We were interested to read the High Court’s ruling that the Government’s policy to discharge patients from hospitals to care homes at the beginning of the Covid-19 pandemic was unlawful.

The case was brought by Fay Harris and Dr Cathy Gardner whose fathers sadly passed away after contracting Covid-19 whilst in a care home. Harris and Gardner were critical of the implementation of the policy without appropriate testing provisions being available or suitable guidance regarding isolation arrangements being in place. 

Estimates suggest that as many as 16,000 people were discharged from hospitals to care homes without testing during the first wave of the pandemic.

In their judgment, Lord Justice Bean and Mr Justice Garnham found that; “although there had been growing awareness of the risk of asymptomatic transmission (as shown for example by Sir Patrick Vallance’s interview of 13 March and Professor Doyle’s evidence to the Select Committee on 26 March), there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission.”

This outcome is significant for the care sector, as the UK Covid-19 Inquiry (the Inquiry) will begin shortly. Whilst the judgment is not binding on the Inquiry, one of the terms of reference for the Inquiry will be; “the management of the pandemic in care homes and other care settings, including infection prevention and control, the transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, and changes to inspections”. We can expect the Inquiry to see similar evidence to that seen by the High Court.

The judgment lends weight to the argument that the Government’s “protective ring” around care homes was not as “protective” as promised. It demonstrates the challenges faced by providers during the first wave in responding to government policy and provides further evidence as to the failure of the Government to properly understand and give appropriate support to the social care sector.