A woman whose father was a resident in a care and died with Covid in April this year has won the first stage of a legal challenge over measures taken to protect those living in care homes from the pandemic.
Dr Gardner’s father, Michael Gibson died in the care home where he was a resident after it re-admitted without Covid testing a former resident who had been in hospital. Mr Gibson’s death was recorded as “probable Covid”, according to documents before the court.
In her challenge Dr Cathy Gardner, from Sidmouth in Devon, claims there was a failure to implement “adequate” measures to protect residents and argues that the treatment of care homes up to and during the pandemic was unlawful, including guidelines allowing Covid-19 patients to be discharged from hospitals into care homes untested.
Dr Gardner, who is bringing her case with another individual, Fay Harris, alleges the measures breached human rights and equality laws. Dr Gardner said: “This is for the thousands of families affected by the loss of loved ones in care homes since March.”
Jason Coppel QC alleged in written documents presented to the court that “Between March and June 2020, more than 20,000 vulnerable care home residents in England and Wales, including the fathers of both of the claimants, died from COVID-19.
“The defendants’ failure to implement timely, adequate measures to protect vulnerable care home residents from the ravages of Covid represents one of the most egregious and devastating policy failures of recent times.”
Representing the government Sir James Eadie QC said the challenge was “unarguable” at Thursday’s hearing.
He said that in the early weeks of the pandemic, the focus was on ensuring the NHS was not overwhelmed and “that means at the sharpest point that was ensuring capacity in intensive care units to deal with the most severely affected cases”
Mr Justice Linden granted permission for a full hearing of the challenge against the Department for Health and Social Care (DHSC), NHS England and Public Health England by Dr. Cathy Gardner, whose 88 year-old father died in an Oxfordshire care home on 3 April.
Mr Justice Linden said at a remote hearing she should be given permission to pursue her case on all grounds saying it “crossed the threshold of arguability”.
“I consider it in the interests of justice for the claim to be heard,” he added.
DHSC, NHS England and Public Health England oppose Dr. Gardner’s challenge and asked the judge to dismiss the case.