As the official COVID-19 inquiry gets under way we see some of the core issues resurfacing: Boris Johnson’s dilettante approach to government; the profiteering VIP lane; and Matt Hancock’s purported ‘protective ring around care homes’ that nevertheless failed to prevent tens of thousands of deaths among residents. The latter is perhaps the one issue that has already had some forensic legal analysis in the case brought by the relatives of two care home residents who succumbed to the pandemic. This case was decided against the Secretary of State for Health and Public Health England (PHE) in the English High Court last April. As a result re-visiting this judgement may give some insight into both this issue and how some of the others might play out both in the inquiry itself and the spin given to its proceedings by the media and interested participants.
The judgement referred to was in relation to the mass transfer of hospital patients to care homes during the early stages of the outbreak in 2020. Despite its narrow focus it was an early insight into the decision-making ‘process’ that existed in the Conservative government during the early stages of the pandemic, and contained no little element of mystery as to why the oversight that led to the Court’s ultimate declaration of irrationality and thus unlawfulness actually occurred. It is to be hoped that further insights into the support for decisions made during the pandemic will be forthcoming from the inquiry, thus filling in the gaps laid bare by the judgement as well as others.
As a warning of what is likely to come with revelations from the inquiry, however, the media skimmed the full High Court judgement, reporting more the self-serving reactions to it than the nuanced reality. The top line reading of the case outcome was ‘Covid care home discharge policy was unlawful, says court’ – as reported by The Guardian. Matt Hancock, Secretary of State for Health at the relevant time and so one of the defendants in the case, responded through a spokesperson that ‘the ruling “finds Mr Hancock acted reasonably on all counts. The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission,” he said. “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier.”’ In fact neither the newspaper’s nor Mr Hancock’s statement was a true reflection of the judgement.
The 2022 judgement is also of interest for its insight into an intensely debated aspect of law – referred to as ‘public law’ or ‘judicial review’ – where the courts scrutinise a decision taken by government or a delegated authority for its legality according to statute law (deriving from Acts passed by Parliament) and common law (deriving from accepted court convention and precedent). I’ll cover some aspects of this before describing the court’s decision in detail.
‘Judicial Review’ in the UK
As repeated legal authorities have made clear, at least in the UK, judicial review does not exist to ‘second-guess’ decisions of the government or its delegated authorities. Its purpose is to ensure some minimal standards in the process by which these decisions are reached. The Institute of Government’s summary of how these standards can be breached is as follows:
- A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought.
- A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so.
- A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.
- In addition, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights.
- A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.
The irrationality standard leaves open the question of what counts as ‘unreasonable’. One legal scholar’s evaluation of such cases is that the courts demand that ‘authorities merely avoid totally unjustifiable behaviour and be able to rationalize their decisions, having taken note of viable alternatives, without need of analysing each one.’
The Details of the Case
The case was brought against the government as represented by the Secretary of State for the Department of Health and Social Care (DHSC) – Matt Hancock MP during the relevant period, PHE, for whom the Secretary of State is legally responsible, and NHS England for whom he or she is not (the Defendants). It was brought by the daughters of two male care-home residents who died in the first Covid wave in 2020 (the Claimants). They argued that their parents’ human rights had been breached by government actions or admissions, and that government actions and/or admissions in relation to the transfer of hospital patients to care-homes in this early part of the pandemic had been unlawful.
From the outset the court decided that ‘[e]vidence of opinion about the actions and decisions of the Defendants is not admissible’, and that the focus would be on decisions and documents issued prior to 1st May 2020 in England alone. In particular the focus would be on policy documents issued by the government and whether they unlawfully led to an increased risk to care home residents. According to the claimants there were various aspects of this increased risk – failure to encourage the use of protective equipment, reliance on staff sharing between care homes, and most significantly that policy failed to address the risk of transmission from other residents, especially those being newly admitted or re-admitted. This latter problem was exacerbated on 19th March by a policy document that ‘directed the mass discharge of hospital patients into care homes without testing, isolation, appropriate guidance in relation to PPE or assessment of whether the care home could provide safe care’. Subsequent guidance on 2nd April also failed to require testing before admission to care homes and required no special measures for residents without symptoms. This omission was not rectified until 15th April 2020.
The court traced the course of the COVID-19 outbreak in some detail, with particular reference to what was known about its transmission or otherwise from asymptomatic individuals. They pointed out various papers and statements – including that on March 13th by Sir Patrick Vallance, the UK’s Chief Scientific Advisor, which raised the possibility or even the likelihood of asymptomatic transmission. Vallance’s comments, made in a radio interview, were
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 very mild symptoms.
On 24th March a draft policy document was produced by PHE advising (inter alia) against transfers of asymptomatic patients to care homes with a suspected outbreak and against transfers of confirmed cases who had not yet completed their isolation to a care home without a suspected outbreak. A redraft sent to the Minister for Social Care (Helen Whately MP) removed this latter warning. She was concerned about this omission, but apparently was reassured by the suggestion that ‘discharge would occur when clinically appropriate’.
On 26th March the updated prioritisation list for Covid testing included ‘patients being discharged to a residential or care facility’. Mr Tom Surrey, a senior civil servant in the DHSC who joined the department on 30th March 2020, stated that ‘the effect of the update was to advise that, where capacity allowed, testing of those already confirmed as COVID-19 positive should be prioritised for patients being discharged to a residential or care facility’. On the same day further draft guidance stated of care-home admissions from hospital or home that ‘these patients may have COVID-19; may be symptomatic or may be asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed’. Minister for Social Care Ms Whately again expressed concerns over this guidance when she received it on 28th March. In any case, this guidance was issued pretty much as per this draft on 2nd April. There was no update to this guidance until 13th April, when in the face of now overwhelming evidence of asymptomatic transmission, guidance was changed to mandate the testing of all patients discharged to care homes from hospital.
