Divisional Court hands down judgment in judicial review of Government’s COVID-19 policy on care homes

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 [2022] 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:

1. 1. a real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty;
   2. generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals, of whom prisoners, detainees under mental health legislation, immigration detainees and conscripts are paradigm examples since they are under State control;
   3. however, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent and unlawful acts of others (Osman v United Kingdom (2000) 29 EHRR 245) or man-made hazards (Öneryildiz v Turkey (2005) 41 EHRR 20, Kolyadenko v Russia (2013) 56 EHRR 2) or natural hazards (Budayeva v Russia (2014) 59 EHRR 2), or from appalling conditions in residential care facilities of which the authorities had become aware (Nencheva v Bulgaria (Application no. 48609-06, unreported, 18 June 2013), Centre for Legal Resources on behalf of Campeanu v Romania (2014) 37 BHRC 423);
   4. Watts v United Kingdom (2010) 51 EHRR SE5 suggests that, in appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know pose a real and immediate risk (according to R (Maguire) v Blackpool and Fylde Coroner [2021] QB 409, an exceptional risk) to the life of a vulnerable individual or group of individuals.”

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).

Gardner was one of The Lawyer’s Top 20 Cases of 2022. The judgment was covered by the BBC, Sky News, the Telegraph, the Guardian, the Daily Mirror and the Daily Mail.

Yaaser Vanderman and Charles Bishop acted for the Secretary of State for Health and Social Care and Public Health England.