Help me hold the government to account for Covid-19 care home deaths
Help me hold the government to account for Covid-19 care home deaths
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Latest: April 28, 2022
Yesterday (27/4/22) the High Court ruled that decisions of the Secretary of State for Health, Matt Hancock, were “irrational” and so unlawful, because he had failed to consider the known …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.
April 28, 2022
Yesterday (27/4/22) the High Court ruled that decisions of the Secretary of State for Health, Matt Hancock, were “irrational” and so unlawful, because he had failed to consider the known risk that people entering a care home without Covid symptoms would transmit the virus to the highly vulnerable care home population.
From March 2020, the Government’s policy was to free up hospital beds by discharging people into care homes. In March and the first half of April, care homes were told to care for residents without obvious Covid symptoms “as normal”, taking no extra precautions like wearing PPE or quarantining new residents. This was despite what the Court called a “growing appreciation that asymptomatic transmission was a real possibility”. The result was that people were discharged from hospitals into care homes who hadn’t been tested, and who were infected with Covid, and permitted to mix straightaway with other residents in their homes. More than 20,000 care home residents died of Covid during the first wave of the pandemic in what the Prime Minister himself has described as “an appalling epidemic”.
The Court said that: “Anyone devising a policy affecting care homes must, if they are to act rationally, bear in mind that a majority of residents of care homes are not only elderly but also have other health issues which make them particularly vulnerable to infections”. … “Those drafting the March Discharge Policy and the April Admissions Guidance”, the two government policies under challenge, “simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
Although there is to be a public inquiry it is only the Court that can rule on whether the Government acted unlawfully in its claim that it protected care home residents from Covid. The Court stated that this was an “important and legitimate” case.
We have held the Government to account and we hope that the most vulnerable in our society will not be overlooked and ignored in any future health emergency. It has been a long and draining journey to bring this case to court. We brought it not only for our families but on behalf of the many families in the country who lost loved ones. Ultimately we succeeded. We are grateful to all who have donated to help bring this case to court.
Although we have won, we still have significant costs. The Government are protected from paying all of our costs and so we make a request that if you would like to donate, please do so.
March 21, 2022
The trial is over, we await the verdict
Our trial concluded today, March 21st 2022, after 6 days during which the Government has sought to justify its failure to protect care home residents during the first wave of the covid pandemic. It has sought to justify the approach it adopted by stating that it considered the risk of asymptomatic transmission to be low at the beginning of the pandemic. It said that its policies therefore on discharging patients from hospitals into care homes, without testing or isolating them, was therefore justified. The Government also sought to argue that the pandemic was an exceptional situation where it and the NHS faced very significant challenges. It was therefore justified in adopting the policies that it did.
During the trial my legal team challenged the Government’s version of events and their justification for the policies they adopted. In particular we pointed out that the risk of asymptomatic transmission was acknowledged early on in the pandemic and the particular risk this posed to care home residents. Sir Patrick Vallance, the Government’s Chief Scientific Adviser, explained on the Today programme on 13th March 2020 that there was likely to be some degree of asymptomatic transmission, and that care homes were a particular concern. The Government was aware of the risk. It could and should have taken a more cautious approach that would have protected lives. As my legal team told the Court on the first day of the trial, the Government’s policies were always a recipe for disaster in care homes, and disaster is what happened.
What was very unusual in the trial was that there was no direct evidence of what information the Government or NHS were provided with in order to make the key policies we challenged. In a normal judicial review, the decision maker explains what advice they was given, how they weighed it and why they reached the decision they did. On the key decisions in March and April 2020, this was completely absent. The Government has had ample opportunity to provide evidence that the risks to care home residents were taken into account, and that ministers thought about how to mitigate those risks. It has failed to do so. The obvious conclusion is that the lives of vulnerable people were simply overlooked – with devastating consequences.
We now await the judgment of the Court. This could take several months.
I wish to thank everyone who has given so generously to bring us to this critical point. We still have a mountain to climb to meet the legal costs so please do pass this message on if you can. All donations are very much appreciated.
March 11, 2022
We're in court on Monday
It is nearly two years since my father passed away. The pain that I felt then and the anger at the Government’s failure to protect my father has not gone away. It has only been added to by the delay in the Court process in bringing the case to trial and by the Government’s failure to accept responsibility. Their lies have added insult to injury. I know I am not alone in the grief that many of us continue to feel at losing our parents and grandparents in care homes.
