Legal update


As there is no guarantee of a quickly commissioned inquiry, it raises the possibility of similar claims being brought by bereaved and frustrated relatives of care residents who contracted Covid-19. Terminology used in the Amnesty


International report suggests that those who are responsible for negligent decisions should be held to account, but as there is no guarantee of a quickly commissioned independent inquiry, it raises the prospect of new claims being brought by other bereaved and frustrated relatives of care home residents who contracted Covid-19.


Risk to care providers If the claims are brought in the same form as Dr. Gardner’s case, they will need to be commenced quickly to avoid the potential argument of the claim being statute barred. It is possible that if breaches of the


HRA are claimed, then these will be made before the end of March 2021. Care providers and their insurers should be live to the fact that such formal claims could be commenced imminently. It may well be that the initial litigation


is directed at the government and their decision-making over discharge of Covid-19 positive hospital patients into care homes, but the risk is that private care providers will be brought into these claims if they accepted these patients from hospitals and carrying out the systems alleged to have been in breach of the HRA. Working in a care home during the


first wave of the pandemic was no doubt extremely stressful and upsetting for the staff. Not only in their wish to provide reasonable care to the residents and protect those residents from harm but also in preventing themselves from contracting Covid-19. To then have their actions challenged will likely add further stress to an already stretched workforce. Permission for this legal challenge has


been granted on all grounds, with a full hearing most likely going ahead in April to


May 2021, with the judge confirming that it is in the interests of justice for it to be heard. The judge, Mr. Justice Linden, has


already commented that claimants had “crossed the threshold” and he did not accept the defendants’ argument that he should refuse permission on the grounds that the claim is academic, as the government policies in question had already been superseded. Mr. Justice Linden also commented


that it remains to be seen whether the claimants will succeed on ‘victim’ status arguments in respect of the HRA claims. The defendants will now be required


to prepare their detailed grounds of response, involving a substantial disclosure exercise. The claimants hope disclosure will include the advice the defendants received from the scientists, which the defendants argue formed the basis of the policies at the time. When this case came into the public discourse, there was some expectation that there would be a spike in alleged


Care providers and their insurers should be live to the fact that such formal claims could be commenced imminently


20


breaches of the HRA. Although the care sector had expected a significant number of civil claims to have been started by now in relation to Covid-19 related deaths, these cases have so far not materialised. Overall, the public has been supportive


of the care sector and took issue with the government’s initial planning, particularly in the ‘first wave’, so the fact a case against the government has attracted the most publicity is not surprising. It is unclear if there is the same level of public support for the care sector in relation to the ‘second’ and ‘third’ waves of the pandemic.


Implications for the care sector If Dr. Gardner is successful in her claim that the government has breached its HRA obligations, and a care provider followed that advice, then there is a risk this provider could get brought into a civil action lawsuit as a co-defendant. However, there would then be the


potential defence that following government-endorsed guidance in the circumstances was reasonable, as this argument could apply in the case of a regulatory investigation against a care home. Currently, there is no precedent that


would indicate HRA liability can be passed up the chain in the form of an indemnity or contribution. There would be several reasons why proceedings should not be brought for


www.thecarehomeenvironment.com • April 2021


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57