Help me hold the government to account for Covid-19 care home deaths

by Cathy Gardner

Help me hold the government to account for Covid-19 care home deaths

by Cathy Gardner
Cathy Gardner
Case Owner
My father was one of the thousands who died in a care home during this pandemic. I am launching this action to hold the government to account for not protecting elderly people in care homes.
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Cathy Gardner
Case Owner
My father was one of the thousands who died in a care home during this pandemic. I am launching this action to hold the government to account for not protecting elderly people in care homes.
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Latest: June 2, 2021

Hearing scheduled for October but key documents are still missing

The Court has confirmed a final hearing date, but we have serious concerns regarding the Government's failure to disclose key documents

After a series of moves by the Government that have signific…

Read more

My father was one of the thousands of vulnerable people who died in a care home during this pandemic. His death certificate says ‘probable COVID-19’ because he was not tested. The care home should have been a safe place, instead he was put at risk because of a government decision to discharge patients from hospitals with no regard for Coronavirus infection risk.

I am launching legal action to hold the government to account. To seek justice for my father, me and everyone affected by their actions. Please donate what you can and share this page far and wide on social media, via email and WhatsApp.

My father's story

My father became ill on March 14th and died on April 3rd. The home called me regularly with updates and I was able to go and see him through a window the night before he died. This was heart-breaking, it’s not how I imagined his last days would be. Although he had Alzheimer’s Disease, he still recognised me, I could see the love in his eyes. Thanks to lockdown, I had not seen him since the end of February and thanks to the virus in the care home I could not hold his hand and give him a smile near the end. I know the carers were wonderful and did their best to make him as comfortable as possible, but I am extremely angry that an ill-thought out policy has caused me, and thousands of others, so much anguish. I knew that losing my father would be tough, losing him in these circumstances is truly devastating.

Why was this allowed to happen?

On 19th May 2020 the London School of Economics estimated that 22,000 people in care homes lost their lives to COVID-19. These people, like my father, were the most vulnerable in our society. I believe that many of these deaths could have been avoided if the Government had acted to protect these people. Rather than protect them the Government made their care homes a death trap. Many care workers were also exposed to unacceptable and avoidable risks, and some have lost their lives. 

On 15th May 2020 Matt Hancock, the Secretary of State for Health and Social Care made a public statement that “Right from the start its been clear that this horrible virus affects older people most. So right from the start we’ve tried to throw a protective ring around our care homes. 

However, this is simply not true. 

On January 30th 2020, the World Health Organisation Emergency Committee declared that the outbreak of COVID-19 met the criteria for a Public Health Emergency of International Concern. However, in February 2020 the Secretary of State published Guidance which said , “ It is therefore very unlikely that anyone receiving care in a care home or the community will become infected…There is no need to do anything differently in any care setting at present. “ At this time at least 3 people had been diagnosed with COVID-19, one of whom was a super-spreader. 

Shortly after this on 2nd March  2020 the Scientific Pandemic Influenza Group on Modelling reported that it was “highly likely that there is sustained transmission of COVID-19 in the UK at present. “

Despite the rapid spread of COVID-19 care homes were only advised on 2nd April 2020 that visits should not be permitted save in exceptional circumstances. Worst still, on 19th March 2020 the Secretary of State required the urgent discharge of patients from hospitals back into care homes without being tested for COVID-19. I believe this made care homes a death trap, exposing vulnerable people to a disease that could kill them. Their safe place became a dangerous place.

On 19th May 2020 Professor Martin Green, the Chief Executive of Care England gave evidence to the House of Commons Health and Social Care Committee in respect of ‘Management of the Coronavirus Outbreak’. He said:

“Given that the care homes are full of people with underlying health conditions, we should have looked at focusing on where the people at most risk were, rather than thinking about particular organisations, when we were prioritising where we put our energies“.

It is very clear that, whatever Matt Hancock may have said, the residents of care homes were not provided with a protective ring. He knew they were the most at risk and yet he issued a policy that exposed them to the risk of losing their lives. Many did. My father did.

What are we going to do about it?

My lawyers have written to the Secretary of State, NHS England and Public Health England pointing out their legal duty to protect life. My lawyers have requested that they accept responsibility for their unlawful conduct that has contributed to the death and serious illness of my father, patients, healthcare and care workers. If the proposed defendants refuse to accept responsibility then I will commence legal proceedings.

