A successful High Court action concerning deaths in care homes in England may point the way for similar cases in Ireland, reports Kieran Feely.
An Irish law firm has welcomed a judgment of the High Court of England and Wales relating to the deaths from Covid-19 infection of two residents in care homes in England. In its judgment, the court found that policies on admission to nursing homes during the pandemic were irrational. The policies had been issued by the Secretary of State for Health and Social Care, and Public Health England (PHE).
In a statement to the Medical Independent (MI), Mr Enda McGarrity and Mr Conal McGarrity of PA Duffy and Co Solicitors, which operates from Dungannon and Dublin, stated that while the judgment did not set a precedent for litigation in Ireland, it was notable that the policies subject to challenge were very similar to policies in operation in Ireland in the early days of the pandemic.
“We are instructed in approximately 50 wrongful death actions by bereaved family members of nursing home residents who died after contracting Covid-19. Many families are concerned that policies adopted by the State and/or individual nursing homes have caused or contributed to the death of their loved ones,” according to the solicitors.
“The continued failure of the State to establish a public inquiry or commission of investigation into these matters has forced bereaved families to resort to litigation to obtain answers and accountability for the deaths of their loved ones.”
Gardner and Harris
The case in England was taken by two individuals whose fathers died in care homes in the early stages of the pandemic. Dr Cathy Gardner’s father, Mr Michael Gibson, died in a care home in Oxfordshire on 3 April 2020; and Ms Fay Harris’s father, Mr Donald Harris, died in a care home in Hampshire on 1 May 2020.
Dr Gardner and Ms Harris challenged several policies issued by the health authorities during the early stages of the pandemic. They maintained that the policies failed to adequately address the risks to residents of care homes.
The judgment examined the history of policy development with particular emphasis on symptomatic and pre-symptomatic transmission and infection; discharge from hospitals; guidance on arrangements to be adopted by care homes; testing; and personal protective equipment (PPE). The court considered academic papers and official documents and statements relating to infectiousness and transmission of the virus asymptomatically and pre-symptomatically. The court paid particular attention to the timing of events.
Asymptomatic transmission
The question of whether people who were asymptomatic transmitted the virus was considered by the health authorities early in the pandemic. On 28 January 2020, at a meeting of the scientific advisory group for emergencies (SAGE), a paper prepared by PHE was discussed. The minutes of the SAGE meeting recorded that “there is limited evidence of asymptomatic transmission, but early indications imply some is occurring”.
During February 2020, numerous official and academic sources considered asymptomatic transmission. The possibility of asymptomatic transmission was acknowledged from as early as 4 February 2020.
The Secretary of State answered a question in parliament on 16 March 2020 explaining that the policy whereby persons in the same household as a symptomatic case should isolate for 14 days was to help reduce pre-symptomatic transmission.
The claimants’ point was the Government had concluded that pre-symptomatic transmission was taking place, according to the judgement.
Grounds for claim
The claim was brought under article 2 of the European Convention on Human Rights (ECHR) and for a judicial review under common law.
Article 2 of the ECHR provides that everyone’s right to life shall be protected by law. Ireland is a signatory to the ECHR and its provisions apply in this jurisdiction.
Judicial review is the mechanism by which individuals can challenge the decision-making processes of public bodies, including ministers of the government, and it is a common avenue for litigation against the State in Ireland and the UK.
The ECHR challenge was on the basis that the government and the NHS took steps which would introduce, or risk introducing, Covid into care homes and otherwise failed to take any or adequate steps to prevent this occurring. Specific complaints included that the government should have known that care home residents were vulnerable; care homes were unsuitable environments for infection control and lacked expertise; there were shortages of PPE; a lack of testing; movement of staff between facilities; and failure to restrict visitors.
The judicial review claim was that the government and the NHS failed to assess the risk to lives which would be caused by the hospital discharge policies; failed to adopt testing of people discharged to care homes when capacity allowed; failed to consider the likelihood of transmission from persons without symptoms until mid-April 2020; and failed to consider the unsuitability of the care home environment for isolation and infection control.
Article 2
Referring to previous judgments of the European Court of Human Rights (ECtHR), the court said article 2 imposes duties on the State, including a positive duty to protect life. The duty involves two elements. The first is the ‘systems duty’, which is a duty on the State to put in place a legislative and administrative framework to protect life. In healthcare, the systems duty refers to regulatory frameworks for the provision of healthcare services to the public. The second element is the ‘operational duty’ and refers to the taking of positive steps or actions by a State to protect life.
The court decided there was no arguable case that the systems duty had been breached and that there was nothing wrong with the framework for issuing guidance or policy documents.
