High Court Reconvenes In Landmark Judicial Review

• Published date: 28 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation
• Law Firm: BLM
• Author: BLM &nbsp

Over the last six days the High Court reconvened to hear the judicial review of Gardner v Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England.

The Defendants were accused of failing their duties to ensure the safety of care home residents due to prioritising the objective of obtaining further capacity in hospitals by discharging patients into care homes. It was also alleged they continued to fail their duty by encouraging care homes to follow a symptoms based approach in their published guidance, even when the science suggested that asymptomatic individuals could transmit the disease. These decisions were made during a critical period and involved a known vulnerable population which resulted in excess of 20,000 deaths.

The defence

Mr Eadie QC, instructed by the Defendants, reminded the Court that the question to consider was whether the Defendants had been unlawful in their decision making to allow, and at times encourage, hospital discharges to be admitted into care homes without first being tested for COVID-19. It was brought to the Court's attention that the amount of discharged hospital patients admitted into care homes was a decreased figure in 17 March - 15 April 2020 compared with the same period the year before. Whilst the decreased figure was not due to the Defendant's actions, and some outbreaks of COVID-19 in care homes were likely caused by the promotion of new admissions encouraged by the Defendants, it was interesting to see that there was not a surge of admissions at this time.

The claimants' case

Mr Coppel QC, who was instructed by the Claimants by way of Crowdfunding, claimed that the Defendants were unlawful in their decision making as the published guidance did not follow the scientific evidence at the time. It was accepted that there was not one right solution, but any decision could only be lawful if the risks had been sufficiently weighed and the wider implications considered. Due to the lack of audit trail, Mr Coppel QC tried to persuade the Court that there cannot have been a risk balancing exercise and instead the implications for care homes accepting untested hospital discharges was not considered. Although this was taken into consideration and Lord Justice Bean stated that the weighting of the evidence would be adjusted accordingly, it was also noted that there was no evidence to suggest that any part of the witness statements were untrue.

Mr Coppel QC compared the care...