R (on the application of) DR CATHY GARDNER & Anor. v SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE & Ors.

An Article 2 operational duty is not automatically owed to all care-home residents because they are vulnerable to a pandemic. A real and immediate risk to life is necessary but not sufficient; the duty also depends on State responsibility, control or a recognised exceptional danger. Domestic courts must keep pace with Strasbourg law but should not create a substantially new Convention duty without clear authority. In pandemic judicial review, decision-making is assessed by reference to the knowledge and circumstances at the time. However, failure to consider the serious risk of asymptomatic transmission, and to advise practicable separation of asymptomatic hospital discharges from existing residents, was irrational.

The claimants, whose fathers died in care homes during the first wave of COVID-19, sought declarations concerning policies issued by the Secretary of State for Health and Social Care, NHS England and Public Health England. They alleged breaches of Articles 2 and 8 of the Convention and common-law public-law duties. The challenge concerned guidance on care-home infection control, hospital discharges, admissions and social-care measures between March and April 2020. The central issues were whether the Convention imposed the asserted positive duties, whether relevant risks had been considered, and whether the policies were irrational. Claims under other Convention and equality provisions were not pursued.

1. Article 2. The systems duty is a high-level structural obligation to maintain a regulatory framework designed to protect life, not an obligation to achieve a particular result. A regulatory deficiency must have operated to the claimant’s detriment. The court found no arguable breach of that duty.
2. The operational duty requires a real and immediate risk to life, but that is necessary rather than sufficient. The cases indicate the importance of State responsibility for welfare and safety, control, the nature of the harm and the exceptional character of the risk. Rabone v Pennine Care NHS Trust [2012] UKSC 2, Osman v United Kingdom (2000) 29 EHRR 245, R (Maguire) v Blackpool and Fylde Coroner [2021] QB 409 and R (Morahan) v West London Assistant Coroner [2021] QB 1205 supported that approach.
3. The Strasbourg cases concerning dangerous activities, natural hazards and appalling conditions in State care involved defined threats, particular localities or known and prolonged failures. They did not establish an operational duty owed to the broad and undefined population of elderly care-home residents during a pandemic. Under R (AB) v Secretary of State for Justice [2021] UKSC 28, domestic courts should keep pace with Strasbourg jurisprudence but should not establish a major new Convention principle. The Article 2 claim was dismissed.
4. Repackaging the same substantive complaint under Article 8 could not avoid the limits imposed on Article 2. R (Munjaz) v Ashworth Hospital [2006] 2 AC 148 did not create a separate route to the asserted duty, and Vilnes v Norway (5 December 2013) concerned information about health risks rather than the substance of policy decisions.
5. Evidence and public law. Non-compliance with CPR Practice Direction 32 went to weight rather than admissibility. There was no rule that factual disputes in judicial review must always be resolved in favour of the public authority. Contemporaneous documents, including their absence, could contradict generalised witness evidence. The policies had to be assessed without hindsight, in light of rapidly changing science, practical constraints and the range of reasonable choices open to government. The court would be slow to interfere with difficult scientific judgments reached after expert advice.
6. The public sector equality duty did not require a separate equality-impact assessment on these facts. Rational policy-making necessarily required attention to the vulnerability of care-home residents, so the duty added nothing material.
7. The urgency of discharging medically fit patients and the scarcity of testing did not make the March Discharge Policy unlawful. But the need to free hospital capacity did not remove the obligation to consider how discharged patients should be managed. The March Discharge Policy and the April Admissions Guidance irrationally failed to take into account the risk of asymptomatic transmission and failed to advise that an asymptomatic patient, unless testing negative, should so far as practicable be kept apart from other residents for 14 days.
8. The common-law claim therefore succeeded against the Secretary of State and Public Health England to that limited extent. The claim against NHS England was dismissed.

This was a first-instance judicial review. The judgment records permission granted by Linden J on 19 November 2020 and an interlocutory ruling at [2021] EWHC 2946 (Admin); no merits appeal is stated.