Last week the Administrative Court judged that certain aspects of the Department of Health and Social Care’s policies around the discharge of patients from hospitals were unlawful. The adjudged failure by the Secretary of State for Health and Social Care to adequately consider the risk to elderly and vulnerable residents from asymptomatic transmission will also be of interest to care providers who followed guidance at that time and may now be concerned about possible further challenges and claims by the families of those who sadly lost their lives.
The judicial review challenge was made to several Department of Health and Social Care policies, most significantly: the ‘COVID-19 Hospital Discharge Service Requirements’ (“Hospital Discharge Policy”) published on 19 March 2020 and the ‘Admission and Care of Patients During COVID-19 Incident in a Care Home’ (the “Admissions Guidance”) published on 2 April 2020. Human Rights Act claims in relation to European Convention of Human Rights Article 2 (the right to life) and Article 8 (the right to respect for private and family life, home and correspondence) against Government around the policies were dismissed, but certain aspects of the policies were found to be unlawful.
The factual basis of the Court’s focus was on whether the guidance should have recommended that more should have been done to guard against the risk of transmission of Covid by asymptomatic residents admitted to care homes (whether from the community or upon discharge from hospitals). The Court recognised that there was little evidence of transmission from asymptomatic cases at the time of publishing the initial ‘Guidance for social or community care and residential settings on COVID-19’ on 25 February 2020, and that there was no failure to take relevant considerations into account when drawing up that policy.
However, the Court identified after lengthy chronological narrative discussion that the scientific picture was rapidly changing and that the government was becoming aware of the risk of asymptomatic transmission on or around 9 – 13 March 2020; for instance, on 13 March Sir Patrick Vallance said on BBC4’s Today programme - “it looks quite likely that there is some degree of asymptomatic transmission”. It was not until 15 April in the Action Plan for Adult Social Care that the DHSC recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community.
The Court acknowledged that the government was making judgements ‘against a background of uncertain and rapidly developing scientist knowledge’ and was not critical of the overall approach of discharging patients into care homes to increase NHS capacity. Nonetheless, it did find that the Hospital Discharge Policy (of 19 March 2020) and the Admissions Guidance (of 2 April 2020) were unlawful in failing to guard against the risk of asymptomatic transmission by not including a recommendation that asymptomatic patients admitted to care homes (other than those who had tested negative) should, so far as practicable, be kept apart from other residents for 14 days. As summarised in the judgment, those drafting the Hospital Discharge Policy and the Admissions Guidance ‘simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission’.
Whilst the Court has found that the government’s policy of not recommending isolation of new admissions to care homes during this period was unlawful, it still begs the question whether residents and families may bring claims against hospitals for making discharges, or care home operators for accepting new admissions, during that period (mid-March to mid-April 2020) if no such isolation procedures were in place. However, the fact that the Government’s policy has been held to be unlawful does not mean that providers will necessarily be required to pay compensation for following that policy. The prospects of bringing a successful claim would depend upon the test for negligence. However, on the face of it, it would appear that providers may be able to resist such claims on the basis that following government guidance was not an unreasonable step to take at the time, even if certain aspects of that guidance have now been held to be unlawful.