28th April 2022
One of the most outstanding lawyers I know works a lot with care home clients.
Sometime ago they told me about what happened when the hospitals started seeking to release patients into care homes at the start of the pandemic.
A hospital was trying to force a care home to take a potentially positive patient.
The lawyer advised their care home client to lock all the doors, and to not accept anyone from the hospital untested.
Robust advice yes – but it was a bleedingly obvious problem – and now the High Court has said, in effect, my friend’s legal advice was correct.
The Covid and care homes judgment handed down this week is long and complicated – 75 pages and 299 numbered paragraphs.
But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.
It is paragraph 289:
“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. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those 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 is not an example thereby of a hard policy decision being made between competing options.
Most sensible people would say that is a matter for the government and not for the courts.
It was instead a decision which failed absolutely to take account of a relevant consideration.
As such, it was a policy decision that was not lawfully open to the decision-maker.
As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”.
How the court applied this legal principle in this case is interesting:
The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.
But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.
The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.
But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.
The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.
That took the decision out of the realm of administration and policy and into the realm of public law.
The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.
And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.
Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.
And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.
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Under the UK system as I understand it, there is no come-back against the person who took this decision even if, as DAG says, the public law duties fell **personally** on the Secretary of State. Is that correct?
Are there any circumstances in which a government minister can be held accountable for breaches of the law such as this, breaches which led to unnecessary deaths? I believe that, in France, there have been cases where ministers have faced criminal penalties for such failings. But I am not aware that any British minister could ever face such sanctions. Does such a “get out of jail free card” make them more cavalier in their decisions than they might otherwise be?
Would it be correct to say that it would been lawful if they’d considered the risk but made the same decision anyway?
Not necessarily, no. It would still arguably be an irrational decision – but it wouldn’t be vitiated by failure to consider a relevant consideration.
A quick Google News search for “coronavirus asymptomatic” covering January and February 2020 shows that examples of asymptomatic transmission were being reported even at that early stage.
The earliest “superspreader” event in the UK involved someone who contracted the disease in Singapore and unwittingly infected 11 others after flying from there to France for a skiing holiday, “despite showing no symptoms” himself. It was big news at the time. Here’s a link to just one of several news articles about the story, in this specific case published on 12 February 2020. https://news.sky.com/story/identity-of-man-linked-to-11-british-coronavirus-cases-revealed-11931336
Anyone in government who claimed then or claims now that they were ignorant of the possibility of asymptomatic transmission does not have any objective justification for such a claim. It was known specifically in the context of coronavirus.
Even if it had not been known specifically that asymptomatic transmission of coronavirus was possible, it had been known for a century that asymptomatic transmission of disease was relatively common – look up stories about “Typhoid Mary” for instance.
The judgment is long, but the important part, from paragraph 285 to 299, is not.
Four points.
1/ According to the BBC: “A spokesman for Matt Hancock said the case “comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts”.
https://www.bbc.co.uk/news/uk-england-61227709
Er, no, it finds that Hancock (himself, personally) acted irrationally and illegally.
2/ Wes Streeting asked Hancock about asymptomatic transmission in the Commons on 16 March, a week before the first lockdown: https://hansard.parliament.uk/commons/2020-03-16/debates/235689EC-0A18-4488-BFCF-9F012A1A0C1B/Covid-19#contribution-165604A3-522E-43E7-A1B0-7E7EC504BAEF
Streeting refers to concerns that “the virus is particularly contagious at the early stages before symptoms present” and asks “is the current Government’s strategy based too heavily on responding to observable symptoms and is there not a case now for going further faster”? And Hancock responds: “by reducing all unnecessary social contact, we will help to reduce the sorts of transmissions that he talks about”.
This was a known risk.
3/ The Minister of State for Social Care (Helen Whately) expressed concern several times about the possibility of patients with COVID being discharged to care homes, to no avail. See paragraph 292.
4/ It seems the main witness statements on behalf of the Secretary of State was given by a certain “Mr Surrey”, but he only joined the health department on 30 March 2020. Why wasn’t Hancock giving evidence about the previous two or three weeks? This reminds me of the prorogation case, where it seems the government lost because they didn’t give evidence about the basis on which decisions were made. Isn’t there a duty of candour?
Do you think that a charge of corporate manslaughter would be possible? Previous cases have failed (as I read it) because of the problem of identifying the “controlling mind”. Less of a problem in this case?
I’ve got very vague memories of Mark Thomas campaigning for laws on corporate manslaughter but then nothing really happened.
And yet somehow Matt Hancock has found the gall to claim to have been totally exonerated:
“This court case comprehensively clears Ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts” (quoted by Robert Peston on Twitter).
Positively Putinesque.
No collusion!
And the immediate to short-term consequences of this devastating judgment will be the square-root of naff-all.
Those critical of HMG will use it as further evidence of failure, those who support not will either ignore the point or minimise it, Johnson’s sycophants will deflect any blame from his door to shore up his position, and the current shower of incompetents and ignoramuses in charge will blunder on regardless until the next election, and, worryingly, possibly for even longer.
Well said. The judgments is heart-breaking for so many people. Will there ever be accountability?
Judgement!
There is an interesting line here between policy and law. While I spent most of my time in ‘public affairs’ working on matters of policy which were not legally enforceable, it was nonetheless required of us that every draft Decision or Recommendation, even though non-binding, had to be legally vetted – and the lawyers concerned expected to see evidence that the recommendations were well-founded.
