The claimants Dr Cathy Gardner and Fay Harris both lost their fathers to the virus, which claimed more than 20,000 care home residents between March and June 2020 in England and Wales.
Ruling in R (Gardner & Anor) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin), Lord Justice Bean and Mr Justice Graham held the secretary of state’s decision on admissions policy on 17 and 19 March and 2 April 2020 were unlawful. The reason was the policy, which did not require testing to take place before patients were moved, failed to take into account the risk of asymptomatic transmission, even though this risk had been explained by Sir Patrick Vallance from as early as 13 March.
Since the judgment was handed down last week, the former Health Secretary, Matt Hancock, has stated he was not provided soon enough with information about asymptomatic infection.
Writing in NLJ this week, however, John Ford, director of Sinclairslaw, which represented claimants Dr Gardner and Ms Harris in the case, says: ‘The judgment does not support this. The public law claim strikingly succeeded because there was no evidence that the minister had consulted anyone about how residents in care homes were to be looked after and protected following the discharge of hospital patients, some of whom may have been infected with the virus.’
Ford discusses the duty of candour, concluding: ‘It strains credibility to accept that the defendants gave proper disclosure in this case.’
He adds that his clients sought only declarations and it will be for the forthcoming public enquiry to establish exactly what happened and make recommendations.
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