The court were anxious to point out that in relation to the issues at hand ‘the Defendants had the power of persuasion and guidance in relation to care homes, but not of compulsion’.
Absence of Evidence
At the outset of the Claimants’ case, their counsel submitted that
…the ability to pursue the claims had been hampered by the refusal of the First and Third Defendants to identify the advice and materials which were considered by the relevant decision maker, the Secretary of State, in the case of each policy. He was the decision maker and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed. Usually, the court had a record of what the Secretary of State had been told through ministerial submissions, and that would be a good guide as to what was and wasn’t considered. Whilst there were some ministerial submissions among the documents in this case, there was no formal submission in relation to the policies in question.
Since ‘a key factual dispute for each of the impugned decisions was what documents and advice Mr Hancock was given or not given, and what were Mr Hancock’s reasons for his final decisions’ this evidently left a void at the heart of the Secretary of State’s justification for the documents issued in his name.
The Court noted that ‘[t]he main witness statements on behalf of the Secretary of State come from Mr Surrey’, who as noted above was only at the DHSC with effect from 30 March 2020. They, perhaps generously, excused the absence of more direct statements or evidence in terms of the circumstances prevailing at the time but at the same time pointed out that ‘[w]here there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration’.
The Human Rights Judgement
The Court dismissed the human rights claims on the following grounds.
There is no authority of the Strasbourg court [ie: the European Court of Human Rights] which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined a sector of the population as residents of care homes for the elderly.
The Public Law Judgement
In relation to the public law aspect of the case the Court referred to the following significant statement of Lord Bingham:
…on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible decision-maker has reached after consultation with its expert advisers.
But the judges also stated 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.
They went on to make the important point that
…there was no scientific proof in mid-March 2020 that asymptomatic transmission was occurring, but it was well recognised by the experts that such transmission was possible.
As a consequence the Court’s view was that
…the growing appreciation that asymptomatic transmission was a real possibility ought to have prompted a change in Government policy concerning care homes earlier than it did.
They argued however that the discharge policy in itself was not necessarily open to attack.
As we have noted, the Defendants were extremely and understandably concerned by the prospect of the numbers of seriously ill patients requiring intensive care rising so rapidly that the NHS’s intensive care capacity would simply be overwhelmed.
The Court also judged that the lack of assessment of individual care homes prior to this policy being put in place, and the failure to mandate testing prior to discharge when there was a serious shortage of available tests were not unreasonable decisions given the context. Importantly however they caveated these points in the following way:
[t]he fact that discharge was necessary to preserve the capacity of the NHS to provide in-patient care to those seriously affected by COVID did not eliminate the need to consider the best way to manage those discharged.
The crux of the Court’s adverse judgement comes at the following passage in the document issued by the DHSC on 2nd April.
If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.
The Court were unable to find any evidence that ‘the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission’. As a result ‘[t]hose drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission’. This led to ‘a significant delay at a critical period’. The judges’ final view was that
…the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks. [My emphasis]
In the view of the Court this document could have said at the very least that ‘where an asymptomatic patient (other than one who has tested negative) is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days’.
The Court dismissed the case against NHS England.
The Scottish Guidance
It is of note, as the Court recognised, that the Scottish equivalent guidance of 26th March stated that
…[i]f a patient being discharged from hospital is known to have had contact with other COVID- 19 cases and is not displaying symptoms, secondary care staff must inform the receiving facility of the exposure. The receiving facility should ensure the exposed individual is isolated for 14 days following exposure to minimise the risk of a subsequent outbreak within the receiving facility.
This is very close to the Court’s suggestion of what the ‘rational’ and thus ‘lawful’ course would have been for England’s health authorities. As such it suggests that the Scottish government does not share the DHSC’s potential exposure to legal liability for Covid deaths in care homes – at least in the early stages of the pandemic.
A Secret Yet to Be Revealed
The conclusion that the omission of the relevant piece of advice from guidance issued prior to 13th April was ‘irrational’ implies that a rational individual with population welfare as their object would not have issued this guidance in the form it took. This leads to two (non-exhaustive) possibilities:
- There was some other over-riding goal in the issuing of the advice – for example to avoid inconvenience and expense for care-home operators.
- The decision was not taken by an individual – in the sense that responsibility for the issue of the document fell between a series of inadequate scrutinies.
The first of these possibilities suggests corruption – the interests of private companies somehow coming to interfere with a question of public welfare. The second suggests a dysfunctional government apparatus or dysfunctional participants in that apparatus.
Which of these possibilities (or others that might be raised) is the correct explanation remains in a black box delineated by the government’s failure to release definitive information surrounding the decision-making by Mr Hancock in this case. This outlines the importance of the inquiry’s investigation of the connection (if any) between scientific advice and all of the government’s subsequent actions (or inactions) during the pandemic. It also helps to explain the inquiry’s insistence in gaining access to all communications between members of the government from this time.
 One actor in the High Court drama, the Minister of Care then and now, Helen Whateley MP, has recently given a somewhat mealy-mouthed response as to whether she endorsed Mr Hancock’s claim of having placed a ‘protective ring around care homes’.
 Institute for Government, Judicial Review; https://www.instituteforgovernment.org.uk/explainers/judicial-review
 Ip, Eric C., ‘Taking a Hard Look at Irrationality’; Oxford Journal of Legal Studies, Vol. 34, No. 3 (2014), pp. 481–510