Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others: Admn 27 Apr 2022

Patient transfer policy was unlawful

The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The respondents said that at the time it was understood (wrongly) that only symptomatic individuals were infectious, and that such had been excluded. Testing was not widely available at the time.
Held: The decisions of the Secretary of State for Health and Social Care to make and maintain a series of policies contained in documents issued on 17 and 19 March and 2 April 2020 were unlawful because the drafters of those documents failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission, which had been highlighted by (among others) Sir Patrick Vallance in a radio interview as early as 13 March. Non-symptomatic transmission would mean that one elderly patient moved from hospital to a care home could infect other residents before manifesting symptoms, or even without ever manifesting symptoms. The judges found that it was irrational for the DHSC not to have advised until mid-April 2020 that where an asymptomatic patient (other than one who had tested negative for COVID19) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
The Article 2 claim was dismissed.


Lord Justice Bean, Mr Justice Garnham


[2022] EWHC 967 (Admin)


Bailii, Judiciary, Judiciary Summary


European Convention on Human Rights 2


England and Wales


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Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
See AlsoGardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 5-Nov-2021
The claimants challenged what they said was the Defendants’ failure to protect residents of care homes in England from the risk of serious harm or death from COVID during the first wave of the pandemic between March and June 2020. . .
CitedRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
CitedKolyadenko And Others v Russia ECHR 28-Feb-2012
A reservoir had flooded drowning victims.
Held: The primary duty under the positive obligation was to have a legislative and administrative framework in place to provide effective deterrence against threats to the right to life which must . .
CitedBudayeva and Others v Russia ECHR 20-Mar-2008
The court looked at the particular practical measures and steps which the State had taken to protect against mudslides, which were said to create a foreseeable, mortal risk to the residents of the affected villages. Despite the broad margin of . .
CitedOneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
CitedNational Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
CitedWatts v The United Kingdom ECHR 4-May-2010
(Admissibility) The claimant said that her transfer from her existing care home to another care home would reduce her life expectancy.
Held: A badly managed transfer of elderly residents of a care home might have a negative impact on their . .
CitedHM Attorney General for England and Wales v British Broadcasting Corporation (BBC) QBD 22-Feb-2022
Application for an injunction to restrain the BBC from broadcasting a programme about covert human intelligence sources. One factual issue in the application was whether briefings that had been given by the Government to the newspapers had been . .
CitedGood Law Project and Another, Regina (on The Application of) v The Prime Minister and Another Admn 15-Feb-2022
The Claimants contended that the government has a policy or practice by which people have been appointed to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant . .
CitedRichards, Regina (on The Application of) v The Environment Agency CA 17-Jan-2022
The proper approach to be taken by a court to allegations that an environmental regulator, in this case the Environment Agency, is acting in a way which is incompatible with rights derived from Articles 2 and 8 of the Convention for the Protection . .
CitedGeorgel And Georgeta Stoicescu v Romania ECHR 26-Jul-2011
A woman had been attacked by stray dogs in Bucharest and suffered debilitating health conditions.
Held: The claim succeeded even when the Romanian government had no reason to think that this particular individual was at greater risk of being . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
CitedMorahan, Regina (on The Application of) v Her Majestys Assistant Coroner for West London Admn 11-Jun-2021
Whether there is a duty to hold a Middleton inquest following the death of a voluntary in-patient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community. . .
CitedBracking and Others v Secretary of State for Work and Pensions CA 6-Nov-2013
Application for permission to appeal against refusal of leave to bring judicial review of decision by the respondent to close the Independent Living Fund.
Held: McCombe LJ summarised the application of section 149 of the 2010 Act: ‘1 . . . .
CitedMaguire, Regina (on The Application of) v United Respons and Others CA 10-Jun-2020
Whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009 . .
CitedThe Law Society, Regina (on The Application of) v The Lord Chancellor Admn 3-Aug-2018
Claim for judicial review of a decision by the Lord Chancellor to reduce the amount of money made available as legal aid for defending people accused of crimes. The decision challenged in these proceedings has reduced fees payable under a scheme . .
CitedOsman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
CitedSarjantson v Humberside Police CA 18-Oct-2013
The claimant had been severely injured in an attack by a group of young men. He said that the defendant had failed in its duty to protect him and his family. He now appealed against the action being struck out.
Held: the judge’s interpretation . .
CitedNencheva And Others v Bulgaria ECHR 18-Jun-2013
The Court was concerned with State-run care homes where appallingly substandard conditions had been tolerated over a significant period. Nencheva involved a municipal home for children with severe mental disorders. The Fourth Section said:
CitedVilnes And Others v Norway ECHR 5-Dec-2013
ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
State’s failure to ensure that essential information regarding risks associated with use of decompression . .
CitedFernandes De Oliveira v Portugal ECHR 31-Jan-2019
ECHR Judgment : Remainder inadmissible : Grand Chamber
In the particular context of healthcare it requires the State to ‘make regulations compelling hospitals, whether private or public, to adopt . .
CitedLopes De Sousa Fernandes v Portugal ECHR 19-Dec-2017
ECHR The Court was concerned with denial of access to medical treatment. The court held that in cases involving alleged medical negligence the State’s positive obligations were regulatory, including ‘necessary . .
CitedCentre For Legal Resources on behalf of Valentin Campeanu v Romania ECHR 17-Jul-2014
ECHR Grand Chamber – Article 34
Locus standi
Standing of non-governmental organisation to lodge application on behalf of deceased mental patient
Article 2
Positive obligations
CitedRegina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative, Human Rights

Updated: 28 April 2022; Ref: scu.676357