Court Finds Government's Covid Policy In Care Homes Unlawful

• Published date: 05 May 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa

In R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin) the Divisional Court has found that arrangements by the Department of Health for discharging patients from hospitals to care homes during the pandemic were unlawful.

Key points

• Article 2 of the European Convention on Human Rights (ECHR) (the right to life) contains both a 'systems duty' and an 'operational duty'. The systems duty requires the state to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty requires the state to take practical steps to safeguard people's right to life from specific dangers where there is a link to the state's responsibility.
• A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty. The duty may exist even in the absence of an assumption by the state of responsibility, where it has become aware of dangerous situations involving a specific threat to life. In appropriate circumstances the operational duty may also arise where the state engages in activities which it knows or should know pose a real and immediate risk to the life of a vulnerable individual or group of individuals.
• The implementation of protective measures in relation to care homes during the pandemic did not trigger state responsibility under Article 2 or Article 8 (the right to respect for private and family life) of the ECHR.
• In considering whether the decisions made and the policies promulgated by a public body are unlawful by the standards of public law, the Court has to consider the facts as they were presented at the time to the decision makers. The Court must ask whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

Background

The daughters of two care home residents who, along with 20,000 others, died of COVID-19 in a care home in England in April and May 2020 (the Claimants) brought a claim for judicial review against the Secretary of State for Health and Social Care (SoS), NHS England (NHSE) and Public Health England (PHE) (the Defendants) in relation to four policies issued between 13 March and 15 April 2020.

Judicial review was sought on three grounds:

• Breaches of the Claimants' fathers' rights under Article 2 and Article 8 of the ECHR (the ECHR claims).
• Unlawfulness...