A Sidmouth woman calling for Boris Johnson to resign after she won a landmark ruling against the Government’s Covid care home discharge policy is appealing for public help to cover the court costs.
Dr Cathy Gardner took the Government to task after her dad Michael Gibson died in a care home during the first wave of the pandemic of ‘probable Covid’, in April 2020.
This week (April 27) the High Court ruled the Government acted unlawfully, calling the decisions of Secretary of State for Health Matt Hancock ‘irrational’ because he failed to take into account the known risk that asymptomatic people admitted back into care homes could transmit Covid-19 to others.
Dr Gardner said there were still ‘significant’ expenses to cover because, despite losing the ruling, the Government was exempt from paying the winning side’s court costs.
In a statement on her Crowdjustice page, which has so far raised more than £143,000 for the court proceedings, Dr Gardner appealed for further financial support.
She said: “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.”
She added: “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.”
From March 2020, the Government’s directive was to free up hospital beds by discharging people into care homes.
For almost two months, through March and the first half of April, residents without any apparent symptoms of Covid were cared for as routine without any consideration they could be asymptomatic, and infected with the virus.
The Government’s policy, passed down to care homes, was that testing and quarantining new residents, or the wearing of PPE equipment, was not required.
As a result, more than 20,000 care home residents died of coronavirus during the first wave of the pandemic.
Dr Gardner brought the case before High Court with Ms Fay Harris, whose father Donald Percival died of coronavirus in May 2020, after Covid-19 positive patients were discharged into his care home.
During the trial Dr Gardner’s legal team challenged the Government’s adopted policies and justification for following them when the risk of asymptomatic transmission had been acknowledged early on in the pandemic.
The court heard how Sir Patrick Vallance, the Government’s Chief Scientific Adviser, told the Today programme on March 13, 2020, of the likelihood of a degree of asymptomatic transmission, and the concern around care homes.
Dr Gardner said: “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.”
She added: “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 were 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.”
Justice for her dad and ‘the thousands like him who have died, unnecessarily, in care homes in the course of this pandemic’ was the driving force behind Dr Gardner’s two-year battle against the Government.
Dr Gardner and Ms Fay Harris brought their claim for judicial review against the Secretary of State for Health and Social Care, NHS England and Public Health England.
The claim was successful against the Secretary of State and Public Health England in relation to the March Discharge Policy and April Admissions Guidance documents.
The court found ‘the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days’.
The court dismissed the claim against NHS England and the claims under the Human Rights Act 1998.
After the ruling, a spokesperson for the Department of Health and Social Care said: “Our thoughts are with all those who lost loved ones during the pandemic.
“Throughout the pandemic, our aim has been to protect the public from the threat to life and health posed by COVID-19 and we specifically sought to safeguard care home residents based on the best information at the time.”
The spokesperson said: : “This was a wide-ranging claim and the vast majority of the judgement found in the Government’s favour.
“The court recognised this was a very difficult decision at the start of the pandemic, evidence on asymptomatic transmission was extremely uncertain and we had to act immediately to protect the NHS to prevent it from being overwhelmed.
“The court recognised we did all we could to increase testing capacity. We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation and will respond in more detail in due course.”
- See here to donate, and read Dr Gardner’s blog of how she held the Government to account.
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