Two daughters suing government over ‘failure’ to protect care home residents after both their fathers, 89 and 88, died of Covid lose bid for health authorities to provide further evidence in case
- Dr Cathy Gardner and Faye Harris are suing the Government in High Court case
- On Thursday, a judge rejected a bid for Government to provide further evidence
- They claim Government had failed to protect care home residents from Covid-19
- Dr Gardner’s father Michael Gibson died ‘Covid probable’ in Oxford care home
- Ms Harris’ father Don was one of 24 residents who died ‘of Covid’ in a care home
Two daughters who are suing the Government over what they claim is a ‘failure’ to protect care home residents from Covid-19 have lost a bid for health authorities to provide further evidence.
Dr Cathy Gardner and Faye Harris, whose fathers both died in care homes amid the pandemic, are suing the Department for Health and Social Care (DHSC), NHS England and Public Health England (PHE).
Dr Gardner accused the Government of breaching the human rights of thousands of vulnerable people, including her father Michael Gibson, 88, a retired registrar who died at the Cherwood House Care Centre in Oxfordshire on April 3, 2020.
Ms Harris, 57, also joined the legal fight after her father Don, 89, an ex-Royal Marine, ‘died of Covid’ in May 2020 along with 24 residents at his Hampshire care home.
A judicial review was given the go-ahead last November and the case appeared at London’s High Court on Wednesday, with the women’s lawyers arguing the Government ‘failed to discharge their duty of candour in the proceedings’.
Dr Cathy Gardner (right) is suing the Government after her father Michael Gibson (right), 88, died ‘Covid probable’ at the Cherwood House Care Centre in Oxfordshire on April 3, 2020
The lawyers said the court was not provided with ‘essential documents evidencing the defendants’ decisions’ and asked for further disclosure of 132 further pieces of evidence.
But Mrs Justice Eady rejected the request in a ruling on Thursday, 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.
Dr Gardner’s father, Michael Gibson, died in an Oxfordshire care home after it had re-admitted, without Covid testing, a former resident who had been in hospital.
Her father’s death certificate had said ‘Covid probable’ because he perished before widespread-testing was introduced in care homes.
His bereft daughter was left devastated that she was forced to say goodbye to her octogenarian father through a care home window.
Ms Harris joined the legal fight after her father Don, 89, ‘died of Covid’ in May along with 24 residents of Marlfield care home. The home had accepted hospital discharges of patients who may have been infected with the virus.
Faye Harris, 57, also joined the legal fight after her father Don (pictured), 89, an ex-Royal Marine, ‘died of Covid’ in May 2020 along with 24 residents at his Hampshire care home
Ms Harris had planned to treat Don to a sailing trip in Portsmouth Harbour for his 90th birthday and had found a boat adapted to carry people in wheelchairs, so he could see the harbour where he was stationed from the sea again.
But just days later, Mr Harris died after an outbreak of coronavirus. Hampshire Court Council said later that a quarter of the 24 deaths there around this period were Covid-related but could have been higher.
Ms Harris previously told The Times: ‘Physically my dad was fit and he was well. He always had a smile on his face. When we left him he was mobile. He was strong and he was a fighter.
‘He had Alzheimer’s and had had care problems but he came through them all. He should not have died, he should have been on that birthday trip.’
After the legal case was launched, Dr Gardner argued the lack of ‘adequate’ measures to protect residents was ‘one of the most egregious and devastating policy failures of recent times’.
The women have claimed key policies, such as an alleged policy of discharging patients from hospital into care homes without testing and suitable isolation arrangements, led to a ‘shocking death toll’ of care home residents.
It is estimated that 20,000 people died in care homes between March and June.
The women argue certain decisions and policies 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.
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’.’
This week, 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 women’s lawyers asked for further disclosure of 132 further pieces of evidence. But Mrs Justice Eady rejected the request on Thursday, saying it was not necessary (stock image)
The case, which was filed at the High Court in June last year, accuses the Government of unlawfully exposing countless care home residents to substantial risk during the Covid pandemic.
Dr Gardner, also chair of East Devon District Council, believes her father’s death was part of a ‘national disgrace’.
The case will be for the benefit of every individual, including care home residents, staff and family members, affected by the government’s course of action, she said.
The government was met with staunch criticism of its handling of care homes during the health crisis, with particular policies allowing patients to be discharged from hospitals into care homes without being tested coming under fire.
A letter sent to Matt Hancock in June last year said Dr Gardner believed the policies adopted by the Health Secretary, NHS England and Public Health England ‘manifestly failed to protect the health, wellbeing and right to life of those residing and working in care homes’.
The letter also claimed: ‘Their failings have led to large numbers of unnecessary deaths and serious illnesses.
‘In addition, the failings of Government have been aggravated by the making of wholly disingenuous, misleading and – in some cases – plainly false statements suggesting that everything necessary has been done to protect care homes during the pandemic.’
The full hearing will be at the High Court in London from October 19 and is expected to last four days.
MailOnline has contacted the Department of Health for comment.
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