'My dad died from coronavirus in a care home. Now I’m taking legal action against the government that made it a death trap'

Between March and June, coronavirus became the leading cause of death in male care home residents in England and Wales, and the second leading cause of death in female residents. Since March, there have been at least 30,000 excess deaths in care homes due to the coronavirus, impacting thousands of families up and down the country.

“Our care homes were effectively thrown to the wolves,” concluded Meg Hillier MP, Chair of the House of Commons Public Accounts Committee, which published a damning report on 29 July. It ruled that government policy to clear NHS hospital beds, which meant patients were discharged to care homes until mid-April without ever having a Covid-test, had been an “appalling error”.

Not only were visitors allowed to visit care homes till 2 April (after lockdown), but it wasn’t until 15 April that the Department of Health began Covid-testing all residents before re-admitting them from hospital to care homes. Prior to that, there had been no requirement to do so. This led to care homes feeling pressured to take residents back with no knowledge of whether they were now carrying the virus. Approximately 25,000 people were discharged with no test.

Cathy Gardner’s father was in one of those homes.

On Thursday 2 April, a week after lockdown began, Dr Cathy Gardner drove the 161 miles from her home in Sidmouth, Devon, to see her father in an Oxfordshire care home just before he died. Because of Covid-19, Gardner was not allowed inside and instead was taken to the back of the building to watch her sleeping dad, Michael Gibson, through a ground-floor window. He didn’t know she was there in the dark. He died the next day.

The GP who treated the 88-year-old told Gardner that her father was killed by coronavirus, which was likely brought into the home by another resident discharged from hospital. So despite Gibson never leaving the home himself, he became a sitting duck. But without a test to prove he had the virus (there were no widely available tests in care homes till 16 April, 13 days after his death), the death certificate could only record “probable Covid”.

Gardner, who has a PhD in virology, was angry; she hadn’t seen her father - who had advanced dementia - since February and she had believed he would be kept safe in a care home setting (on 16 May, health secretary Matt Hancock said a “protective ring” had been thrown around care homes since the start). To make matters worse she also felt guilty for travelling to see him during lockdown in his last hours of life when (it would later emerge) Dominic Cummings had been in Durham.

Michael Gibson was born in 1931. A child during the Second World War he went on to a career as a superintendent registrar of birth marriages and deaths. “He was a very meticulous person, because doing that kind of job is all about accurate records,” Gardner tells The Independent. “During his working life he registered thousands of events”. His own marriage lasted 65 years. He raised his family in Northamptonshire and took an interest in aviation history, even writing a book on planes. Later he developed dementia and was moved to Cherwood House in late 2019.

Although his dementia was advanced, Gardner says “he still recognised me, I could see the love in his eyes, that love between a father and daughter”. “[His death] was heartbreaking, it’s not how I imagined his last days. I could not hold his hand and give him a smile near the end. I knew that losing my father would be tough, losing him in these circumstances is truly devastating.

“It hadn’t even occurred to me that my father would be at risk of Covid-19, he was meant to be safe there.” Of course Gibson was not the only one to die in a home. But, unlike the thousands of other families, Gardner has taken action against the government in a bid to get answers.

In was in late January when the Scientific Advisory Group for Emergencies (SAGE) held its first meeting about the Covid-19 threat to the UK, the day before the Wuhan lockdown. It was decided by members, including Patrick Vallance and Chris Witty, that NHS facilities need only “consider” how they “might respond to potential cases” if the virus were to arrive on UK shores.

At a meeting just 18 days later, the group concluded there was now a “realistic probability” that there was “already sustained transmission in the UK” or that there would be soon (analysis by the University of Nottingham released on 25 August now suggests the first positive Covid test was on 21 February). Despite this by the end of February, Public Health England still said it was “very unlikely” that anyone receiving care in a care home, would become infected. The first death of a care home resident in England from Covid-19 came days later on 6 March.

Even after residents started contracting, and dying from, Covid-19, visitors were still permitted in care homes. For anyone feeling unwell or recently returned from abroad, it was up to individual discretion.

On 13 March the government said no one who believed they had the virus should be visiting a home, but continued to let friends and family visit, actively encouraging homes to consider the “positive impact” of seeing these people. Boris Johnson did allude to not making “unnecessary visits” on 16 March, but when Reuters questioned number 10, it was told he was referring to the 13 March advice, not stricter rules.

