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Bereaved families lose bid for further evidence in Covid care homes case

Cathy Gardner's dad died in an Oxfordshire care home after it re-admitted a resident from hospital who wasn't tested for Covid.

Two women bringing a legal challenge over what they describe as a failure to protect those living in care homes from Covid-19, have lost a bid for the Government to provide further evidence.

Dr Cathy Gardner and Faye Harris, whose fathers both died in care homes from coronavirus, are suing the Department for Health and Social Care (DHSC), NHS England and Public Health England (PHE).

Dr Gardner’s father, Michael Gibson, died in an Oxfordshire care home on April 3 after it re-admitted – without Covid testing – a former resident who had been in hospital. Mr Gibson’s death was recorded as “probable Covid”.

Ms Harris’s father “died of Covid” after his care home accepted hospital discharges of patients who may have been infected with the virus.

The pair claim there was a failure to implement “adequate” measures to protect residents from the “ravages” of the virus and this was “one of the most egregious and devastating policy failures of recent times”.

They say certain key policies and decisions led to a “shocking death toll” of care home residents – estimated at 20,000 people between March and June – including an alleged policy of discharging patients from hospital into care homes without testing and suitable isolation arrangements.

The women argue that the decisions and policies under challenge were a breach of duties under human rights – including the right to life and right to freedom from inhuman or degrading treatment – and equality legislation.

They were given the go-ahead for a judicial review last November, but the case was back at the High Court in London on Wednesday, with lawyers for the two women arguing that the Government and health bodies have “manifestly failed to discharge their duty of candour in the proceedings”.

Their lawyers argued that the court has not been provided with “essential documents evidencing the defendants’ decisions” and asked for further disclosure of 132 further pieces of evidence.

However, in a ruling on Thursday, Mrs Justice Eady rejected the request for further evidence, saying it was not necessary for the court to decide the issues under challenge.

The judge also refused the claimants’ request to allow certain witnesses for the Government to be cross-examined during the full hearing, which is due to take place in October.

She said the Government should provide a further statement detailing the steps it has taken to gather the evidence it is putting before the court for the full hearing.

Jason Coppel QC, for the two women, said in his written arguments: “The Government’s failure to protect vulnerable care home residents from the ravages of Covid, including its taking of positive steps which introduced Covid infection into care homes, represents one of the most egregious and devastating policy failures in the modern era.

“The House of Commons Public Accounts Committee has described the errors made by Government as ‘reckless and negligent’ and ‘appalling’.

“An Amnesty International report found that Government decisions in relation to care homes were ‘heedless at best’ and ‘inexplicable’ and had ‘directly violated the human rights of older residents of care homes in England – notably their right to life, their right to health, and their right to non-discrimination’.”

Sir James Eadie QC, for the Government, opposed the applications for further disclosure and cross examination, saying that a previous judge who refused to grant them was right to say they are “excessive and disproportionate”.

He told the court there were many decisions which had to be made “very, very quickly, in the context of a pandemic which was breaking around everyone’s ears”.

The full hearing will be at the High Court in London from October 19 and is expected to last four days.

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