putting a ‘protective ring’ around care homes.
The two claimants in the case have called on Boris Johnson (pictured) to resign following the ruling
Ms Harris added: ‘I think Boris Johnson should resign – because of this and for other reasons.’
Ms Gardner also accused Mr Hancock and the government of lying when it said it had placed a ‘protective ring’ around care homes from the start of the pandemic.
She told Sky News: ‘When secretary of state Matt Hancock said that he’d thrown a protective ring around care homes right from the start – I heard him say that on television and my chin nearly hit the floor because all of us who were involved in any way with care homes at the start of the pandemic knew that was absolutely not true.
‘It was a lie. It was a lie then and it is a lie now.
‘They didn’t do anything to protect my father, there was no help given to care homes and the death toll in those first few weeks of the pandemic was catastrophic.
‘I think they never imagined they were going to be found out. You only have to look at the parties (in Downing Street) to realise they never think they’re going to be found out.’
Helen Wildbore, director of the Relatives and Residents Association, said: ‘This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent.
‘Older people were abandoned at the outset of the pandemic, let down by the very systems designed to protect their rights.
‘The ruling is very welcome as a first step to justice but bereaved families will be left asking why more wasn’t done to protect their loved ones and how many lives could have been saved.’
Paul Conrathe, solicitor at Sinclairslaw who represented the claimants, said: ‘It was clear from the appalling Covid death toll in care homes that something went badly wrong with Government policy.
‘We are pleased that the High Court has recognised the scale and gravity of the Government’s failings.’
Helen Wildbore, director of the Relatives and Residents Association, said: ‘This ruling confirms what people living in care and their families have known all along – the protective ring was non-existent.’ Pictured: Mike Carr and Katie Folloitt-Powell of the Patient Transport Services of South Central Ambulance Services help to settle an elderly non-COVID-19 patient into a care home after moving her from hospital, near Portsmouth.
Ms Gardner accused former health secretary Matt Hancock (pictured) of ‘lying’ when he said NHS had put a ‘protective ring’ around care homes from the outset of the pandemic
Lawyers representing current health secretary Sajid Javid (pictured), NHS England and Public Health England were fighting the claim.
Lawyers representing current health secretary Sajid Javid, NHS England and Public Health England were fighting the claim.
Dr Gardner, who has an academic qualification, is in her 60s and from Sidmouth, Devon.
She said her father had died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.
A barrister representing the two women told Lord Justice Bean and Mr Justice Garnham that between March and June 2020 – when Matt Hancock was Health Secretary – more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.
Jason Coppel QC said the fathers of Dr Gardner and Ms Harris were part of that ‘toll’.
‘The care home population was known to be uniquely vulnerable to being killed or seriously harmed by Covid-19,’ said Mr Coppel in a written case outline.
‘The Government’s failure to protect it, and positive steps taken by the Government which introduced Covid-19 infection into care homes, represent one of the most egregious and devastating policy failures in the modern era.’
Mr Coppel told judges: ‘That death toll should not and need not have happened.’
He added: ‘Put together, the various policies were a recipe for disaster and disaster is what happened.’
Mr Coppel said other countries, particularly in the Far East, had shown the way to safeguard residents by stopping the virus getting into care homes.
Sir James Eadie QC, who represented Mr Javid and Public Health England, had argued that the women’s claim should be dismissed.
‘This is a judicial review challenge to six specific policies made in the early stage of the pandemic,’ he told judges.
‘As the evidence demonstrates, the defendants worked (and continue to work) tirelessly to seek to protect the public from the threat to life and health posed by the most serious pandemic in living memory, and specifically sought to safeguard care homes and their residents.’
He added: ‘The lawfulness of the decisions under challenge must be assessed in the context of the unprecedented challenge faced by the Government and the NHS at that time, in particular March and April 2020.’
Eleanor Grey QC, who represented NHS England, also argued that the claim should be dismissed.
A Government spokeswoman had said during the hearing, in a statement outside court: ‘Every death is a tragedy and we worked tirelessly to protect the public from the threat to life and health posed by the pandemic and specifically sought to safeguard care homes and their residents.
‘We have provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents now vaccinated.’
A spokesman for Matt Hancock said: ‘This court case comprehensively clears Ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts.
‘The court also found that PHE failed to tell Ministers what they knew about asymptomatic transmission.
‘Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.
‘Mr Hancock’s thoughts are with everyone who lost loved ones, and we must ensure that all the right lessons are learned.’