By this point Gardner’s father, Michael Gibson, was already unwell. The GP told her the suspected Covid-19 diagnosis over the phone. “I was shocked and hadn’t even occurred to me he would be at risk, he was in a home and should have been safe,” Gardner explains. Over the next three weeks he deteriorated and died on 3 April.

Ironically on the final day before Gibson’s death, 2 April, the Department of Health finally revised its visitor policy, saying: “Family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life.” But as the nationwide lockdown was already in place, many were not travelling anyway.

Gardner has now begun legal action against the government. Her case hinges on the accusation that the government treatment of care homes was unlawful because it exposed residents to serious harm. Legally the state is required to protect citizens and Gardner’s lawyers say government policy breached this legal duty to residents and workers in the advice and guidance it gave, particularly that it allowed patients back into homes without testing.

She is incensed by the hospital discharge policy which she says made care homes a “death trap”. “Because of my virology background I have an understanding of spread, and I know you cannot bring someone with an infection like that into a care home,” says Gardner. “If hospitals cannot control spread, a care home is never going to be able to. It seemed there was not one iota of thought about that.” (On 13 March PHE still said “no PPE is required above and beyond normal good hygiene practices” if neither the care worker or resident was showing symptoms).

“At the same time they were telling the rest of us to lockdown, they were discharging these people into care homes. That struck me as insane, negligent, irresponsible. How on earth can that be right?” says Gardner. “It was so essential to protect the NHS and clear beds that they didn’t care about what happened”.

On 2 June Gardner’s team served a pre-action letter to Matt Hancock, NHS England and Public Health England, demanding they admit the policies were unlawful and requesting Hancock’s “protective ring” claim be retracted. But after an “inadequate response”, and no acceptance of wrongdoing, Gardner filed for a judicial review at the High Court. A judicial review is when a judge reviews the lawfulness of a decision made by a public body. It is not about whether the decision was right or wrong but whether the right procedures were followed.

The DHSC told The Independent that it was unable to comment on potential or ongoing legal action (but it is worth noting the House of Commons Public Accounts Committee report, said: “The department says that it took rational decisions based on the information it had at the time, but acknowledges that it would not necessarily do the same thing again.”)

On 14 August Gardner published a statement detailing the government response to her case, which again denied wrongdoing. It’s defence relies on four main points: that it is wrong in principle to consider the full scope of its failings in respect of care homes, that Gardner is not allowed to challenge policies because they were introduced after her father’s death, that she has not brought the claim soon enough (just over three months since his death), and that much of her claim is “academic” because the policies being critiqued have now been withdrawn.

“Amazingly, the government’s focus has been to try to knock out my claim on procedural grounds rather than to provide a full and transparent explanation for its handling of the crisis,” says Gardner. “I remain outraged that [its] dithering, incompetence and outright failure to lead has caused the premature death of my father and thousands of other vulnerable care home residents. I will continue to fight for justice for him, and for them, for as a long as I can.”

It is not known, and likely never will be, how many discharged hospital patients were carrying Covid and were responsible for care home outbreaks (between 9 March and 17 May, around 5,900 homes in England reported an outbreak). Gardner still wants answers: “I am doing this on the behalf of other people who cannot. Somebody has to hold the government to account.”

On 6 May Mr Johnson conceded there is an “epidemic going on in care homes, which I bitterly regret” but he tried to push the blame onto care homes, saying: “We discovered too many didn’t really follow the procedures.” A statement he later clarified but did not apologise for. Instead he doubled down, claiming asymptomatic transmission was not known about early on. This has also been refuted by the House of Commons Public Accounts Committee, which found: “It was already becoming clear in late March, and certainly from the beginning of April, that the Covid-19 infection had an asymptomatic phase, when people could be infectious.”

Despite the acceptance of much fault by the committee, senior government leaders remain steadfast. On 22 July, for the first time in months, Matt Hancock, permitted care homes in England to reopen their doors, telling visitors to exercise caution and not “undo all the hard work” done during the pandemic. It might be the end of lockdown, but for Gardner and thousands of families supporting her case, the real battle is only just beginning.