Please give what you can to help me bring this case on behalf of the most vulnerable in our society as well as the excellent workers who have been put at much greater risk.

Please donate to my campaign - any amount helps - and share this page far and wide on social media, via email and WhatsApp.

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Update 7

Cathy Gardner

June 2, 2021

Hearing scheduled for October but key documents are still missing

The Court has confirmed a final hearing date, but we have serious concerns regarding the Government's failure to disclose key documents

After a series of moves by the Government that have significantly delayed the progress of the case, we are pleased to report that the Court has now listed the final hearing of the claim. This will commence on 19 October 2021 and is likely to last for three days.

We have also now received the Government and NHS England's detailed defences, witness evidence and disclosure.

Whilst we are pleased that the Court has listed the final hearing, the Government's witness evidence and disclosure raise a number of very serious concerns, which are likely to require us to make a number of further applications to the Court in advance of our final hearing.

Our initial view is that there are very serious gaps and omissions in the documents that the Government and NHS has provided and that the Defendants are attempting to suppress disclosure of important documents, with the effect of preventing the Court being able effectively to scrutinise the Defendants' decisions.

In particular, the Government's witness evidence and disclosure includes little or no material recording the involvement of key decision-makers such as the Secretary of State for Health (Matt Hancock MP) and the Prime Minister in the decision-making processes.

Similarly, the Government appears to be seeking to avoid disclosing the documents recording what, if any, advice was given on the key decisions by the Government's most senior scientific advisers, such as the Chief Scientific Adviser (Sir Patrick Vallance) and the Chief Medical Office (Chris Whitty).

We listened with interest to the important evidence provided last week by Dominic Cummings, which revealed that the Government and NHS policy of discharging COVID positive and untested patients to care homes without testing was discussed and approved by the Prime Minister (Boris Johnson) in No. 10 in March. Mr Cumming's has stated that this approval was granted on the basis of Matt Hancock unequivocally assuring the Prime Minister that all patients transferring to care homes would be tested, and that this meeting was attended by a number of other senior officials.

Mr Hancock has subsequently been repeatedly challenged by the media in public to confirm or deny that he provided these assurances. Thus far, he appears to be going to great lengths to avoid giving a straight answer.

No documents recording this important meeting at No. 10 have been disclosed by the Defendant.

We will be pressing to obtain these documents, together with the other key documents referred to above.

We are also very seriously concerned about certain aspects of the Government's witness evidence, which includes assertions and claims which are directly contradicted by public statements which Ministers and senior Government officials made at the time the decisions we challenge were made in March and April 2020.

While we are still working through the issues, it seems likely that we will need go back to Court before the final hearing of our claim in order to ensure that the Government complies with its duty of candour, so that the Court is provided with the information it needs to fairly determine our claims.

The Government and NHS England continue to rely on a number of remarkable, untrue, claims which the Prime Minister and Health Secretary have previously used to try to evade responsibility for the tragic consequences of their care home policies.

Astonishingly, the Government and NHS England now say that they did not really know about the risk of asymptomatic spread of COVID-19 until mid-April 2020. They rely on this claim to argue that it was not unreasonable to adopt and implement a policy of transferring c. 25,000 potentially COVID-19 infected patients into care homes without testing or quarantine during March-April 2020.

These claims are not consistent with the Defendants' own documents (for example the January 2020 SAGE minutes), which show that the Government was well aware of the risk of asymptomatic transmission from January 2020 onwards.

The Government and NHS also attempt to deflect the blame for their failings onto individual clinicians, care homes and/or local authorities, claiming that individual care homes were responsible for not being able to maintain infection control of COVID-19 infected patients and that it was the responsibility of care homes or local authorities to assess whether it was safe for patients to be transferred into a care home. In circumstances where the Government/NHS was directing care homes that 'all' patients could be safely cared for in care homes if the Government's (inadequate) guidance was followed, this is (in our view) outrageous.

Finally, the Government continues to attempt to defend Boris Johnson’s obviously false statement that it brought in a ‘lockdown’ in care homes ahead of the general lockdown on 23 March 2020.

The Government argues that this statement is 'true' because care homes were advised shortly before 23 March to 'review' their visiting policies and isolate any residents within the home who displayed COVID symptoms. We do not think any reasonable or sensible person would consider that advice to 'review' a visiting policy constitutes a 'lockdown'.

