On 27 April 2022, the Divisional Court (Bean LJ and Garnham J) handed down an important judgment about various government policies on care homes during the first wave of the COVID-19 pandemic: R (Gardner and Harris) v Secretary of State for Health and Social Care, NHS England and Public Health England  EWHC 967 (Admin). The Claimants both lost their fathers to COVID-19 in the early stages of the pandemic and argued that the policies adopted at that time were unlawful.
The most controversial policy under challenge related to the discharge of patients from hospitals to care homes. The judgment provides a useful survey of the documents which lay under the very fast-moving events during the pandemic: the discharge policy originated from (1) a letter from NHS England called “Next Steps on NHS Response to COVID-19” sent on 17 March 2020 to health providers; and (2) a government guidance document entitled “COVID-19 Hospital Discharge Service Requirements”, published on 19 March 2020. Further guidance came from the government on 2 April 2020 in a document called “Admission and Care of Residents during COVID-19 Incident in a Care Home”.
As has been widely reported, the Divisional Court made a declaration that these policies were unlawful because, in deciding to adopt the policies, the Secretary of State for Health and Social Care failed to take into account the relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission. Accordingly, the court found, the policies were irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative for COVID-19) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
There is, however, much else in this judgment that is of importance for local authorities and health and social care bodies. In particular, the Claimants argued that there was a breach of the positive obligation under Article 2 ECHR to take appropriate steps to safeguard the lives of care home residents. The court found that there was no such duty in the circumstances of this case, either under what is called the “systems duty” (which, broadly, requires the state to put in place a legislative and administrative framework designed to protect against risks to life) or under the “operational duty” (which, broadly, requires the state to take practical steps to safeguard people's right to life from specific dangers in circumstances where there was a link to the state’s responsibility). The court’s decision on this ground will be of wider significance for health and social care providers because it establishes the principles governing other situations when a duty to protect life may arise in this setting.
On the systems duty, the court found (§227):
“we consider that there is no arguable case that the systems duty has been breached. There is nothing wrong with the framework for the issuing of guidance or policy documents by the Defendants (nor with the allocation of responsibilities between them). The complaint in this case is of the documents' contents. It was rightly not argued that the absence during the relevant period of a statutory power of any of the Defendants to compel private sector care homes to take particular steps in relation to the admission or treatment of residents represented a breach of the systems duty.”
On the operational duty, the court surveyed the case law before summarising as follows (§250):
“We draw the following from the domestic and Strasbourg cases which we have cited:
It then concluded (§252):
“There is no authority of the Strasbourg court which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined a sector of the population as residents of care homes for the elderly. There is no clear and consistent line of Strasbourg authority which indicates that such a duty exists and we cannot be at all confident – indeed we gravely doubt – that the ECtHR would be willing to declare that it does. We should keep pace with the Strasbourg jurisprudence, but not run past it and disappear into the distance. The Defendants did not, in our view, owe the Article 2 operational duty for which the Claimants contend.”
As the court found no duty arose at all, there was no need for it to consider issues relating to the margin to be afforded to public bodies in these circumstances or whether the steps which were argued should have been taken would have amounted to a disproportionate burden (§253).