The Government policy during the early stages of the pandemic of decanting hospital patients to nursing homes without testing or isolation has been found to be irrational.
The recent case of R (on the application of) (1) Doctor Cathy Gardner (2) Miss Fay Harris v (1) Secretary of State for Health and Social Care (2) NHS Commissioning Board (NHS England) (3) Public Health England [2022] EWHC967 was one taken by a number of Claimants who had lost their parents due to alleged failures on the part of a number of parties involved in moving elderly patients from hospitals to nursing homes.
In summary, the concerns raised by the Claimants were as follows: -
- Failure to assess the risk to the lives of care home residents;
- Failure to consider adopting a policy of testing hospital discharges before admission to a care home;
- Failure to consider the likelihood of transmission from persons without symptoms until mid-April 2020;
- Adopting a policy without taking any additional steps to safeguard the vulnerable care home residents who would be exposed to Covid-19 infection as a result;
- Misleading the public in stating that the UK Government had thrown a protective ring around the care homes.
Whilst some of the claims were dismissed principally against the NHS Commissioning Board, the court nevertheless concluded that the Secretary of State and Public Health England ought to bear the responsibility of failing to put in place appropriate arrangements for patients moving from hospital to care homes.
The court specifically referred to the two policies being the March Discharge Policy dated 17 March 2020 and 19 March 2020 and the Admission and Care of Patients During COVID-19 Incident in a Care Home Policy dated 2 April 2020.
The court concluded that by the above dates, it was clear that there was a body of evidence which had been considered which concluded there was a significant degree of risk of the asymptomatic transmission of the Covid virus between individuals. The court could not find any evidence that the UK Government had adequately addressed the issue of risk to care home residents of asymptomatic transmission. The two above policies failed to consider the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission. Further, the court noted that subsequent polices of testing and isolation for 14 days for new residents admitted to nursing homes represented “a significant delay at a critical period”.
Whilst this case involves parties based in England, it seems clear that separate and very similar decisions were made by the Scottish Government concerning the movement of hospital patients to nursing homes. Further, it is also very likely to be the case that such policies led to similar mistakes being made in transferring patients to nursing homes and that particularly there was a lack of any testing and isolation processes in place in that early period.
Indeed, in March 2021, the BBC Scotland released their interactive dashboard mapping care home fatalities from Covid. By that stage, there had been over 10,000 Covid relates deaths in Scotland with approximately one third having occurred in nursing homes. Figures suggest that more than 1,300 patients were discharged from hospital into care homes in Scotland to free up hospital beds.
Nicola Sturgeon has already called for a four-nation inquiry into the pandemic by the end of the year. She has already confirmed that she believes the way the elderly people were discharged from hospital to care homes in the early stages of the pandemic was a mistake.
Whilst the four-nation inquiry may not necessarily apportion blame for any decisions made, it does seem clear that the above court case will be followed by one similar in Scotland. It is likely that any Inquiry will take at least 2 years to report.
Accordingly, any family seeking redress for such mistakes made which has led to the loss of a loved one may be considering launching litigation well in advance of the outcome of any inquiry. Any claimant has a period of 3 years from the date of the death to make their application to the court seeking damages for redress.
If you would like to read more about this topic, you can read our page on Covid-19 Negligence claims here.
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