Fundamentally I believe that this Government, the DoH&SC, PHE and the NHS, failed to protect residents of care homes. This failure is encapsulated by the Discharge Guidance that resulted in infectious patients being sent to care homes. How and why this decision was taken, and by whom, are central questions for me. This decision was disastrously wrong and we must hold those responsible to account. 

I want to again say a huge thank you for all of the support that you’ve given me so far on my case. It really does mean a great deal to me and the other claimants.

Please do continue to share this page and help me to hold the Government to account, in front of the High Court this October, for its appalling failure to protect care home residents from the ravages of COVID-19. Any donations will help ensure we can fight this case as strongly as possible. 

Dr Cathy Gardner

2 June 2021

Update 6

Cathy Gardner

March 24, 2021

Still waiting....but chasing

It seems like a lifetime ago that we were granted permission for the Judicial Review. That was on November 19th 2020. At the time, the government's legal team were arguing against an early court date, which could have been this spring. Since then my legal team have been following up with the court to get a date for the hearing, with no success. We're now pushing harder because it seems that the delay is now due to the court backlog.

Hopefully I'll be able to update this page with a date very soon. It still seems likely that the hearing will be later this year, which is frustrating for me and all those affected by the issues in this case. Meanwhile the call for an independent public inquiry is growing louder too. We need to hold our government to account. With your help I have been able to bring this case and with your continued support I know we will get there.

Thank you

Cathy


Update 5

Cathy Gardner

Nov. 19, 2020

Permission granted!

As you may have heard in the news Mr Justice Linden granted the case permission to proceed to a full trial. Despite the best efforts of the Government and NHS to get the case thrown out the judge ruled that we had an arguable case with reasonable prospects of success. The judge recognised the wider public interest in the case and that it affects the lives of many people who have lost loved ones in the pandemic. Simply put, he accepted that it is arguable that the Government unlawfully failed to protect the lives of care home residents.

A huge amount of work has been done to get the case to this significant point. There is much more to do. The government and NHS have to file their detailed evidence by 22ndJanuary 2021 and we then have an opportunity to file evidence in reply. For the first time we will see what the Government’s reasoning was in making some of the disastrous decisions they took – for example the requirement to urgently discharge patients from hospital without COVID-19 tests in March this year.

We expect the trial to take place around April/May next year.

We need continue to raise funds to be able to hold the Government to account for the loss of so many lives. I am so grateful for your generosity that has helped us get to this highly significant moment. Please share this page and many thanks again for all your donations and kind comments of support.

Update 4

Cathy Gardner

Sept. 11, 2020

A court date but no decision!

This week I received confirmation from the Court that a Judge has deferred a decision on whether the case can be heard, by passing it to a court hearing.  This means that a hearing will determine if I should be able to have a full trial that examines the legality over the Government’s protection of residents in care homes.

This is unusual as the Court usually makes these decisions without the need for a hearing. However, it is also highly unusual that a Government has behaved as it has towards its most vulnerable citizens. It is also highly unusual that ordinary people seek to hold it to account through the Courts.

The hearing will take place on Thursday 19th November. The Court will have to decide if is arguable that the Government has acted illegally. If there is that possibility, then it will direct that a full trial takes place.

This decision is disappointing because it delays any ruling on this important matter and could mean we don’t get to Court until 2021. Part of the case concerns the ongoing risk to residents and staff in care homes now, so any delay is concerning.

The hearing on 19th November will be virtual. It seems as though it will be possible for a limited number of people to view, but I will post information about this when I get it. The ruling is usually given on the day.

I also had some good news recently when the Equality and Human Rights Commission, the public body concerned with discrimination, wrote to the Court expressing their concern about the way the Government has acted regarding care homes. In their letter to the Court they said : “The Commission considers that this case raises potentially important issues of public interest and concern as to the way in which the rights of care home residents have been, and will be, protected during the current Corona virus pandemic.”  Their involvement is encouraging as it is lends weight to this critical case.

https://www.theguardian.com/society/2020/sep/03/rights-watchdog-backs-court-action-over-covid-deaths-in-english-care-homes

Please continue to share the Crowd Justice page as it is the best source of information on the status of the case. Thank you to everyone who has donated and for the supportive comments that many of you have written.