On Monday the trial eventually begins and I am hopeful we will hold this Government to account. I am so grateful to everyone for their support - financially and through the many messages of support. We are still some way short of the finances I need to finish the case. Please consider supporting this important case so that it ends well. Please also share this crowdfunding page with friends and relatives.
The Trial will last 6 days and it will probably be several months before the result is known. Thank you again for your support. I hope this case will bring some comfort to the many who have lost loved ones. “
Feb. 17, 2022
Court date confirmed: March 14th
After the abortive trial at the end of last year I am delighted that my case will now be heard on 14th March at the Royal Courts of Justice in London. The case has, unusually, been listed for a 6 day trial. This will give my legal team ample opportunity to test the truthfulness of claims made by Matt Hancock that a "protective ring was thrown around the care homes right from the start".
The Government’s handling of care homes and its failure to protect the most vulnerable in our society continues to cast a dark shadow over my life and many others who lost loved ones needlessly to COVID. The passage of time has only highlighted a culture within Government that evades responsibility. The revelations of "partygate" have only made the grief of relatives all the more bitter. The Government’s unwillingness to accept fault and take responsibility has made this case necessary.
Despite the 6 day hearing, we will not receive a judgement immediately the case has finished. It is expected that this will be given a few months later.
With such a significant and lengthy trial ahead please donate if you can and encourage friends and family to do so. Thank you for your support and kind comments.
Oct. 20, 2021
Having launched my case against the Government and the NHS on 12 June 2020 for the many failures to protect care home residents (including my father), the case eventually came before the Court for trial on Tuesday this week (19/10). It has been a long and hard road to get to this point. The Government have resisted us at every turn and sought to conceal key documents that explained what advice they had been given and why they decided what they did.
On Tuesday the Court told us that they considered there was much more information that they had to consider than time allowed. Although the previous judge ruled that the case could be heard in 4 days, the judges hearing the case this week decided that, because of the importance of the case and the volume of material, a longer hearing would be needed. This is likely to be early next year. Whilst the delay is frustrating, a longer trial will give us more opportunity to expose the detail of the Government’s failings to the Court. A longer hearing will ultimately help justice to be done.
I am so grateful to everyone who has given to the case. Without you I would have had to have given up long ago. The decision of the Court to adjourn the Trial means your help is needed again and more than ever. If you are able to give again please do so, and please also share this page with friends and colleagues. Thankyou for your support and generosity.
Sept. 28, 2021
Our final hearing is October 19th
The final hearing is now only a few weeks away, beginning on the 19th October for 4 days. This is a momentous occasion. The Court is the only forum which has the power to rule that the actions of the Government were unlawful and breached the human rights of vulnerable care home residents. We believe that the Government have violated the most fundamental of rights – the right to life – and discriminated against the elderly and disabled residents of care homes, with devastating consequences. The evidence shows that the health and wellbeing of care home residents were simply not considered when the Government decided to clear the hospitals to “Protect the NHS”. Testing capacity was not utilised and basic advice on wearing PPE and isolating new admissions was not given. Even worse, it seems that care home operators were given misleading and downright dangerous advice by Government so that they would be persuaded to take in new residents who could spread Covid to other vulnerable people within the home.
What is truly shameful is the Government’s ongoing refusal to acknowledge the serious errors of judgement they made. Unbelievably, they still maintain that there was a “protective ring around care homes” when it is plain and obvious that the very opposite is true. Equally shameful has been their ongoing refusal to disclose key documents that explain why they made the decisions they did. We appealed to the Court of Appeal for disclosure of these documents but were unsuccessful. The Court of Appeal was concerned to keep the final hearing date and one of the factors which worked against us was that the extra time and work involved in the Government undertaking more disclosure would risk losing that date. We therefore press on for the trial on 19th October.
My legal team have been hard at work and have now filed our Skeleton Argument with the Court. This document is the last formal document we send to the Court before the final hearing. It explains why we believe the Government, and the NHS, have acted unlawfully, in endangering the lives of care home residents. It can be found here.
I am very grateful to everyone who has given financially to help us bring this case. We still have a deficit of £35,000 and I would be grateful if you could consider giving one last time and sharing this crowdfunding page with others. Thank you for your support in seeking to hold the Government to account for their truly shocking failures.
Sept. 6, 2021
We're going to appeal.
On 25th August a hearing took place where my legal team asked Mrs Justice Eady to order the Government and NHS to disclose key documents. These documents would show what information was provided to decision makers before they made some of the most disastrous decisions during the Covid pandemic in March and April last year – especially discharging patients without testing into care homes.
