April 28th, 2022 by James Goudie KC

In Gardner v SoS for Health and Social Care (2022) EWHC 967 (Admin) a Divisional Court dismisses claims under the Human Rights Act, but upholds common claims in respect of documents that set out an “irrational” policy in “failing” to advise that where a Covid asymptomatic patient was admitted to a Care Home, he or she should, as far as practicable, be kept apart from other residents for 14 days. At para 139 the Court stated that it cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have now been repeated is always academic or a hypothetical exercise in the context of judicial review.

From para 224, the Court discussed Article 2 of the ECHR.  It referred to the three distinct duties on the State: (1) a negative duty, to refrain from taking life (save in exceptional circumstances); (2) a positive duty, to conduct a proper and open investigation into deaths for which the State might be responsible; and (3) a positive duty, to protect life in certain circumstances. This latter positive duty contains two distinct elements. The first is a general duty on the State, a systems duty, to put in place a framework designed to provide effective deterrence against threats to the right to life. The systems duty requires the State to have a regulatory framework in place designed to provide effective measures to protect life. It is a high level structural duty, rather than an obligation of ……

The second element is an operational duty. At para 250, the Court concluded, in terms that are important for local authorities, that:-

(1) A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty;

(2) Generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals;

(3) However, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks post by the violent and unlawful acts of others or man-made hazards or natural hazards, or from appalling conditions in residential care facilities of which the authorities had become aware;

(4) In appropriate circumstances (which remain so far undefined), the operational duty may also arise where State or municipal authorities engage in activities which they know or should know post a real and immediate risk to the life of a vulnerable individual or group of individuals.

The Court added, at para 252:-

“There is no authority of the Strasbourg court which has gone as far as holding that a State is under an operational duty to take all reasonable steps to avoid the real and immediate risk to life posed by an epidemic or pandemic to as broad and undefined 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. We should keep pace with the Strasbourg jurisprudence, but not run past it and disappear into the distance. The Defendants did not, in our view, owe the Article 2 operational duty for which the Claimants contend.”

From para 262, the Court considered the PSED.  It emphasised the following principles:-

(1) The PSED must be fulfilled before and at the time when a particular policy is being considered.

(2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.

(3) The duty is non-delegable.

(4) The duty is a continuing one.

(5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

(6) Provided the Court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.”

The Court concluded:-

“In the highly pressured circumstances of March and April 2020 we do not think that the Government can reasonably be criticised for failure to comply with the usual procedural step of carrying out an equalities impact assessment of its policies relating to care homes addressing the need to eliminate discrimination against the elderly or the need to advance equality of opportunity between the elderly and the rest of the population. In any event, on the facts of this case, the PSED adds nothing to the duties of the Defendants at common law.  Anyone devising a policy affecting care homes must, if they are to act rationally, bear in mind that a majority of residents of care homes are not only elderly but also have other health issues which make them particularly vulnerable to infections. That would be the case even if s.149 of the 2010 Act had never been enacted.”

From para 266, the Court turned to public law. It said:-

“266. We remind ourselves that we are here considering whether the decisions made and the policies promulgated were unlawful by the standards of public law. In addressing that issue we have to consider the facts as they were presented at the time to the decision-makers. As Sir James correctly puts it, “hindsight is not permissible”.  We must ask ourselves whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

267. In answering that question we recognise that the Government was having to make judgements in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. It was doing so in circumstances of enormous pressure where the matters at stake were of the utmost gravity. Furthermore, in the early months of the pandemic the options available to the Government were constrained by practical limitations as well as scientific uncertainty …”

Nonetheless, the Court concluded, at para 278, as follows:-

“278.   In our judgment, however, 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. We turn next to consider what that change should have been.”

“289.   Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admission Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.

290. Counsel for the Defendants have put forward possible counter arguments. There is no evidence that any of these was considered at the time and in any event they are entirely unconvincing …”

“293.   This was a significant delay at the critical period. We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.”

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