A woman whose elderly father died from Covid called on Matt Hancock to apologise for his “despicable lie” that a “protective ring” was thrown around care homes after a court ruled that the government policy of discharging patients to residential settings was unlawful.
Judges at London’s High Court on Wednesday ruled that discharging Covid patients to care homes without testing them was unlawful. They said that the policy failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the illness.
The case against Boris Johnson’s government was brought by two women whose fathers died from Covid-19 and who said ministers failed to protect care home residents during the pandemic.
Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, took High Court action against health secretary Sajid Javid, NHS England and Public Health England.
Speaking outside the court, Ms Gardner said the ruling vindicated her belief that the government had “neglected” care home residents during the pandemic and justified “our campaign to expose the truth.”
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She also called on the prime minister to “accept responsibility” for a policy devised “on his watch” and said the former health secretary should be “ashamed” of his “lie”.
Ms Gardner and Ms Harris asked two judges to make declarations that unlawful decisions were made.
Lawyers representing Mr Javid, NHS England and Public Health England fought the claim.
Ms 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.
In the ruling, 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 Matt Hancock addressed the issue of the risk to care home residents in England of such transmission.
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.
Fay Harris, whose father died from Covid-19, speaking outside the Royal Courts of Justice
(PA)
"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.
Matt Hancock said a ‘protective ring’ had been thrown around care homes
(Tim Hammond / No10 Downing Street)
Fay Harris, who also brought the case with Ms Gardner said: "I am very pleased with the judgment today.
"It brings some comfort to know that the government have been shown to act unlawfully.
"Their actions exposed many vulnerable people to a greater risk of death - and many thousands did die.
"It has only increased the distress to me and many others that the government have not been honest and owned up to their mistakes.
"I have lost precious years with my wonderful dad. I left him fit, well and happy on the 22nd March 2020 when his home went into lockdown.
"He should have been safe and protected, but I never saw or spoke to him again. Many people died of Covid in his care home.
"I hope this judgment will help the thousands of other families who have lost parents due to this Government’s reckless and unlawful policies."
Responding to the ruling, Layla Moran MP, chair of the All-Party Parliamentary Group on Coronavirus, said: “It is unforgivable that, despite government promises, some of the most vulnerable in society suffered the most during the pandemic, with many forced into solitude for months and countless passing away without the comfort of loved ones.
“After partygate, the billions in public money wasted and today’s ruling, the need for a public inquiry to begin immediately is clear. Lessons must be urgently learned so care homes are never again treated as an afterthought in pandemic planning.”
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A spokesman for former health secretary Matt Hancock said the High Court had found he acted reasonably but Public Health England "failed to tell ministers what they knew about asymptomatic transmission" of Covid-19 and "Mr Hancock has frequently stated how he wished this had been brought to his attention earlier".
An NHS spokesperson said: “We welcome the court’s dismissal of all claims against the NHS.”