Coronavirus: Govt facing legal action unless it admits to acting 'unlawfully' over care homes

4 June 2020, 01:16 | Updated: 4 June 2020, 09:36

The daughter of an 88-year-old man who died in a care home is demanding the health secretary retract his claim that "a protective ring" was thrown around care homes or she will take him to court.

Dr Cathy Gardner, whose father Michael Gibson died on 3 April, wants an acknowledgement the treatment of care homes up to and during the pandemic was unlawful.

In particular she wants an admission that guidelines allowing coronavirus patients to be discharged from hospitals into care homes untested was unlawful.

Lawyers representing Dr Gardner have sent a pre-action letter to Matt Hancock giving him 14 days to respond.

They say if there is not an adequate response they will begin proceedings for judicial review at the High Court.

Dr Gardner said: "The loss of my father was always going to be really difficult but these circumstances have made it even more heartbreaking.

"To think a lady being brought back into the care home with the virus might have contributed to his death is so shocking."

Dr Gardner is now crowdfunding to support her case.

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Sky News has obtained a copy of the letter sent by lawyers representing Dr Gardner.

In it lawyers write: "Our client believes that the policies and measures adopted by the health secretary, NHS England and Public Health England have manifestly failed to protect the health, wellbeing and right to life of those residing and working in care homes.

"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."

Dr Gardner said: "They must answer for the policies they put out and most importantly for what they failed to do at a time when they knew that people were at risk; they knew that some people were more vulnerable than others; they took a positive step to discharge people from hospital into a place packed full of vulnerable people and that decision is so shocking it's almost unbelievable."

"I'm being driven to do this by a real sense of anger about what happened with my father. He was in a care home. It should have been a place of safety."

Dr Gardner's lawyer Paul Conrathe of Sinclairslaw said: "We want the three parties, the secretary of state, NHS England and Public Health England, to come back and say we accept we have acted unlawfully and accept they've exposed the most vulnerable and disabled to disease and illness that could end their lives and has done for many, and issue a public statement to that affect and accept a court order ruling they've acted unlawfully."

The Department for Health told us they had received Dr Gardner's letter regarding legal action but could not comment further.

We spoke to an independent barrister James Robottom who told us the claim was potentially significant and a "headache" for the government.

He said: "They'll have to deal with it because they'll have to put a letter of response in and unless they concede the breaches in the letter of response then the matter will proceed to court.

"I've got absolutely no doubt that permission will be granted by the High Court to proceed to judicial review.

"It's a serious claim and it's a claim that the defendants, the secretary of state, NHS Commission Board and NHS England are going to have to take seriously."