R (Gardner & Ors) v (1) Secretary of State for Health and Social Care (2) NHS England (3) Public Health England CO/2123/2020
Following a day long contested oral permission hearing, the High Court (Linden J) granted permission to apply for judicial review on all grounds of claim in Dr Cathy Gardner’s landmark legal challenge contending that the UK Government, and NHS England, unlawfully failed to take timely and adequate measures to protect the right to life of vulnerable care home residents during the COVID-19 pandemic.
Dr Gardner contends that:
- The UK Government breached the Article 2 ECHR rights of vulnerable care home residents, by failing to implement adequate and timely measures to protect them from the risk of serious harm or death from COVID-19.
- A number of specific measures and policies applied by the Government breached Article 2 ECHR because they increased the risk of vulnerable care home residents being harmed or killed by COVID-19. In particular: (i) the Government’s policy of encouraging care homes to share staff between different establishments, and (ii) the policy applied by the Government and NHS England which led to 25,000 NHS patients being discharged directly into care homes without being tested for COVID-19 or subject to any isolation requirements.
- The Government’s failures also breached their domestic statutory and public law duties.
- The Government’s policies indirectly discriminated against elderly and disabled care home residents.
- In formulating their policies, the Government and NHS England failed to have due regard to the interests of elderly and disabled care home residents, in breach of their statutory duty under s. 149 of the Equality Act 2010.
- The Government has acted in breach of its public law duty of transparency in repeatedly making public statements falsely asserting that it acted from “the very outset” of the pandemic to place a “protective ring” around vulnerable care home residents.
The Government – represented by First Treasury Council, Sir James Eadie KC – and NHS England argued that permission to apply for judicial review should be refused on a number of grounds: it was alleged that the claims were brought too late, that the Claimants did not have a sufficient interest in the issues to be allowed to apply for judicial review and that the claims were “academic”, because the Government and NHS England had subsequently changed their policies relating to care homes.
Linden J rejected all of these contentions, holding that: (i) the claims had been brought within time, (ii) the claimants plainly had a sufficient interest to bring judicial review proceedings in circumstances where their parents had died of COVID-19 in care homes, and (iii) importantly, the claims were not “academic”: there was an on-going, live, dispute between the parties in regard to whether the Government’s policies had breached their legal duties, including under Article 2 of the ECHR.
Jason Coppel KC, Joseph Barrett and Michael White of 11KBW acted successfully for the Claimant, Dr Gardner
Jonathan Auburn and Hannah Slarks of 11KBW appeared for the Secretary of State (led by Sir James Eadie KC)
Patrick Halliday appeared for NHS England (led by Eleanor Grey KC)
Coverage of the decision can be found here:
