UK Policies on the transfer of hospital patients to care homes in the pandemic were legally flawed, so should we blame the politicians or Covid chaos?
Patients were transferred from hospitals to care homes in all parts of the UK in March and April 2020 to make way for an anticipated influx of Covid patients. In a judicial review of Government policy in England judges concluded that care homes should have been advised to isolate the new arrivals where possible. No such advice was given by health ministers in any of the UK’s four nations at the time. What went wrong? Were politicians to blame for not realising that people could have Covid and pass it on even if they showed no symptoms? Or did the High Court expect more of decision makers than was achievable in the turmoil of the war against Covid? If another deadly virus appears should politicians and medical professionals assume that people can catch it and pass it on without symptoms, until the contrary is proven?
The High Court made headlines in April 2022 when it declared that UK Government policy on the transfer of hospital patients to care homes in England in March and early April 2020 was - in part - unlawful. Contrary to suggestions in some media reports of the case, the High Court found no fault with the policy of discharging patients to care homes without testing. The High Court accepted that hospitals needed to free up beds for incoming Covid patients, and that testing all patients prior to transfer would have been impossible because there weren’t enough tests to go round. In fact, more tests soon became available, and on 15 April policy changed and required the testing of all hospital patients transferred to care homes.
Nevertheless, the High Court regarded the policy on transferring patients prior to 15 April as “irrational” to the extent that it lacked an essential element, and that element was advice to care homes to isolate all transferees from hospitals for 14 days where it was practicable to do so. A word of explanation. When the judges say that it was irrational to omit this advice, they mean that omitting it flew in the face of the scientific evidence available to those who drew up the policy. The legal proceedings were brought by the daughters of two residents of care homes who died in April and May 2020, but are relevant to any residents who might have been affected by the Government’s policy. The Court’s ruling could lead to claims for compensation against the UK Government.
The Government announced on 4 May 2022 that it would not appeal the ruling to a higher court, saying that the right place for these matters to be considered was the public inquiry into Covid 19 to be chaired by Baroness Heather Hallett DBE. The inquiry will begin to hold public hearings in 2023.
Although the case was concerned with UK Government policy for England, it has implications for the devolved governments of Wales, Northern Ireland and Scotland, whose policies on transfers to care homes also failed to include advice to isolate patients on arrival. It seems that a court case in Northern Ireland similar to that decided in the High Court is about to be started against the Northern Ireland Department of Health, and there is a report of a possible court action in Scotland.
Those responsible for the policy of transferring patients to care homes in England were the Secretary of State for Health and Social Care, Matt Hancock, and Public Health England. The responsibility of Matt Hancock was personal responsibility for the policy and its published documents, rather than responsibility for the acts of his officials.
The reason the High Court regarded the failure to advise on isolation as irrational was that evidence was emerging in March 2020 that people with Covid but without symptoms of it might nevertheless be capable of passing it on to others (non-symptomatic or asymptomatic transmission). The Court said that “the changing evidential picture was recognised within Government” because Government Health Minister Lord Bethell had said in the House of Lords on 9 March that "large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit." On top of this, Sir Patrick Vallance had said on the Today programme on 13 March that "it looks quite likely that there is some degree of asymptomatic transmission".
The Court referred to various comments and scientific papers by experts and said that although this did not amount to “scientific proof” of asymptomatic transmission, it did show that it was “well recognised by the experts that such transmission was possible”. On the other hand, the Court accepted that there was “no evidence that Matt Hancock or anyone advising him had actually addressed the issue of the risk to care home residents of asymptomatic transmission”.
Indications that medical professionals might instinctively resort to isolation as a precaution against non-symptomatic transmission of Covid come from a report (unrelated to the proceedings) that “many care homes in Wales” though lacking official guidance on isolation, as were their English counterparts, “took it upon themselves to try to isolate all patients coming in.” The same report records the comment of a Public Health Wales official that he wouldn’t advocate isolation “as routine practice for any patient coming out of hospital.”
Was the Court right to say that emerging evidence of asymptomatic transmission was “recognised within Government”? The difficulty with relying on Lord Bethell’s comment in the House of Lords (on his very first day as a Health Minister) that “large numbers” of asymptomatic people were “infectious” is that it goes further than any of the positions being taken by the Government’s scientific advisors at the time and goes further than Sir Patrick Vallance’s comment on the Today programme that it was “quite likely” that there was “some degree” of asymptomatic transmission.
