LAWYERS representing bereaved families in Scotland say they are considering action “against those responsible for the preventable deaths that took place in care homes.”

The legal threat came after the High Court in London ruled that the UK government’s failure to isolate people discharged from hospitals to care homes in England without testing was “illegal” and “irrational”.

A similar policy was adopted in Scotland at the start of the pandemic, where, in a rush to free up hospital beds, more than 1,300 elderly people were transferred to care homes before a testing regime was in place.

Aamer Anwar, the solicitor for the Scottish Bereaved Families for Justice, said the policy had “operated as a petri dish for the spread of the Covid 19 virus.”

The lawyer said the families were partly considering legal action over fears Lady Poole, the chair of the Scottish inquiry examining the strategic response to the pandemic in Scotland, might not investigate care home deaths. 

In a statement, Mr Anwar said: “In January 2022 our legal team and the bereaved relatives met with Lady Poole who asked to hear their stories. At the meeting, they felt rushed and felt a lack of empathy. A number of relatives were lost to Covid19 acquired from hospitals as well as care homes.

“The relatives left the meeting feeling disappointed that the Scottish Inquiry might not investigate these deaths as Crown Office and the UK Inquiry will be. 

In over three months the families feel that very little has happened in Scotland and this is deeply disappointing, whilst it appears that the UK inquiry is moving apace.

“This is not what the relatives campaigned for, nor was it what they were promised by the Scottish Government and Deputy First Minister John Swinney.

“There now appears to be an attempt to avoid scrutiny of this issue and thus avoid responsibility, following today’s High Court decision, that cannot be allowed to happen in Scotland. 

“We will be considering in Scotland what further legal action can be taken against those responsible for the preventable deaths that took place in care homes.

“We will be raising these issues with Lady Poole, the Scottish Government but also with the Lord Advocate Dorothy Bain QC, to ask her to advise the families we represent why her inquiry into deaths in care homes is taking so long, and whether charges of corporate homicide will now follow.”

Responding to Mr Anwar's statement, a spokesperson for the inquiry said: “Following Lady Poole’s appointment in December 2021, the main focus has been to get the right people and systems in place to support its work. 

"The quality of the inquiry’s investigations and resulting recommendations depends on the inquiry having infrastructure to enable it to do its job.  Because it is an independent inquiry, those systems have to be set up from scratch. 

“That process is on-going and additional staff are being appointed to build the inquiry team to a level which reflects of scale of a pandemic which has affected all of the Scottish population. 

"In its establishment period, the inquiry’s focus of necessity is building processes which will enable it to function efficiently and deliver its recommendations as quickly as possible.   

“Lady Poole has already met a number of different organisations representing those affected by the pandemic, including bereaved families in January 2022.  These meetings have been extremely important and informative and will help shape the Inquiry’s investigations in the months ahead.

“The Inquiry is independent of Government and will carry out a fair, open and thorough investigation."

The High Court ruling came after action from two women who lost their fathers during the pandemic. 

Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died – partially succeeded in their claims against the then health secretary and Public Health England.

They said the ruling proves the “protective ring” that the then health secretary Matt Hancock claimed had been put around care homes was “non-existent”, a “sickening lie” and a “joke”.

In their ruling on Wednesday, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.

They said that despite “growing awareness” of the risk of asymptomatic transmission, there was no evidence that Mr Hancock or anyone advising him addressed the issue of this risk to care home residents in England.

The judges said: “The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

They added that it was “irrational” for the Government not to have advised that asymptomatic patients should isolate from existing residents for 14 days upon admission.

Dr Gardner and Ms Harris called on the Prime Minister to resign.

Speaking outside court, Ms Harris said she hoped the judgment will help families who lost loved ones “due to this Government’s reckless and unlawful policies”.

She said: “Their actions exposed many vulnerable people to a greater risk of death – and many thousands did die.

“It has only increased the distress to me and many others that the Government have not been honest and owned up to their mistakes.”

Dr Gardner said: “Matt Hancock’s claim that the Government threw a protective ring around care homes in the first wave of the pandemic was nothing more than a despicable lie of which he ought to be ashamed and for which he ought to apologise.”

A Government spokesman said it had been a “very difficult decision”, taken when evidence on asymptomatic transmission was “extremely uncertain”.

He said: “We acknowledge the judge’s comments on assessing the risks of asymptomatic transmission and our guidance on isolation, and will respond in more detail in due course.”

Scottish Labour deputy leader Jackie Baillie the ruling meant it was likely the Scottish Government had acted unlawfully. She said: “Scotland’s care home residents and the staff who cared for them were entirely failed during the pandemic.

“Lives were lost due to botched government guidance and human rights were infringed on a routine basis.

“The transfer of thousands of untested patients into care homes was dangerous and scandalous. Based on this ruling, it may well have been unlawful.

“This Scottish government have long undervalued care and this tragedy is the result. Ministers responsible must be held to account and the lessons of this scandal must be learned.”

Scottish Liberal Democrat leader Alex Cole-Hamilton said the verdict would "send shivers down the spines of Scottish ministers."

He added: "Discharging Covid-positive patients into care homes was one of the saddest episodes of the whole pandemic.

"The First Minister, her health secretaries and senior officials should be preparing to give evidence to the Covid inquiry, but nothing will bring back those who tragically lost their lives in Scotland's care homes"

Last year, the former Scottish health secretary Jeane Freeman admitted moving potentially infected patients into care homes was a mistake.

She said: “We didn’t take the right precautions to make sure that older people leaving hospital going into care homes were as safe as they could be and that was a mistake.”

Ms Freeman said: “I think our failures were not understanding the social care sector well enough so we didn’t respond quickly enough to what was needed in our care homes but also in social care in the community.”

Asked where the Government primarily went wrong, she said: “We wanted people who didn’t need to stay in hospital any longer - because they’d been treated and they were clinically well - to be discharged as quickly as possible, so we freed up those beds for covid patients. 

“Remember, the early predictions about the number of people going into hospital were terrifying actually. 

“But we didn’t take the right precautions to make sure that older people leaving hospital going into care homes were as safe as they could be and that was a mistake.

“Now, I might argue we couldn’t do anything other than we did and all the rest of it, but it still created a real problem for those older people and for the others who lived in care homes and for the staff who worked in care homes.”

Responding to the High Court ruling, a Scottish Government spokesperson said: “First and foremost our thoughts are with every single family who has lost a loved one during the course of the Pandemic.

“We are aware of the ruling at the High Court of England and Wales regarding decisions made by the UK Secretary of State for Health and Social Care and we will examine the findings in detail.

“The Scottish Government’s priority throughout the pandemic has been to save lives and we have sought to take the best decisions, based on the best scientific and clinical evidence that we have had at any given time, to keep people in our care homes as safe as possible.

“That is why in order to protect our care home residents, we have continued to prioritise the oldest first to receive protection through vaccination since the rollout began in January 2021.

“Scottish Ministers established an independent Scottish Covid-19 public inquiry on 14 December 2021. The purpose of the inquiry is to provide scrutiny and answers to the questions people have about the handling of the pandemic, and to learn lessons.

"In the published Terms of Reference for the Public Inquiry, the Government has included the issue of discharge to care homes.”