This time of year brings bad memories for families of care home residents who died in Covid’s first wave when the virus swept, mostly unchecked, through nursing homes.
Just over two years on, the high court ruling that the government’s hospital discharge policy that sent thousands of people untested into care homes was not only illegal but “irrational” comes as bitter proof of what they already knew: something went badly wrong.
Cathy Gardner and Fay Harris were the two grieving daughters who secured the ruling in the face of vigorous denials of wrongdoing by the government. But it also provides justice for the families of many of the 12,500 care home residents who perished with Covid in March and April 2020, some of whom, campaigners say, could have been saved.
Among those family members was Charlie Williams, whose father Rex, 85, was one of 27 people who died in his Coventry care home.
“The last two years of cover-ups and denials have been unbelievably painful,” he said. “We’ve always known that our loved ones were thrown to the wolves by the government, and the claims made by Matt Hancock that a ‘protective ring’ was made around care homes was a sickening lie. Now a court has found their decisions unlawful and it’s clear the decisions taken led to people dying who may otherwise still be with their loved ones today.”
Another relative absorbing the ruling was Lindsay Jackson whose mother, Sylvia, died in a Derbyshire care home on 17 April 2020.
“It’s an affirmation of what many of us believed to be the case,” Jackson said. “But to have it in black and white that your government has disregarded our most vulnerable people and hung them out to dry is really shocking. We are all led to believe the first requirement of a government is to keep its citizens safe. Not only did they not do that, they actively put them in harm’s way.”
The case could help families bring compensation claims but also offers a preview of the statutory coronavirus public inquiry due to start this spring in which interactions between ministers, officials and scientists as they wrestled with life-and-death decisions will be laid bare.
In this case, for example, it emerged that the care minister Helen Whately asked of draft admissions guidance that did not require negative tests: “Why are we not planning to test patients for discharge to the care sector? This would make such a difference.” She also wrote: “This is written like the NHS is divine and care homes are slaves.”
That sense that social care was a secondary priority remains after Wednesday’s verdict.
“The attitude of the government was to put a protective ring of steel around the NHS and leave care homes to fend for themselves,” said Nadra Ahmed, the executive chair of the National Care Association, which represents independent care operators. “Care homes continue to support their residents and staff through very choppy waters. Any supportive funding for our sector has stopped and we are being left to wait for the crumbs from the NHS rebuilding programme before we see any support, with no plan to rebuild social care.”
The judges found that “those drafting the March [2020] discharge policy and the April [2020] admissions guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission”.
They concluded that the decisions of the then health secretary, Matt Hancock, “to make and maintain” the policies on how hospital patients could be sent to care homes were unlawful because, in deciding to adopt the policies, he failed to take into account the risk from asymptomatic transmission.
A Downing Street spokesperson said ministers had “sought to act informed by the evidence we had – clinical or otherwise – and the capabilities we had available at the time”.
They added: “What we’ve seen throughout this pandemic is that we have acted to get that balance between saving lives and livelihoods.”