Dr Cathy Gardner   11.09.20

Update 3

Cathy Gardner

Aug. 16, 2020

Government files full defence; PAC report excoriates gov't actions

Late last month the Government filed a full legal response to my claim, to which my lawyers have now replied. Amazingly, the Government’s focus has been to try to knock out my claim on procedural grounds rather than to provide a full and transparent explanation for its handling of the crisis. In particular:

  • The Government has suggested that it is wrong in principle to consider the full scope of its failings in respect of care homes. In other words, it is saying that, in challenging the Government over my father’s death, I am not allowed to rely on the policies that caused it and the broader context – even though both are key to the case.
  • The Government says that I am not allowed to challenge some of its policies on care homes because they were introduced after my father contracted COVID-19. It says that, as a result, I have no “standing” to challenge these policies, even though my father died after the Government had told hospitals to discharge patients to care homes without any safeguards. This point also misses the fact that my father was never tested for coronavirus, his death was ‘probable COVID-19’.
  • The Government says that, because I brought my full claim just over three months after my father died, I have “delayed” too long and have not acted promptly. Its case seems to be that I should have been able to bring complex legal proceedings while in the immediate stages of grief after my father’s death, and despite having no legal training or support at that time.
  • The Government has also said that much of my claim is “academic” because some of the Government’s disastrous care home policies have now been withdrawn. My lawyers have argued back that many of the Government’s failures are ongoing, and that, in order to hold the Government to account , my claim must still be allowed to proceed in any event.

My legal team will keep pushing for the claim to be heard, and I will update this page again when there are any further developments. Since the claim was filed, it’s been striking to see that even many politicians in Boris Johnson’s own party have been deeply critical of his handling of the pandemic in care homes. The House of Commons Public Accounts Committee, on which Conservative MPs are the majority, concluded in a report on 29 July 2020 that:

Discharging patients from hospital into social care without first testing them for COVID-19 was an appalling error. Shockingly, Government policy up to and including 15 April was to not test all patients discharged from hospital for COVID-19. In the period up to 15 April, up to a maximum of five symptomatic residents would be tested in a care home in order to confirm an outbreak. Belatedly, after discharging 25,000 people from hospitals to care homes between 17 March and 15 April, the Department confirmed a new policy of testing everyone prior to admission to care homes. 

 Public Health England confirmed that it was already becoming clear in late March, and certainly from the beginning of April, that the COVID-19 infection had an asymptomatic phase, when people could be infectious without being aware they were sick. The Department does not know how many of the 25,000 discharged patients had COVID-19. The number of reported first-time outbreaks in individual care homes peaked at 1,009 in early April. Between 9 March and 17 May, around 5,900 care homes, equivalent to 38% of care homes across England, reported at least one outbreak. The Department says that it took rational decisions based on the information it had at the time, but acknowledges that it would not necessarily do the same thing again” (emphasis in original).

The Committee also said that the Government’s policy of discharging patients straight from hospital into care homes was “reckless and negligent”, and that the Government had continued with the policy even once it was clear that there was an emerging problem. Care homes were, the Committee’s Chair Meg Hillier MP concluded, “thrown to the wolves”. Incredibly, at the same time as defending to the hilt its policies in England, the Scottish Conservative Party have accused the Scottish government of acting unlawfully in respect of care homes north of the border.

I remain outraged that the Government’s dithering, incompetence and outright failure to lead has caused the premature death of my father and thousands of other vulnerable care home residents. I will continue to fight for justice for him, and for them, for as a long as I can. Please do keep sharing this page if you can – every donation helps.

Dr Cathy Gardner

16.8.20

Update 2

Cathy Gardner

July 11, 2020

Full claim filed; Boris Johnson’s misleading statements

Last Friday, 3 July, my lawyers filed my full legal claim in this case. Since then the Prime Minister, Boris Johnson, has continued to make misleading statements about the Government’s actions in respect of care homes during the pandemic. In response to the Government’s continued refusal to face up to and acknowledge its gross mishandling of this crisis, I have decided to publish my claim in full. It can be viewed  using the link here.  [Click on the word 'here' and it will take you to the document in a new tab]

The claim itself is legally complex. But one thing it does do is set out the facts on how the Government failed care home residents and workers. In doing so, it throws into sharp relief how Boris Johnson’s recent statements on the Government’s handling of the pandemic have been misleading. I would like to take some of Boris Johnson’s recent statements and see how they stack up against the account given in my claim.