What did Sir Patrick mean by “quite likely” and “some degree”? These are not words which precisely convey probability or extent. Did Sir Patrick mean that he or anybody else “within Government” thought that the likelihood of transmission being possible and the potential degree of transmission was sufficient to be reflected in concrete policy measures? Some readers might be surprised that neither Lord Bethell nor Sir Patrick Vallance were asked to explain to the High Court what they did mean, and to explain the advice or science behind what they said. But in proceedings for judicial review, which is the type of proceeding we are talking about, it is rare to ask anybody to attend and answer questions, and cases are decided entirely on written evidence – in this case “thousands of pages” of it, according to the High Court. The Hallett Inquiry into Covid-19, in contrast, will call witnesses in public to give evidence on oath.
In one sense, the Court could not go far wrong in suggesting that experts accepted the possibility of non-symptomatic transmission of Covid. A common infectious respiratory disease, flu, can be transmitted non-symptomatically. A more deadly infectious respiratory disease, SARS (also caused by a coronavirus), appeared in 2003, and infected 8000 people worldwide before being contained. Cases of non-symptomatic infection were detected in a study in Singapore, and although the study says that transmission from these non-symptomatic patients “appear[ed] to play no or only a minor role” this does not absolutely rule out transmission from infected persons without symptoms.
Non-symptomatic transmission of Covid must always have been a theoretical possibility and would have remained such a possibility unless ruled out, which obviously it was not. This takes us back to the robust professional instincts of some care home staff in Wales, who isolated transferred patients without any guidance. There is an argument to be made that a new and potentially deadly virus should for purposes of policy making and health-care precautions be presumed to be transmissible by persons without symptoms until that possibility has been ruled out. Such a presumption would, for example, support a policy of isolation if hospital patients were transferred to care homes for the same reasons such transfers took place in the present pandemic. The strength of the High Court’s approach is that there would be so much to be gained from such a policy and so little to be lost.
The Court acknowledged that it was not for Ministers and senior officials to keep on top of the emerging science – that was the job of those scientists advising the Government. The Court also stresses that "hindsight is not permissible." “We must ask ourselves”, says the Court, “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.”
But in the circumstances then existing in March 2020, were the scientists who were advising the Government speaking with one voice?
Some of those scientists were to be found in the ranks of NERVTAG, one of the specialist expert committees identified by the High Court as advising the Government. The High Court refers to a review by NERVTAG on the evidence for asymptomatic or subclinical transmission of Covid. The review took place on 20 March. This was after the comments of Sir Patrick Vallance on the 13 March, and after the publication on 17 March of the first policy document condemned by the High Court as irrational because it did not advise that transferred patients be isolated. The High Court states that NERVTAG concluded from its review that:
"There is plenty of information on asymptomatic people testing positive for [Covid] but very little information regarding transmission. There is an ongoing process at PHE [Public Health England] to track new information. There are sporadic reports, but the data are not very convincing" (my emphasis).
The actual minutes of the NERVTAG meeting of 20 March reveal that the review was based on a previously circulated paper by a virologist at Public Health England, who attended the meeting as an observer, and that the words quoted above were the words of another observer at the meeting, the Deputy Chief Medical Officer, Jonathan Van-Tam.
It is difficult to reconcile the words of Lord Bethell in the House of Lords on 9 March, and Sir Patrick Vallance on the Today programme on 13 March, with those of Jonathan Van-Tam, endorsed by NERVTAG, at its meeting on 20 March.
NERVTAG refers to an ongoing process at Public Health England to track new information on non-symptomatic transmission of Covid. Although not identified as such by the High Court, Public Health England was itself one of those advisors whose job it was to keep on top of the emerging science and explain its significance to Ministers, and as we have seen it was feeding expert papers into NERVTAG. An executive agency of the Department of Health and Social Care from 2013 to 2021, it has employed numerous distinguished scientists, including household name Jenny (now Dame Jenny) Harries, who was a Regional Director of PHE prior to being appointed Deputy Chief Medical Officer in 2019. The 2018 Framework Agreement between the Department of Social Care and PHE states that PHE has operational autonomy and provides government with “expert, evidence based information and advice on public health matters.” Its remit for 2019-2020 added that “PHE’s scientists… inform Government policy.”
