R (on the application of Gardner) v Secretary of State for Health and Social Care

The claim concerned policies and guidance issued during the first wave of the COVID-19 pandemic and whether they breached care-home residents' rights under the European Convention on Human Rights and were unlawful at common law. The court analysed the distinction between the Article 2 "systems duty" (to maintain a regulatory framework) and the Article 2 "operational duty" (to take practical steps to protect life), and applied domestic and Strasbourg authorities (including Osman and Rabone) to decide whether an operational duty extended to private care-home residents. The court rejected the Claimants' Article 2 and Article 8 human-rights challenges, concluding that no operational Article 2 duty arose in the broad way for which the Claimants contended and that the Government was entitled a wide margin of appreciation in an emergency with rapidly evolving science.

On public-law grounds the court found one significant error: the March hospital discharge policy and the April admissions guidance were irrational in failing to advise that an asymptomatic patient (other than one who had tested negative) newly admitted to a care home should, so far as practicable, be kept apart from other residents for 14 days. The court therefore allowed the common-law challenge in part and dismissed other public-law and equality claims.

This judicial-review claim was brought by relatives of two care-home residents who died in the first wave of the COVID-19 pandemic. They sought declarations that a series of policies and guidance issued by the Secretary of State for Health and Social Care, NHS England, and Public Health England breached Articles 2 and 8 of the European Convention on Human Rights and were otherwise unlawful at common law. The contested documents included the March PHE Policy (13 March 2020), the March NHS discharge instructions and requirements (17 and 19 March 2020), the April Admissions Guidance (2 April 2020) and the April Action Plan (15 April 2020).

Background and parties: The claimants relied on a combination of Convention and public-law grounds and argued both a systemic failure and that operational steps had not been taken to protect care-home residents from symptomatic and asymptomatic transmission. Defendants included the Secretary of State (who sponsors PHE), NHS England and Public Health England. The court heard extensive documentary material and legal submissions; there was no oral evidence and the court excluded expert opinion evidence in many parts.

Nature of relief sought: declaratory relief under the Human Rights Act and judicial review remedies (no damages sought).

Issues framed by the court: (i) whether Article 2 (and Article 8) positive obligations (systems and/or operational duties) were engaged and, if so, whether they were breached; (ii) whether public-law duties (failure to take into account relevant considerations, irrationality, breach of the public sector equality duty, and procedural defects) were breached in relation to the challenged policies; and (iii) whether contemporaneous scientific uncertainty and resource constraints affected the review.

Court reasoning: The court held that the systemic Article 2 duty was not breached and that existing Strasbourg jurisprudence did not permit the wide extension of an Article 2 operational duty to all private-sector care-home residents on the facts alleged. The court emphasised the necessity to follow Strasbourg authority and to avoid developing Convention law domestically beyond what could be justified. On public law, the court accepted the context of a rapidly evolving emergency and the broad margin of reasonable responses, but identified a discrete public-law failure: the March discharge documents and the April admissions guidance failed to consider or advise, and therefore irrationally omitted, a practicable precaution that asymptomatic (or untested) hospital discharges should, so far as practicable, be kept apart from other residents for 14 days pending testing or isolation arrangements. That limited failing made part of the common-law claim succeed; other claims (Article 2, Article 8, most public-law complaints, PSED) were dismissed. The court also addressed evidence and procedural history, including interlocutory rulings refusing extensive disclosure and cross-examination.

This first-instance judicial-review claim was dismissed in respect of the Human Rights Act claims (Articles 2 and 8) and most public-law complaints. The court held that the Defendants did not owe the Article 2 operational duty in the broad terms advanced by the Claimants and that the margin of appreciation and emergency context were important. However the court found that the March Discharge Policy and the April Admissions Guidance were irrational in failing to advise that, where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, they should, so far as practicable, be kept apart from other residents for 14 days. On that limited common-law ground the Claimants succeeded against the Secretary of State and Public Health England; the claims against NHS England were dismissed.

The proceedings were first issued on 12 June 2020. Permission to bring judicial review was granted by Linden J on 19 November 2020. Interlocutory applications for additional disclosure and cross-examination were refused on the papers by Cheema-Grubb J (5 August 2021) and again orally by Eady J (27 August 2021); an application for permission to appeal one interlocutory refusal was refused by Elisabeth Laing LJ on 22 August 2021. The court also gave an interlocutory ruling on evidentiary issues on 5 November 2021: [2021] EWHC 2946 (Admin). (This judgment is a first-instance determination: [2022] EWHC 967 (Admin).)