Misleading statement #1: “We discovered too many care homes didn’t really follow the procedures in the way that they could have”  https://www.theguardian.com/society/2020/jul/07/care-home-chief-denounces-clumsy-and-cowardly-boris-johnson-comments

One thing that’s become apparent recently is that the Government has been trying to shift the blame for the pandemic in care homes onto care homes themselves, and by implication those living and working in them. That strategy is clear from Boris Johnson’s statement, the other day, that care homes “didn’t really follow the procedures”. Yet as my lawyers explain in my claim:

(1) Care homes were being told specifically, until mid-March, that there was “no need to do anything differently”: see paragraphs 53 and 54 of my claim. So until mid-March, at least, there weren’t any procedures for care homes to follow, because Boris Johnson’s government was telling them to carry on with business as usual.

(2) Care homes were forced, throughout March and for much of April, to take in patients who had just been discharged from hospital and who had not been tested for Covid-19: see paragraphs 70 - 78 of my claim. There are even stories of hospitals, in following the Government’s instruction to discharge as many patients as possible, trying to trick care homes into taking them: see paragraphs 92 and 94 of my claim.

(3)  On 2 April the Government published guidance saying among other things that “care home staff who come into contact with a COVID-19 patient while not wearing PPE can remain at work”: see paragraphs 84 - 87 of my claim. This guidance was immediately questioned by industry bodies as being unsafe, which it clearly was: see paragraph 87 of my claim. So it appears that it was the Government, not care homes, who did not know what it was doing.


Misleading statement #2: “nobody knew early on” about asymptomatic transmission  https://www.independent.co.uk/news/uk/politics/boris-johnson-care-home-deaths-coronavirus-apology-a9607691.html

Another tack the Government has adopted, to shift the blame, is to argue that it simply didn’t know, when formulating its policies on care homes, that Covid-19 could be transmitted asymptomatically.

But this, too, is wrong. As my claim makes clear, the Government’s own advisory group warned as early as January 2020 that the virus could be transmitted by asymptomatic patients: see paragraph 40 of my claim. This fact was made clear to the Government on numerous other occasions early in the pandemic: see paragraphs 44, 45, 69 and 73 of my claim for what the Government knew about asymptomatic transmission as early as February and March. Not only that, asymptomatic transmission of viruses is well known and should have been accounted for.


The Government’s consistent failure to tell the truth 

Boris Johnson’s recent statements follow this Government’s consistent efforts to mislead the public over how it has handled the pandemic. In earlier false claims, the Government alleged that “right from the start” of the pandemic it had “thrown a protective ring” around care homes, and that it had brought in the lockdown in care homes ahead of the general lockdown. Both of these statements, too, appear to be untrue: see paragraphs 118, 145-146, 150 and 220-221 of my claim.

In the face of a Government determined to lie and obfuscate rather than face up to its failings, I will continue to fight for justice for my father and the thousands like him who have died, unnecessarily, in care homes in the course of this pandemic. I will continue to update this page as the case develops. Thank you to all who have donated or been following the case so far, and please do continue to spread the word.

Update 1

Cathy Gardner

June 22, 2020

Inadequate response from government

I have now heard back from the Secretary of State for Health and Social Care; Public Health England and NHS England. Surprisingly, there is no acknowledgment of any responsibility, nor is there any explanation as to why hospitals were advised to discharge patients into care homes without testing or measures to protect vulnerable residents.  My solicitors requested an explanation as to what policies were actually put in place to ensure “a protective ring” was cast around care homes right from the start, as Matt Hancock has alleged. The Department of Health and Social Care completely failed to answer that question and refused to provide any documents to explain what was done and why.  They have simply asserted that they took unspecified “extensive measures to protect the people who live and work in care homes in response to the risks posed by COVID-19”.

The defendants have failed to engage with my concerns, failed to disclose relevant documents and have sought to hide behind procedural objections. They dispute that I have legal standing to bring my claim, argue that the claim is brought too late and – most surprisingly of all – assert that it is not in the public interest for my claim to be heard.

This is a shameful reply when thousands of very vulnerable people have lost their lives, leaving me and many others bereaved. I have therefore instructed my solicitors to proceed with the litigation. I am bringing this case now so that the plight of residents and staff in care homes is not allowed to be given low priority again.

I am very grateful for the many messages of support that I have received from the public as well as the moving accounts of so many who have lost loved ones. The public has generously given to this case. We have only just begun and my legal team are now urgently building the case. I am taking on the Government, who seem determined to avoid responsibility. Please continue to donate and share the details with as many people as you can.

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