In regard to the operational duty, the court concluded that there was no decision of the ECtHR that would place the State under an operational duty, in a pandemic, to as broad a sector of the population as residents of care homes. The article 2 claim was dismissed by the court.
Judicial review
In considering the judicial review, the court said it must ask whether the decisions taken by government fell outside the range of reasonable options, in light of the knowledge available at the time and the circumstances under which it was operating. The court said that the government was operating in an environment of uncertain and rapidly developing scientific knowledge, and that it was constrained by practical as well as scientific uncertainty – for example, the worldwide shortage of PPE.
The claimants criticised the guidance on residential care provision, issued on 13 March 2020, for not addressing the risk to patients of transmission from asymptomatic visitors, staff, or new residents. It was not until 23 March 2020 that a lockdown was announced and visits to care homes prohibited, except for emergencies. The court regarded it as unrealistic to say that all visitors should have been banned from 13 March.
The claimants challenged the policies, Next steps on NHS response to Covid-19 (issued on 17 March 2020) and Covid-19 hospital discharge service requirements (issued on 19 March 2020). These policies were criticised by the claimants for failure to consider the safety of care home residents; failure to make transfer of patients into care homes conditional on an assessment of the ability of each care home to provide safe care; and failure to provide for the testing of each patient before discharge to a care home.
The court stated that it regarded this criticism as unrealistic. The government was advised that there was a real risk of the NHS becoming overwhelmed and it could not wait to see whether that advice was over-cautious. Vaccine availability was a long way into the future, testing capacity was limited at that time and there was a worldwide shortage of PPE. The court also stated that discharges from hospital could not wait for every care home to be assessed.
The court noted that there was a separate question as to how people discharged from hospital to care homes should have been treated and cared for. The court commented that the 19 March document could, for example, have said that where an asymptomatic patient was admitted to a care home they should, so far as practicable, be kept apart from other residents for up to 14 days.
The document Admission and care of patients during Covid-19 incident in a care home was published on 2 April 2020. The court noted that the policy stated that some of these patients may have Covid-19, whether symptomatic or asymptomatic, and highlighted a statement contained in this policy which stated: “All of these patients can be safely cared for in a care home if this guidance is followed.”
The court said it was not clear how the policy came to be issued in these terms. The court noted that earlier drafts of the policy stated that people who were confirmed to have Covid-19 should not be admitted to a Covid-free care home, and those who did not appear to have Covid should not be admitted to a care home where there was already an outbreak.
The court concluded that those drafting the policies issued on 19 March and 2 April failed to take account of the risk to vulnerable and older residents of asymptomatic transmission.
The document Covid-19: Our action plan for adult social care, issued on 15 April 2020, was criticised by the claimants on the grounds that it did not address the risk of transmission to residents from staff, including agency and bank staff. The court considered this criticism to be unrealistic, as staff shortages were widespread at the time.
The court concluded that the judicial review of the decisions of the Secretary of State and PHE succeeded on the grounds that the policies issued on 19 March and 2 April failed to advise that where an asymptomatic patient, other than one who had tested negative, was admitted to a care home they should have been, as far as practicable, kept apart from other residents for 14 days.
In the court’s view, the “growing appreciation that asymptomatic transmission was a real possibility ought to have prompted a change in government policy concerning care homes earlier than it did”.
Damages were not sought by the claimants.
The position in Ireland
The first policy document in Ireland relating to transfers of patients from an acute hospital to a residential care facility was issued on 10 March 2020. It was entitled Guidance on transfer of hospitalised patients from an acute hospital to a residential care facility in the context of the global Covid-19 epidemic. In contrast with the position in England in March 2020, there was a recognition that asymptomatic people might be infectious. There was also a recognition of the fact that appropriate placement of patients could reduce the risk of spreading the disease.
It is noteworthy that testing or isolation of asymptomatic patients with no respiratory tract infection was not advised when transferring to a nursing home. It is also of note that testing was not advised for transfer of asymptomatic patients identified as contacts, although isolation was advised in these cases.
The document made no mention of PPE, visits, or sharing of staff between nursing homes.
It is important to note that numerous subsequent policies were issued by the public health authorities and many revisions were undertaken in response to changing circumstances and the emergence of new scientific evidence.
Systems duty
In relation to its systems duty, the State has in place legislation to protect residents of nursing homes in the Health Act 2007 and the Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2013 (SI No 415/2013). HIQA is the designated regulator of nursing homes. Healthcare professionals providing services to residents of nursing homes are regulated under legislation. The State also had administrative arrangements for the provision of public health advice and guidance through various bodies including the national public health emergency team (NPHET), the HSE and the Health Protection and Surveillance Centre (HPSC).