There is a key factual dispute that is central to this case – what was known about asymptomatic transmission at the time the Government made its disastrous policy decisions. The Government say that little was known about asymptomatic transmission in March and that prior to 15th April 2020 they considered that “those without symptoms were unlikely to transmit infection”. The Government has tried to justify many of its decisions on this basis. However, the Government’s Chief Scientific Advisor, on the Today programme on 13th March 2020, said that “it looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are mild symptoms”.
The only way to resolve this central dispute is for the Government to disclose the advice they were given at the time. This is all the more important when fundamental rights such as the right to life are concerned. The Court needs to be able to understand what information the Government and NHS took into account.
Despite filing over 5000 pages of evidence the Government has not shared adequate information that they received when making key decisions. Regarding the disastrous March hospital discharge policy (discharge without testing or isolation) they have shared only one sentence from informal advice in a heavily redacted note to the Secretary of State which said: “This will remove barriers to discharge and transfer between health and social care, and get people out of hospital quicker and back into their homes, community settings or care settings”.
One of the reasons the Government has given for not disclosing advice it was given is that it was given in an informal manner. At the hearing the Government’s QC informed the judge that a search of WhatsApp messages, text messages and private email accounts had not been undertaken “because there is some concern at the higher levels about whether or not those sorts of things should be searched”.
My legal team and I remain very concerned that the Government are seeking to cover up crucial information that will shed light on what they knew when they made the disastrous policy decisions of March and April last year. They are seeking to evade scrutiny and accountability. I am therefore asking the Court of Appeal to overturn key parts of the High Court’s decision and order the Government and NHS to disclose the advice they were given when they made the decisions they did in March and April 2020. As a result of those decisions thousands of the most vulnerable people in the country lost their lives.
This litigation is proving very costly and especially so because of the lengths I have had to go to in order to make the Government and NHS disclose key information. It is vital that we hold them to account and I am asking you to share this page as widely as you can. Every donation is really appreciated, no matter how small, because they all add up.
Thank you for your support.
Aug. 27, 2021
Judge did not rule in our favour re evidence but we fight on!
This Thursday (26th August), Mrs Justice Eady ruled on our application that the Government and NHS disclose further documents and that their witnesses be cross-examined at Trial in October. We had made this application because of significant differences between the parties on key issues (such as when was the Government aware of asymptomatic transmission ). To resolve these differences we said we needed to see the key documents that contained the advice given to the Government.
Unfortunately we were unsuccessful in our application. The judge considered that the disclosure that has been made is adequate and that the Government had explained its position with sufficient clarity. The judge did acknowledge however that there was a lack of clarity around what measures the Government had taken to comply with its duty to disclose relevant information. They were ordered to provide a witness statement to explain the process they had undertaken.
I am disappointed at today’s outcome and especially so as the key documents that contain the advice given to Ministers will not be seen by the Court. I am seeking advice on whether to appeal and I'll post another update if we do so.
We still remain confident for the trial which is scheduled to start on October 19th.
Thank you again to everyone who has given to this important case. The costs of seeking to hold the Government to account are very considerable so please do this page on page to anyone who would be willing to contribute or who can share it with others.
Aug. 16, 2021
We're asking a judge to instruct the defence to provide evidence
In my last update I mentioned that my legal team had serious concerns that key documents were missing from the Government's witness evidence . They have provided 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. Nor does it include messages from their personal email addresses and WhatsApp groups. This is despite the recent revelations concerning Mr Hancock MP’s use of personal email for Government business (reported in the Sunday Times) and Dominic Cummings’ explanation of the extensive involvement of the Prime Minister and No. 10 in issues concerning care homes, and the extensive use of WhatsApp groups within the highest echelons of Government.
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, including the Chief Scientific Adviser (Sir Patrick Vallance) and the Chief Medical Office (Chris Whitty).
My legal team requested this additional information but the Government have refused to provide it.
As a result, I have applied to the Court for an order for further disclosure and the provision of information by the Government, and to have the Government’s witnesses attend the Court for cross-examination. This application will be heard by the Court at a hearing next week on Wednesday 25th August.
The Government’s refusal to disclose key documents is preventing the Court evaluating the lawfulness of their decisions and policies which had disastrous consequences for the most vulnerable in our society. It is also adding to the cost of this litigation that seeks to hold them to account.
Thank you for your generosity in helping the case get this far. Please consider making a further donation and encouraging others to do so.
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
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.
Nov. 19, 2020
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.
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.
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
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
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.
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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