I don’t believe that such disastrous recommendations could have made it through the EU process. However, the need for speed might have allowed corners to be cut – possibly with the results that are evident in this case. Act in haste, repent at leisure, unless you’re very lucky.
But what does this judgement mean?
Will Matt Hancock et al be charged with some sort of criminal offence? Will he/they be sued by survivors and relatives for punitive amount?
Or will it just result in the now-default “just ignore it, it’ll all be forgotten in a few days” response from the incompetents who govern us?
I apologise for taking us slightly off-topic, but while we explore the general subject area of the Covid Pandemic and Policy, one of the most remarkable/shocking things to me is what we *haven’t* done as a nation.
Depressing as it sounds, it is almost inevitable that we’re going to see another pandemic, then another, and another. I’ll come back to the reason for this in a moment.
What we might expect a competent administration to do, under the circumstances, is launch a public enquiry of some sort in to the goverment’s handling of Covid-19, make recommendations and develop a national-level preparedness plan for “the next pandemic” so that we’re not caught out when it arrives. Things like…
1. Having spare PPE on hand for medical professionals
2. Having the ability to lock down all ports at very short notice
3. Have the ability to quarantine passengers in transit
4. Requiring “stress test” principles to be applied to all industries that we now know will be hit hard in a pandemic, so airlines keep cash on hand and have the ability to ground aircraft for say 6 months, if needed.
Yes, these sound pretty drastic; and yes, someone may well reply to tell me I’m being unreasonable with these suggestions.
But we prepare for the worst and hope for the best, not the other way around.
I do think that the government’s conduct vis-a-vis care homes needs to be examined in the cold, hard, light of day. But I would not want that potentially scandalous conduct to distract us from the equally important task of preparing for “the next one”.
I am loathe to put it in quite such pessimistic terms, but looking back over the bad advice, the late decisions to lock down, the evidence that those decisions led to the spread in the UK, that companies simply weren’t prepared for the transition, that as a society we need more practice… it is apparent that we have a lot to learn.
Sadly we seem to be more determined to careen from one misadventure to the next with barely sufficient time to breather between the next headline, let alone have time to allow cooler heads to prevail and actually implement some concrete, actionable plans.
And let’s be honest, this isn’t rocket science. Japan, Hong Kong, South Korea, New Zealand; all saw much lower per-capita infection and mortality rates – because they took Covid seriously. We did not, and UK mortality rates speak for themselves.
Looking backwards is important to help us learn from past mistakes. But we also need to be looking forward to spot and avoid the next one before it is upon us.
All very fine and large, but where does it get us. Can we look forward to a compo fest or maybe Hancock and Boris dragged through the streets on a hurdle? Probably not – so, interesting but useless.
“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….
Now if I were in Hancock’s shoes that question would certainly pop into my mind and immediately be squashed and any evidence shredded and denied. Because realistically Hancock was going to condemn some old people to death anyway and that reality had to be covered up. Why, because he had no resources and had he tried requisitioning hotels using ordinary labour etc there would have been screaming from the media and lawyers and the result much the same – and public. He could hardly leave them on trolleys outside the care homes – much too public. Better to keep it quiet. Callous, but that is realpolitik.
So the bottom line is what will be done. Probably nothing and nothing is IMHO the right answer. Another pandemic is likely 50 to 100 years in the future. Whether we will have improved the bed/patient ratio by then – I doubt. To be honest dishing out compo to the relatives of those who died a bit early seems a bit infra dig and I resent handing money to lawyers.
Into the realms of speculation, but I can certainly imagine the minister seeing the scenes in Italy and demanding that UK hospitals were cleared of bed blockers as fast as possible to make space for the expected wave of COVID patients. And perhaps a civil servant asking, “is that wise, minister?”
According to Dominic Cummings, last May: “We were told categorically in March [2020] that people would be tested before they went back to care homes. We only subsequently found out that that hadn’t happened. The government rhetoric was we put a shield around care homes – it was complete nonsense. Quite the opposite of putting a shield around them – we sent people with Covid back to the care homes.” https://www.bbc.co.uk/news/health-57259671
The tragedy of it is that this misguided policy seeded the disease into settings where the most vulnerable – the sick and elderly – were sitting ducks, with less protection than they would have in the hospitals, with little testing, PPE or guidance.
It would be interesting to know if the levels of COVID deaths in UK care homes were similar to other countries. Perhaps this will come out eventually in Baroness Hallett public inquiry, which has been consulting on its terms of reference and will send recommendations to the PM next month. Hearings won’t start until next year at the earliest, so heaven knowns when it might deliver its report.
So would you characterise their position as “We had to have them discharged in order to treat the still-productive 20-to-70-year-olds who were going to get ill. We knew it risked tens of thousands of deaths, but of no-longer-productive people, and we hoped it would be far fewer than it was, but if we hadn’t done that, we couldn’t have treated and cured as many other people as we did, and they would have died instead. What would you have done?”
People aged 20-70 were far less likely to get ill and die than those more elderly who could be discharged to care homes. So that’s a false dilemma. As soon as it was clear what was happening the discharges without testing were stopped. It wasn’t even necessary, merely convenient.
The government has been found to have acted unlawfully. Tens of thousands of people died as a result of infections in care homes. Sadly no minister will ever be held to account for this in a court of law. There should be consequences for such a cavalier approach to solving one problem, a shortage of hospital beds, by creating a worse problem elsewhere.