The question of whether the State complied with its systems duty is likely to be central to litigation relating to deaths in nursing homes. The interim report of the special Dáil committee, chaired by Independent Deputy Michael McNamara, found that ultimate responsibility for the care of older persons lies with the State. The committee said that the lack of national clinical oversight of care for residents in the sector was “one of the biggest weaknesses exposed by Covid-19”.
The committee stated that “one of the most troubling aspects of the crisis was the fragmented relationship between public health authorities and the private nursing home sector and that this was a key factor in the spread of infection and unfortunate loss of life in nursing homes during the pandemic.”
In its final report, which was published in October 2020, the committee said that Covid-19 highlighted systemic weaknesses in the provision of services and in the regulation of both service provision and the protection of employees, which resulted in poorer outcomes for many. The committee noted that many of these issues were known for years but not adequately addressed.
It found that a failure to upgrade homes meant residents could not be isolated. The committee also referred to placing of residents in facilities that had compliance issues, especially in regard to infection control; shortfalls in the number and skills capacity of workers; delay in reviewing the adequacy of the regulatory framework; absence of clinical oversight; failure to invest in acute and step-down hospital capacity; lack of a coherent policy in the care of older people; and a policy of privatisation disconnected from the public health system.
The Covid-19 expert panel on nursing homes was established by the then Minister for Health, Simon Harris, in May 2020. The purpose of the panel was to provide assurance that public health measures to safeguard nursing home residents were appropriate and in line with international guidelines. The panel consulted widely with stakeholders and the public, including residents of nursing homes and their relatives.
The final report of the expert panel was published on 14 August 2020 and contained 86 recommendations relating to nursing home procedures, staffing levels, communications, oversight, preparedness, and the need for a revised model of care. An implementation oversight team was set up to support the implementation process.
The fourth and final progress report on implementation was recently published by the Department of Health. Minister for Mental Health and Older People, Mary Butler, commented: “The pandemic shone a light on older persons’ care and highlighted many fragilities within our system and has resulted in the garnering of significant commitment to and momentum for wide-scale improvement across all stakeholders.”
“I am committed to continuing to work with the Department, HSE, HIQA and stakeholders in further delivering on this crucially important and extensive programme of work.”
Operational duty
A HIQA report, entitled The impact of Covid-19 on nursing homes in Ireland, published in July 2020, covered some of the operational duty aspects of the management of the pandemic in nursing homes. The report outlined the measures taken by the Chief Inspector of Social Services in response to the outbreak of Covid-19 in nursing homes. The Chief Inspector found that several areas of concern impacted the capacity of nursing homes to effectively keep residents safe in the event of an outbreak of Covid-19. These concerns relate to the absence of clinical governance; staffing levels; availability of resources such as PPE and access to specialist expertise; ability of providers to isolate residents; and a history of non-compliance with key regulations.
The case in England was taken by two individuals whose fathers died in care homes in the early stages of the pandemic
The HIQA report stated that, given the nature of the virus, ready access to testing was a key requirement. The Authority noted that while access to testing was available in hospitals, it was not in place in nursing homes at the onset of Covid-19.
Nursing Homes Ireland (NHI), a representative body for private nursing homes, issued a statement on 25 March 2020 which was highly critical of the State’s response to the crisis in nursing homes.
Speaking recently to MI, Mr Tadhg Daly, CEO of NHI, said the nursing home sector was left behind and forgotten in the early stages of the pandemic. “The focus was almost exclusively on the acute hospitals. Not enough attention was given to the nursing home sector, given the age profile, level of dependency and what we saw happening in other European countries,” said Mr Daly.
In Gardner and Harris, the court noted that for the operational duty to apply, there must be a real and immediate risk to life, knowledge of the State of the risk, and a connection with the responsibility of the State.
The court concluded, however, that the ECtHR had no authority to hold that the State was under an operational duty in the pandemic to as broad a sector of the population as residents of care homes for the elderly.
“There is no clear and consistent line of Strasbourg authority which indicates that such a duty exists and we cannot be at all confident – indeed we gravely doubt – that the ECtHR would be willing to declare that it does,” said the court.
In relation to challenges under the ECHR, the domestic courts are constrained by previous decisions of the ECtHR. If they follow the logic of the High Court of England and Wales, it is possible that an action that is unsuccessful in the domestic courts could end up before the ECtHR in Strasbourg. The domestic courts have far greater discretion in relation to challenges taken by way of judicial review as these are not subject to similar constraints.
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