Divisional Court hears challenge to government’s…

On Monday 14 March 2022 the Divisional Court (Bean LJ and Garnham J) started a six-day hearing on a judicial review challenge against various policies in respect of care homes which were implemented right at the start of the COVID-19 pandemic, including the policy of discharging some hospital patients to care homes back in Spring 2020.

The case is brought by Dr Cathy Gardner and Fay Harris, whose fathers died whilst resident in care homes in April and May 2020. The Claimants allege that the government’s policies breached the UK’s positive obligation to protect the right to life of care home residents during the early stages of the pandemic under Article 2 of the European Convention on Human Rights. They argue that these policies were responsible for tens of thousands of deaths of care home residents in the UK in 2020. The government argues that all measures were taken to protect care home residents in line with the scientific advice at the time.

The case is set to be an important development in the scrutiny of the government’s pandemic response, with the draft terms of reference of the COVID-19 Inquiry (published on 10 March 2022) including “the management of the pandemic in care homes and other care settings”. It is also likely to be of significant importance for exploring the edges of key principles on the state’s duties to protect life under the ECHR.

This case was named as one of the Top 20 cases for 2022 in The Lawyer and has received widespread media coverage. Charles Bishop and Yaaser Vanderman are acting for the Secretary of State for Health and Social Care and Public Health England, in a team led by Sir James Eadie QC.