JUDICIAL REVIEW APPLICATION TO BE MADE REGARDING COVID-19 AND CARE HOME DEATHS
KRW LAW LLP (KRW) is instructed by Jennifer Crozier the daughter of Mrs Iris Hull Mrs Hull was a resident in the Clifton Nursing Home from 6 April 2020 to 1 May 2020. On 30 April 2020 Mrs Hull tested positive for COVID-19. Mrs Hull died on 12 August 2020.
Our client is applying to judicially review the decision of the Department of Health and Social Care (DOHSC) regarding the “COVID-19: Guidance for nursing and residential care homes in Northern Ireland” policy dated 17 March 2020.
This application is made on foot of the judgment of the High Court in England and Wales in R (oao Gardner & Harris) v Secretary of State for Health and Social Care and Others which was handed down on 27 April 2022. In that decision the High Court held:
“the Secretary of State and Public Health England in respect of both the March Discharge Policy and April Admissions Guidance documents to this extent: the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.”
The DOHSC March Guidance did not consider the risk of transmission from individuals who were asymptomatic.[i] This is particularly clear from, where it is said that if neither carer nor care receiver is symptomatic then “no personal protective equipment is required above and beyond normal good hygiene practices”.
The DOHSC March Guidance appears to be a duplication of the Guidance published by Public Health England (“PHE”) on 13 March 2020.
Jennifer Crozier invites the DOHSC simply to agree that, in light of the decision in Gardner & Harris, the March 2020 guidance was unlawful as it was irrational not to advise that, so far as possible, a patient discharged from hospital (other than one who had tested negative) should be kept apart from other residents for 14 days.
[i] An asymptomatic case is one in which someone has laboratory confirmed SARS-CoV-2 infection but does not develop symptoms (ie, fever, dry cough, fatigue). Asymptomatic transmission refers to transmission of the virus from a person who did not develop disease symptoms.