On 24 March 2020, version 7 of the PHE paper "Are asymptomatic people with Covid-19 infectious?" was produced. This paper described cases of asymptomatic infection, but said that these cases “do not provide evidence for asymptomatic transmission of [Covid]….. “ (emphasis added by the High Court). The paper added that “Detailed epidemiological information from more cases and contacts is needed to determine whether transmission can occur from asymptomatic individuals or during the incubation period on a significant scale."
So NERVTAG (working with the Deputy Chief Medical Officer) did not find the data very convincing, having read a paper from Public Health England, and Public Health England did not think it had enough epidemiological information to determine whether asymptomatic transmission can occur “on a significant scale”. Nevertheless, the High Court concluded that Public Health England acted irrationally in failing to see the need for isolation for hospital patients transferred to care homes: in effect, Public Health England failed to appreciate the significance of its own analyses.
But if Public Health England, working hand in glove with NERVTAG and the Chief Medical Officers, and itself one of the expert scientific bodies charged with advising Matt Hancock on the evolving science, and involved in the preparation of the controversial policy documents, got it wrong, did PHE’s “irrationality” cause or contribute to Hancock’s “irrationality”? Did he act irrationally in failing to see that they, the scientific experts, were acting irrationally? Once again, we have to recall the limits of the judicial review procedure, and that there was no evidence either way on the question whether PHE or any other scientific advisor had ever raised with Hancock the question of asymptomatic transmission.
The High Court recognised that the pressured circumstances in which all concerned were working meant that normal decision-making procedures were not being followed and normal documentation (and therefore evidence) of how decisions had been taken was not always available. The Court also says that in answering the question whether decision makers were acting rationally and therefore lawfully it recognised that the Government was having to make judgements in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. The Court adds that the Government “was doing so in circumstances of enormous pressure where the matters at stake were of the utmost gravity”.
Might these pressured circumstances and improvised working methods have contributed to the “irrational” outcomes of the decision making under scrutiny? The Court gives no hint that it thought that they might or that they could provide any justification for what the judges regarded as the failings of Hancock and Public Health England.
Conservative Matt Hancock and Public Health England were not alone in failing to advise care homes to isolate those transferred to them from hospitals. There was no such advice from the Ulster Unionist Health Minister in Northern Ireland, the Scottish National Party Health Minister in Scotland, and Labour’s Health Minister in Wales. These ministers had access to the same scientific data, analysis and advice, from bodies such as NERVTAG and SAGE, and from the same collective input of the Chief Scientific Advisers and Chief Medical Officers of the UK’s four nations, as had Matt Hancock in London. Yet none advised that patients discharged from hospitals to care homes should be isolated if possible.
Health ministers in Belfast, Cardiff and Edinburgh might say that their situations were different from that of Matt Hancock. The emerging evidence that people without symptoms of Covid could pass it on was recognised within the UK Government of which Matt Hancock was part, as shown by comments in the UK Parliament by Government Health Minister Lord Bethell. Health ministers elsewhere in the UK might say that it was not recognised within the Governments of which they formed part. Yet the High Court also regarded the comments on the Today programme of the UK’s chief scientific advisor, Sir Patrick Vallance, as showing recognition within the UK Government of the emerging evidence on asymptomatic transmission. Links between the chief scientific advisors of the four nations have been strong during the pandemic and coordinated advice has been provided to government departments in Belfast, Cardiff, Edinburgh and London. That might make it difficult for health ministers outside London to say that what Sir Patrick Vallance said on the Today programme had nothing to do with them.
If any or all of the devolved Governments are taken to court because they failed to advise that hospital patients transferred to care homes should be isolated if possible, each case will be decided on its own particular facts. But if different court cases lead to different verdicts on the legality of the policies adopted by the Governments of the four nations, this might be seen by many residents of care homes around the UK, and by their relatives, as something of a postcode lottery, rather than justice according to law.
By Derrick Wyatt, QC, Emeritus Professor of Law, University of Oxford, and former barrister specialising in litigation before the EU Courts. He taught constitutional and administrative law at Oxford. He is a Member of the International Academic Council of Fundacion Fide, an independent and non-partisan Spanish think-tank.