Ministers and public health officials were warned that stricter proposals were needed to protect care home patients from Covid-19, Wednesday’s high court ruling revealed.
Draft versions of guidance for hospitals and care homes during the first pandemic wave included measures that were challenged by NHS officials.
The government and Public Health England (PHE) were found to have acted unlawfully over a policy that allowed patients to be discharged from hospitals into care homes during the onset of the pandemic.
In their ruling on Wednesday, Lord Justice Bean and Mr Justice Garnham concluded that policies in March and early April 2020 failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.
It came after two women took Public Health England, the then health secretary Matt Hancock and NHS England to court over the deaths of their fathers in care homes during the first wave of the pandemic. During the last two years more than 20,000 care home residents have died from Covid-19.
NHS England was not found to have acted unlawfully and judges dismissed the claims, saying the Department for Health and Social Care and PHE were ultimately responsible.
However, court documents show early draft PHE guidance advised against transferring asymptomatic patients into care homes with outbreaks and against admitting Covid positive patients who had not completed their isolation period to care homes. Senior NHS leaders challenged the draft guidance, saying it would make care homes “too risk averse”.
According to documents revealed in the judgment, the then minister for social care Helen Whately raised several concerns about the discharge of Covid-positive patients into care homes.
In a later draft, the court document said, “the original PHE advice against transfers of asymptomatic patients to care homes without an outbreak was removed”. It added: “That draft was sent to the minister for social care for approval. The minister expressed a preference not to discharge Covid-19-positive people to care homes but was advised that discharge would occur when clinically appropriate.”
A third draft of the guidance, in April 2020, included the statement: “Some patients with non-urgent needs will be discharged into care homes for their recovery periods. Residents may also be admitted to a care home from a home setting. These patients may have Covid-19; may be symptomatic or may be asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed.”
In the final draft, a paragraph promising that “any patient who has exhibited symptoms of Covid-19 whilst in hospital will be tested” was removed.
Dr Cathy Gardner, one of the claimants who brought the case, said: “My father, along with tens of thousands of other elderly and vulnerable people, tragically died in care homes in the first wave of the Covid-19 pandemic. I believed all along that my father and other residents of care homes were neglected and let down by the government.”
One NHS medic in the Midlands told The Independent: “This breaks my heart. I remember us forcibly repatriating patients back to care homes. Having to argue with the staff, and sending the patients against the staff wishes. I often wonder how many deaths I directly contributed to by doing the government bidding. We did this with patients who almost certainly had Covid, but we had not rapid testing available. The ones we sent back didn’t need medical/hospital treatment but we definitely seeded it into the care homes.”
An NHS spokesperson said: “We welcome the court’s dismissal of all claims against the NHS.”
The Department for Health and Social Care was approached for comment.