Government loses bid to throw out legal challenge on carehome deaths

Two grieving daughters are behind the legal challenge which could force the Government into court to defend its handling of care homes during the pandemic.

A High Court judge yesterday ruled in favour of Dr Cathy Gardner and Fay Harris, granting them permission for a full hearing against the Government, NHS England and Public Health England.

Dr Gardner accuses the Government of breaching the human rights of care home residents, including her 88-year-old father Michael Gibson.

A virologist herself, Dr Gardner was forced to say goodbye to him through a window of the Cherwood House Care Centre in Oxfordshire.

Ms Harris, 57, joined the legal fight after her 89-year-old father Don, a former Royal Marine, died in May along with 24 other residents of his Hampshire care home.

Dr Gardner argued that key decisions led to a “shocking death toll” of 20,000 care home residents due to Covid-19 between March and June.

Government lawyers asked the judge to dismiss the case, claiming “no arguable basis” to conclude those decisions had not been “reasonable”.

In written documents to the court, Jason Coppel QC, barrister for Dr Gardner and Ms Harris, said: “The defendants’ failure to implement timely, adequate measures to protect vulnerable care home residents from the ravages of Covid represents one of the most egregious and devastating policy failures of recent times.”

The first-stage victory paves the way for a judicial review that could have huge ramifications for the families of at least 30,000 people who died in care homes with Covid this year.

The Government said the aim of the “discharge requirement” introduced in March was “to ensure those who were medically fit” to leave hospital were discharged to prevent the NHS being overwhelmed.

Dr Gardner and Ms Harris said they were appalled at claims by Health Secretary Matt Hancock that a “protective ring” had been placed around care homes.

Dr Gardner’s lawyers claimed that prior to her father’s death the home was pressured to accept a hospital patient who had tested positive but “had no temperature for 72 hours”.

They said Mr Gibson, a retired registrar of birth, marriages and deaths, was primed to catch Covid, despite never leaving the home.

The case accusing the Government of unlawfully exposing care home residents to substantial risk was filed at the High Court in June.

Dr Gardner, also chairwoman of East Devon District Council, believes her father’s death on April 3 was part of a “national disgrace” and the case was for every individual, including care home residents, staff and family members, affected by the Government’s mishandling of the crisis.

Dr Gardner said: “At worst, the government have adopted a policy that has caused the death of the most vulnerable in our society.

“It is completely unacceptable this happened and that responsibility has been avoided.”

Her father’s death certificate said “Covid probably” because he died before he could get access to a test.

Ms Harris had planned to treat her dad Don to a sailing trip in Portsmouth Harbour to celebrate his 90th birthday last month.

She had found a boat adapted to carry wheelchairs so he could once again see the harbour where he was stationed from the sea.

But on May 1, Mr Harris died at Marlfield care home in Alton after an outbreak of coronavirus. Hampshire County Council said a quarter of the 24 deaths there in this period were Covid-related but that could have been higher.

Ms Harris said: “Physically my dad was fit and he was well.

“He always had a smile on his face. When we left him he was mobile.

“He was strong and he was a fighter. He had Alzheimer’s and had had care problems, but he came through them all.

“He should not have died, he should have been on that birthday trip.”

Despite the Government, NHS England and Public Health England opposing the legal action at the remote hearing yesterday, Mr Justice Linden ruled that Dr Gardner’s case “crossed the threshold of ­arguability”.

The judge said: “I consider it in the interests of justice for the claim to be heard.”

In written documents, Mr Coppel QC had argued: “The defendants implemented policies which exposed vulnerable care home residents, including the claimants’ fathers, to the risk of death or serious illness from Covid.