Thirty families are starting legal action against the government, care homes, and several hospitals in England over the deaths of their relatives in the early days of the COVID-19 pandemic. The families argue not enough was done to protect their loved ones from the virus. They are claiming damages for loss of life and the distress caused. The government says it specifically sought to safeguard care home residents using the best evidence available. The legal claims focus on the decision in March 2020 to rapidly discharge hospital patients into care homes without testing or a requirement for them to isolate. The cases follow a 2022 High Court judgment that ruled the policy was unlawful – as it failed to take into account the risk to elderly and vulnerable care home residents of asymptomatic transmission of the virus.
Between early March and early June 2020, nearly 20,000 care home residents in England and Wales died with Covid-19. That’s about a third of all care home deaths during that period. The government said at the time it had “tried to put a protective ring” around care home residents. One of the cases is being brought by Liz Weager, whose 95-year-old mother Margaret tested positive for the virus in her care home in May 2020 and died later in hospital. “What was happening in the management of those care homes? What advice were they having?” Liz asks. “It goes back to the government.
There was a lack of preparedness, which then translated down to the care home.” All the families are bringing claims for damages against the secretary of state for health and social care – plus the individual care homes and hospitals involved in each case. They argue the European Convention on Human Rights was breached, including a failure to protect their relatives’ rights to life and to protect them from discrimination. Emma Jones, from Leigh Day solicitors is representing the families. She says she hopes for “a full and thorough investigation into the deaths, which might help our clients to feel they have obtained justice for their loved ones”.
The diary
Liz Weager believes important evidence is provided by her mother’s diary – a small black book embossed with the date 2020 and packed with bits of paper. “She kept diaries all her life,” says Liz. “This one is particularly special.” Although Margaret’s physical health had declined in her nineties, “mentally she was all there still,” says Liz. “And she knew everything that was going on in the world.” Margaret’s final diary mainly documents the times of visits, phone calls and the staff who came in to look after her – but there are also observations which paint a picture of what was going on in the care home more widely. Her daughter feels it provides a timeline which shows a care system under huge pressure in the early weeks of the pandemic.
On 3 March 2020, the government sets out its Coronavirus action plan, with the then-Prime Minister, Boris Johnson, telling people “our country remains extremely well-prepared”. It is also the day that experts on the Scientific Advisory Group on Emergencies (Sage) talk about care homes for the first time – it is their 12th meeting. The minutes mention the difficulty of introducing social distancing in residential settings. Meanwhile, Margaret has other matters on her mind. She writes she is feeling well, “but the staff situation is bad”. In the days that follow, the virus takes hold in the UK. Most of the focus is on the NHS. Care providers supporting vulnerable elderly and disabled clients warn they do not have enough personal protective equipment (PPE), such as masks and gloves. They are also calling for testing and clearer, quicker government guidance.
On 17 March, the NHS tells hospitals to rapidly discharge patients where possible, including into care homes. There is no requirement for testing or isolation. Margaret’s family say they were later told that some hospital patients had ended up in her care home. On 23 March, the whole country goes into lockdown. Over the weeks, Margaret jots down in her diary what she sees. It ranges from a note about the lack of potatoes for her dinner, to the Do Not Attempt Resuscitation (DNAR) form she is asked to sign with the doctor on the phone, and the matron in her room. Initially she signs it, but then asks for things to be “put back as they were”.
It would later be claimed that some care home residents in England had bans on resuscitation placed on them without discussion. By early to mid-April deaths from Covid in care homes reach a peak. On 13 April, Margaret writes that staff have started taking her temperature each day. From then on, she makes a daily note of it. The government publishes its social care action plan on 15 April and says all patients discharged from hospital will now be tested. Previous advice had said “Negative [coronavirus] tests are not required prior to transfers/admissions into the care home.” On 20 April, Margaret records that it is the “first day of masks”, then on the following day notes, “all wearing masks”.
On 30 April, she writes that her “breathing is very bad” if she exerts herself in any way. Two days later, she is told her door must be kept shut for “public health”. And on 4 May, after a visit from the matron at 10:30 in the morning, she notes in spidery letters – “I have the virus”. “It’s hard to see,” says her daughter, Liz. This is Margaret’s last entry in her diary – the blank pages that follow tell their own story. Liz had not been able to visit her mother for nearly seven weeks. Now she had to watch from a distance as Margaret arrived at the hospital with the paramedics. “She was in her wheelchair, and they took her out of the ambulance. And we waved. And that was the last time we managed to get a glimpse of her.” Margaret died on 14 May 2020.
The following day the then-Health and Social Care Secretary, Matt Hancock, made his now well-known statement that: “Right from the start, we’ve tried to throw a protective ring around our care homes.” Liz says she was upset and angry after her mother died but thought long and hard before deciding to take legal action. “I felt that her care was completely lacking,” she says. “Ultimately, we all put our trust and our faith in these public servants. And it seemed to me that there was a lot of headless-chicken action going around. Where was the planning?”
The UK Covid-19 Inquiry, which started hearing evidence earlier this year, will look at many of the issues arising from the pandemic – including what happened in care homes. But it won’t examine individual cases. Solicitor Emma Jones, who is representing the families taking legal action, says they will ask the courts to look at whether the decisions taken in their cases were reasonable. “If not,” she says, “did the decisions cause or contribute to individuals losing their lives? And I would say that without the legal claims, the families won’t get answers to the questions.”
The government says it doesn’t comment on ongoing legal action, but a statement from the Department of Health and Social Care says: “Our thoughts are with all those who lost loved ones during the pandemic.” It says that, as well as specifically safeguarding care home residents, it aimed to protect the public throughout the pandemic. It concludes: “We provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents receiving vaccinations.”
