Legal update
Assessing the Covid guidance judicial review
Michelle Penn and Chris Dexter of law firm BLM analyse the upcoming judicial review brought by Dr. Cathy Gardner against official guidance relating to Covid and care homes, and the impact it could have on the social care sector
In November, Dr. Cathy Gardner won the first stage of a crowdfunded legal challenge against the Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England over measures taken to protect those living in care homes, following the death of her father after he contracted Covid-19. The goal is a judicial review of
government policy decisions relating to the discharge of Covid-positive patients to care homes when there were other vulnerable residents in these homes, alongside an explanation of what policies were put in place to ensure a ‘protective ring’ was placed around care homes. The claim is brought as an alleged
breach of Articles 2, 3, 8 and/or 14 of the European Convention on Human Rights and the Human Rights Act (HRA) 1998. It is also claimed that the fathers of Dr. Gardner and a second claimant, Fay Harris, were discriminated against contrary to the Equality Act 2010 as they were elderly and disabled.
Allegations of duty breach They allege the UK government failed to discharge their obligations under the above Articles to, among other assertions, protect the lives and wellbeing of vulnerable care home residents and that the defendants breached systems and operational duties. In bringing the claim, Dr. Gardner and Ms. Harris are seeking declaratory
relief and such other relief as the Court considers appropriate. They consider that such just satisfaction is most appropriately addressed once the Court has made findings on breach of duty. Dr. Gardner has published the
lodged grounds of the claim in full on her crowdfunding page, where she has now raised just over £110,000.
Counter-claims by defendants The claim is denied by the defendants, whose pre-action challenges included: l Limitation – that the claims have been brought outside of the relevant limitation period.
l Legal standing of the claimants and whether they are ‘victims’ under the HRA.
The Equality and Human Rights Commission has passed comment about the case, stating that ‘we are concerned about potential breaches of older people’s human rights during the pandemic. The tragic death of Dr. Gardner’s father and subsequent legal challenge raises important issues of
April 2021 •
www.thecarehomeenvironment.com
public interest and we are prepared to assist the Court should the judicial review be granted.’ In October, Amnesty International
produced a report entitled As if Expendable, which reviewed the UK government’s response to the Covid-19 pandemic and the effect on the care sector and its residents. In Amnesty International’s view, the UK
government’s response to the pandemic ‘violated the human rights of older people in care homes in England’ and that ‘no effort be spared to establish the factors that resulted in such disproportionate impact on older people in care homes… those responsible for negligent decisions must be held to account’. Amnesty International has called for an
urgent independent inquiry, as its findings and recommendations could inform the management of care homes as the pandemic continues. This timing seems ambitious, given that November has passed and there has been no appetite from the government to expedite such an inquiry.
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