Matt Hancock is facing legal action from the daughter of a man who died from Covid-19 in a care home in which the health secretary is accused of a “litany of failures” and misleading the public with his claim to have “thrown a protective ring” around care homes.
Dr Cathy Gardner launched a high court claim on Friday after her father, Michael Gibson, a retired headteacher, died in an Oxfordshire care home in early April. He became infected after a patient who tested positive for the virus was discharged from hospital into the home.
The request for a judicial review alleges failings “have led to large numbers of unnecessary deaths and serious illnesses” and have been “aggravated by the making of wholly disingenuous, misleading and – in some cases – plainly false statements suggesting that everything necessary has been done to protect care homes during the pandemic”.
The move comes amid growing anger among families of care home residents at policies they believe may have caused their loved ones to become infected. Several have raised complaints with hospitals and care homes about infection control, including the discharging of Covid-negative residents into homes with outbreaks.
Thirty-five councils have also blamed virus spread on discharges with hospital patients sent to homes that did not have sufficient protective equipment and/or facilities to isolate infected residents.
Other cases include a decision to discharge John Heywood, 83, from Addenbroke’s hospital in Cambridge into a Peterborough care facility with an outbreak. He contracted the virus and survived, but his family have lodged a formal complaint with Addenbroke’s.
“I was really upset and angry,” said his daughter, Sarah Hayward. “I called the [hospital] discharge planning team and they said there was no obligation to tell us if there’s Covid in a home. I felt it was out of our control. It didn’t make sense. How on earth could they do that?”
Addenbroke’s said it would launch a full investigation, but only after the Covid-19 crisis has passed. In a statement, Cambridge University hospitals medical director, Dr Ashley Shaw, said: “Our discharge planning team take great care in ensuring that decisions are made in the best interests of patients, and that the facility to which a patient is being discharged is able to support the patient’s needs at that time.”
In another case, the family of Hughie Leyland, 90, believe he contracted the virus and died aged 90 at the Westwood Hall care home in Wirral after it accepted discharged hospital patients.
“You don’t put people from a hospital where they may have had the virus into a place with the most vulnerable people,” said his daughter-in-law, Charlie Leyland. “If this was one mistake, that’s one thing, but it has been happening all around.”
Leyland entered the home on 23 March, at a time when Department of Health guidance stated that “negative tests are not required prior to transfers/ admissions into the care home”. It was not until 16 April that the government announced NHS patients being discharged into care homes would be first tested for Covid-19. Leyland died on 19 April.
The home owner, Springcare Ltd, said: “Our overall experience of the testing programme introduced by the government has been poor. Guidance on testing people prior to discharge from hospital … changed when the virus was most virulent and there was heightened media coverage on the rising number of cases in care homes of residents who were testing positive or symptomatic.”
The Care Quality Commission is also investigating claims that “a patient’s positive Covid-19 status was known to the hospital but not disclosed at the point of discharge” – a potential breach of the Health and Social Care Act. More than 15,000 people have died from known or suspected Covid-19 in UK care homes.
In the letter initiating her claim that Hancock, the secretary of state for health and social care, breached his legal duty, Gardner’s lawyers allege “policies and measures adopted by the health secretary, NHS England and Public Health England have manifestly failed to protect the health, well-being and right to life of those residing and working in care homes”.
Gardner said she hoped her case would focus attention on decisions to order care homes to accept hospital discharges, the struggle to access enough personal protective equipment and a lack of comprehensive testing. She is crowdfunding for legal costs, which she estimates could reach £60,000.
“By the time the government said they were going to introduce testing [for hospital discharges on 15 April] people had already died. My father died on 3 April. The time to protect the care homes was at the beginning.
“I want to hold them to account and this seems to be the best way of doing it. We are looking for an admission of wrongdoing and policies to make sure this doesn’t happen again.”
Her case alleges:
The government breached its obligation “to take appropriate steps to safeguard the lives of those within its jurisdiction” and to do “all that could have been required of it to prevent … life from being avoidably put at risk” as set out in the European convention on human rights.
The government breached the National Health Service Act 2006 requiring it protect “the public in England from disease or other dangers to health” and the Equalities Act – equal and fair treatment of individuals with protected characteristics of age and disability and also potentially race.
It highlights the Department of Health and Social Care’s February guidance to care homes that it was “very unlikely that anyone receiving care in a care home or the community will become infected” and the advice in March that “negative tests are not required prior to transfers/admissions into the care home”.
The case highlights the Public Health England guidance to care homes on 13 March that did not ban visits and instructions from NHS England on 17 March that “community health providers must take full responsibility for urgent discharge of all eligible patients identified by acute providers” and health ministry guidance in April that “negative tests are not required prior to transfers/ admissions into the care home”.
It also demands to see the evidence behind Boris Johnson’s statement on 13 May, that “we brought in the lockdown in care homes ahead of the general lockdown”, and said Hancock and the other agencies “formulated and applied a policy in respect of care homes that is different to the policy that they have publicly declared”.
Hancock has previously said that “from the start, we have worked hard to protect those in social care”. He told parliament last month: “We will not rest in doing whatever is humanly possible to protect our care homes from this appalling virus, to make sure that residents and care colleagues have the safety and security they deserve.”
The Department of Health and Social Care and NHS England said they could not comment on ongoing legal proceedings.