Coronavirus: The failure to test patients being discharged from hospitals to care homes found “unlawful” by the English High Court

In April 2022, the High Court in England found that the UK Government policies on discharging untested patients from hospitals to care homes in England at the beginning of the Coronavirus pandemic was unlawful.

The Claimants were granted permission to pursue a judicial review of the government’s actions in 2020 after both claimants’ fathers died in care homes from the virus. They argued that care home residents were neglected and let down by the government.

The argument focused on the policy of not isolating asymptomatic patients admitted into care homes being irrational.

The case succeeded in relation to the ‘March Discharge Policy’ dated 17 March 2020 and 19 March 2020, and the ‘Admission and Care of Patients During COVID-19 Incident in a Care Home’ policy dated 2 April 2020. It was found that the government was warned on 4 February 2020 and again on 13 March 2020 about the risk of asymptomatic transmission being a possibility. Despite this warning, the UK Government did not introduce testing and a 14 day isolation period for new residents admitted to care homes until 15 April 2020.

Furthermore, the Court concluded that the Secretary of State failed to take into account the risk to elderly and vulnerable residents and that there had been a ‘significant delay at a critical period.’

The related policy in Northern Ireland was ‘COVID-19: Guidance for Nursing and Residential Care Homes in Northern Ireland.’ In total, 53 care homes in Northern Ireland reported Coronavirus outbreaks in April 2020, and calls were made to introduce systematic testing of care home residents and staff with symptoms. It is likely that the English case will pave the way for more litigation from across the whole of the United Kingdom concerning their failings for nursing and care home patients.

A public inquiry is due to be launched in the first half of 2022 into the government’s handling of the pandemic.

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