Hancock apologises as hospital to care home discharge policy without Covid test ruled 'unlawful'

ITV News UK Editor Paul Brand reports on the ruling that government policies on discharging untested patients from hospital to care homes in England at the start of the pandemic were unlawful

Former health secretary Matt Hancock, who was in charge during the height of Covid, has apologised after the High Court ruled government policies on discharging patients from hospital into care homes at the onset of the pandemic were "unlawful".

Judges on Wednesday ruled the government failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of coronavirus, undermining Mr Hancock's previous claims that a “protective ring” was put in place for the most vulnerable.

Asked about the ruling by ITV News, Mr Hancock said: "Like the prime minister at lunchtime I reiterate the apology to all those who lost loved ones."

The former health secretary responds to the High Court ruling

Both the PM and Mr Hancock stressed a lack of knowledge around the spread of the virus in their responses to the judgement.

But in the ruling, judges pointed to “growing awareness” of the risk of asymptomatic transmission and no evidence that Mr Hancock addressed the issue of the risk to care home residents of such transmission.

Mr Hancock told ITV News: "The judgement is very clear about what information was and wasn't passed on and, I've said before, that I wish that the knowledge about asymptotic transmission had been... I'd known it earlier because then we can have better outcomes.

"We've got to make sure we learn from this and my sympathy is with all those families, like mine, who lost loved ones during the crisis."

How did the case come to court?

Cathy Gardner and Fay Harris, whose fathers died of Covid, brought the case against Mr Hancock and Public Health England (PHE).

Dr Gardner's dad died in an Oxfordshire care home in April 2020. Credit: Family Handout

Dr Gardner, who is from Sidmouth and whose father Michael Gibson died of Covid at an Oxfordshire care home, claimed there was a failure to implement “adequate” measures to protect residents from the “ravages” of coronavirus.

The women had argued that key policies of discharging patients from hospitals into care homes were carried out with no testing and no suitable isolation arrangements in the homes.

What did judges rule?

In the ruling, Lord Justice Bean and Mr Justice Garnham said despite there being “growing awareness” of the risk of asymptomatic transmission throughout March 2020, there was no evidence that Mr Hancock addressed the issue of the risk to care home residents of such transmission.

Their judgement referred to policies contained in documents released in March and early April 2020.

“The document could, for example, have said 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 judges said in their ruling. “Since there is no evidence that this question was considered by the secretary of state, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue."

Wednesday's ruling leaves the government open to compensation claims from families and care homes that had to close down, ITV News UK Editor Paul Brand reports.

What has been the reaction to the ruling?

Welcoming the judgement, Ms Harris, who, along with Dr Gardner, called on Boris Johnson to resign after the ruling, said: “It brings some comfort to know that the government have been shown to act unlawfully. “Their actions exposed many vulnerable people to a greater risk of death – and many thousands did die.

“I have lost precious years with my wonderful dad. I left him fit, well and happy on the 22 March 2020 when his home went into lockdown. “He should have been safe and protected, but I never saw or spoke to him again. Many people died of Covid in his care home."

Cathy Gardner (2nd from the left) and Fay Harris (2nd from the right) leave the Royal Courts of Justice. Credit: PA

Dr Gardner added: “It is also now clear that Matt Hancock’s claim that the government threw a protective ring around care homes in the first wave of the pandemic was nothing more than a despicable lie of which he ought to be ashamed and for which he ought to apologise.”

"It is also important that the prime minister accepts responsibility for what happened on his watch."

Ms Harris and Dr Gardner partially succeeded in their cases, as judges dismissed other claims made under human rights legislation, and against NHS England.

A spokesperson for Mr Hancock said the High Court had found he acted reasonably but PHE “failed to tell ministers what they knew about asymptomatic transmission” of Covid-19 and “Mr Hancock has frequently stated how he wished this had been brought to his attention earlier”.

The ruling won't bring anyone back, but it is hoped it will prevent similar cases in the future - as Health Editor Emily Morgan reports

A spokesperson from 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.

"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."

Responding to the ruling in the House of Commons on Wednesday, Mr Johnson said he wanted to renew his apologies, and sympathy, to people who lost loved ones in care homes during the pandemic.

"We did not know very much about the disease," the prime minister said, adding that the government would study - and respond to - the High Court ruling in "due course".

"The thing that we did not know in particular... was that Covid could be transmitted asymptomatically in the way that it was."

"And that was something that I wish we had known more about at the time."

Helen Wildbore, director of the Relatives and Residents Association, said Wednesday is "no day for celebration", as grieving families will still be asking why more was not done to prevent their loved ones from dying.

What warnings were there that this may not be a wise policy?

As UK Editor Paul Brand notes, ITV News had repeatedly exposed the practice of discharging patients from hospitals to care homes.

In May 2020, ITV News obtained exclusive data which showed that, at the outset of the pandemic, the NHS and councils block booked beds in care homes to ensure they were ready to deal with a surge in patients coming from hospital.

ITV News uncovered plans to discharge at least 1,800 patients from hospital into care homes during the pandemic.

NHS clinical commissioning groups and councils in 17 regions of England replied to ITV News telling us that they had reserved a total of 1,800 beds in care homes, including 182 beds in Suffolk, 122 in the Wirral and 86 in Oxfordshire.

In May 2020, ITV News revealed plans to discharge Covid-19 patients into care homes

Until mid-April of 2020, patients were not routinely tested for coronavirus before being discharged into a home, with care managers having previously told ITV News that they believe that’s how the virus spread among their residents.

The government advice to hospitals prior to April 15 was "negative tests are not required prior to transfers/admissions into the care home."

ITV News also discovered that some homes continued to take Covid-19 positive patients, despite their concerns.

In September 2020, Paul Brand reported on claims that the virus was spread from hospitals via discharged patients who weren't initially tested

In September 2020, ITV News published interviews with whistleblowers in the NHS, who claimed that care homes were used as a "dumping ground" during the early weeks of the pandemic.

Each of the men transported patients and they all say they drove down demand for hospital beds by taking people into care homes.

One of them said he transported up to 200 patients in the early weeks of the pandemic - the other two were taking dozens each week. All three said those patients were often showing signs of coronavirus, despite not having been tested.

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