Government won’t appeal ruling on unlawful care home discharge policies

The Government has said it will not be appealing against a High Court ruling which stated it acted unlawfully by discharging untested hospital patients into care homes during the early stages of the Covid-19 pandemic.

Last week, senior judges ruled policies 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 coronavirus.

It came after a claim was brought against the Government by two women – Cathy Gardner and Fay Harris – whose fathers died from Covid-19.

Former health secretary Matt Hancock apologised for people’s ‘pain and anguish’ following the ruling.

On Wednesday, the Government said it would not be pursuing an appeal.

A spokesperson said: ‘The Government notes the court’s judgment and that the court dismissed most aspects of the claimants’ judicial review.

‘While we are disappointed that the court did not accept all of the points we put before it, we do not see a public interest in an appeal on those points, as the right place for these matters to be considered is the public inquiry.

‘Our thoughts are with all those who lost loved ones during the pandemic. Our aim throughout has been to protect the public from the threat to life and health posed by Covid and we specifically sought to safeguard care home residents.’

In the early part of the pandemic in 2020, patients were rapidly discharged into care homes without testing, despite the risk of asymptomatic transmission, with Government documents showing there was no requirement for this until mid-April.

The judges said there was no evidence that Mr Hancock – or anyone advising him – addressed the issue of the risk of asymptomatic transmission to care home residents in England, or that he considered or was asked to consider the question of isolating asymptomatic admissions.

However, they added that the ‘growing appreciation that asymptomatic transmission was a real possibility ought to have prompted a change in Government policy concerning care homes earlier than it did’.

They pointed out that these risks were highlighted as early as March 13 by figures including the Government’s chief scientific adviser, Sir Patrick Vallance, who said it was ‘quite likely’.

In a previous statement, Mr Hancock’s spokesman said Public Health England had failed to tell ministers about asymptomatic transmission and he wished it had been brought to his attention sooner.

More than 20,000 elderly or disabled care home residents died from Covid-19 in England and Wales during the first wave (up to the end of August 2020).

Care groups welcomed the ruling as a ‘first step to justice’, but said bereaved families will be asking why more was not done to protect their loved ones.

They also dismissed Mr Hancock’s claims that the Government tried to put a ‘protective’ ring around care homes, branding this ‘non-existent’, a ‘sickening lie’ and a ‘joke’.

Asked if he regretted using the phrase, Mr Hancock said the Government ‘did all that we could with the information that I had at the time’.

He said officials had introduced stronger rules, including limiting staff movement between care homes, before the second wave hit and said the pandemic response was ‘all about learning’.

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