Covid care home policy a ‘devastating failure’, High Court told

The UK government’s decision to transfer thousands of elderly and disabled patients from hospital into care homes at the start of the pandemic was one of the most “devastating policy failures in the modern era”, the High Court has heard.

A judicial review against Sajid Javid, health secretary, Public Health England and NHS England, over alleged failures to protect care home residents brought by the daughters of two men who died from Covid-19 while in care, began on Monday.

Between March and June 2020, care homes in England and Wales registered more than 20,000 deaths of elderly and disabled residents linked to Covid-19, according to data from the Office for National Statistics — equivalent to 30 per cent of all care home deaths.

The government has already been criticized by the parliamentary public accounts committee, the government spending watchdog, for its decision to discharge 25,000 patients from NHS hospitals in England and Wales between March 17 and April 15 2020 into care homes without ensuring suitable isolation or testing arrangements were made in place.

The judicial review, being heard at the High Court this week, is challenging six key policies and decisions, including the March discharge policy which led to thousands of hospital patients being released into care homes while the virus was circulating.

Cathy Gardner, 60, from Sidmouth, Devon whose 88-year-old father died in an Oxfordshire care home in April 2020, and Fay Harris, whose father also died, have asked the High Court to rule the policies were unlawful.

“The . . . 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,” said Jason Coppel QC, the barrister representing the women, told the court on Monday.

“Put together, various policies were a recipe for disaster and disaster is what happened,” he added.

In his written arguments, Coppel claimed that far from establishing a “protective ring” around care homes as claimed, the “very opposite” occurred. He added that there were “reasonably available measures which could and should have been taken”, including testing patients discharged from hospital.

Coppel alleged that the government did not adopt a precautionary approach in care homes until April 2020, which was “tragically, far too late”.

Sir James Eadie QC, the barrister representing the health secretary and Public Health England, said in his written submissions that the government had worked “tirelessly to seek to protect the public” and the challenges of dealing with the pandemic were “enormous”.

“The fact is that, when infections were rife in the community, the spread into and within care homes still could not be stopped. The death of care home residents in the first wave is a tragedy. It is evidence of the virulence of the virus. It is not evidence of policy failure,” Eadie said.

Eleanor Gray QC, the barrister acting for NHS England, said in her written submissions that the government’s March 2020 discharge policy had been an “essential and lawful response” to the critical objective of freeing up hospital capacity.

She noted that mandatory testing “was not a realistic option” in March 2020 as there was “limited, insufficient testing capacity”. The case continues with a ruling expected to be reserved.

The Department of Health and Social Care said: “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.”

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