Ethics at the start of the Covid pandemic

The bereaved daughters of two elderly men discharged to care homes under guidance issued by England have brought a successful challenge to the High Court.  The Court ruled that the policy of placing elderly people in care homes without testing them for COVID-19 was unlawful after there was scientific data available demonstrating that the virus could be transmitted by people who were asymptomatic.

Both the first claimant, Cathy Gardner, and the second claimant, Fay Harris, had fathers who were among the 12,500 English care home residents who died after being infected with Covid in March and April 2020, some of whom, it was alleged, could have been saved.  The father of the first claimant had died in a care home on the 3rd of April 2020, and the father of the second claimant had died in a care home on the 1st of May 2020.  

The claimants were seeking Declarations from the Court that certain policy documents issued by the defendants at the start of the COVID pandemic on the 17th and 19th March and 2nd April 2020 and the policies stated in those documents, amounted to breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively, were unlawful and susceptible to judicial review under principles of common law.  Neither claimant was seeking monetary compensation.  

The decision of the Court turned on what the authorities knew or ought to have known in the light of scientific research and advice, about asymptomatic transmission of the virus on various dates at the beginning of the pandemic, and on whether guidance issued about the management of vulnerable people had been irrational.

The claim against NHS England failed, but common law claims against the Secretary of State and Public Health England succeeded on the grounds that guidance given in both the March 2020 Discharge Policy and April 2020 Admissions Guidance documents had been irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.  However, claims under the Human Rights Act and the Public Sector Equality Duty failed.

The ethical issues.

This judicial review case is a good example of how the law can be used to find an answer to a very challenging situation even though the claimants were not looking for monetary compensation.  Although the word ‘ethics’ appears nowhere in the judgment, in this case, the law resolved a situation in which the two claimants were seeking vindication rather than money, and were courageous enough to challenge the authorities about guidance which they alleged had caused at least 12,500 deaths and immeasurable suffering to thousands of families.

At the heart of the problem was the ethical dilemma involved in prioritising some patients over others for treatment. Decisions about discharging elderly people rapidly to care homes might well have been influenced by the situation in Italy early in the pandemic when there had been a huge influx of very seriously ill patients in intensive care wards. The authorities clearly feared that the NHS would be overwhelmed unless beds and equipment in hospitals could be freed up, and the NHS was already using temporary overflow beds in open-plan wards set up as Nightingale Hospitals. Large venues such as the Excel conference centre in London were being used to deal, if necessary, with the huge surge in demand at a time of a worldwide shortage of PPE and COVID tests.

Families and organisations supporting vulnerable elderly people feared that guidance on the discharge of older people into care homes gave the impression that they were low on the list of priorities, despite the claim by the Government that a “protective ring” had been placed around care home residents.

The Court was aware that the authorities were acting under immense pressure and the virus was spreading fast when they issued various pieces of guidance from the very beginning of the pandemic, but evidence about the possibility of asymptomatic transmission was available on the dates specified in the judgment, (the 17th and 19th of March and the 2nd of April).  

The judges acknowledged that modelling was a valid scientific tool which yielded useful evidence and concluded that Ministers had been obliged to weigh up the likelihood that non-symptomatic transmission was happening and the very serious consequences if it did. 

The decision of the Court has been made well in advance of the start of the statutory public inquiry into the Covid pandemic, in which there will be an investigation into the management of the pandemic in care homes and other care settings, including infection prevention and control and the transfer of residents to or from homes.  

It should also be recognised that at some point in the future, many claims for compensation might be brought by people who have suffered illness and/or distress as a result of failure by the authorities to devise and implement policies based on well-founded scientific knowledge about the spread of the virus.  In addition to residents and relatives, care home and NHS staff suffered greatly during this time, and among these groups, there is evidence of continuing staff shortages and mental illness attributable to ‘moral in jury’. 

The judgment, in this case, is long and contains technical and legal detail, but it does at least provide early insight from a legal perspective into one of the key elements to be considered by the Public Inquiry.