“care home providers are advised to review their visiting policy, by asking no one to visit who has suspected COVID-19 or is generally unwell, and by emphasising good hand hygiene for visitors. Contractors on site should be kept to a minimum. The review should also consider the wellbeing of residents, and the positive impact of seeing friends and family.”
“Asymptomatic transmission cannot be ruled out and transmission from mildly symptomatic individuals is likely.”
“The current coronavirus outbreak in China is the third epidemic caused by coronavirus in the 21st century, already surpassing SARS and MERS in the number of individuals infected. The higher number of infections may be attributable to late identification of the etiologic agent and the ability of the host to shed the infection while asymptomatic, rather than to greater infectivity of the virus compared with SARS.” (Emphasis added).
“Duration of infectivity: 14 days as upper limit (advice to self-isolate for 14 days still stands). Peak infectivity is probably around the start of symptom onset, average 2-6 days. …Virus shedding may reach significant levels just before onset of symptoms and continues for 1-2 days after (wide uncertainty).” (Emphasis added).
“The viral load that was detected in the asymptomatic patient was similar to that in the symptomatic patients, which suggests the transmission potential of asymptomatic or minimally symptomatic patients. These findings are in concordance with reports that transmission may occur early in the course of infection and suggest that case detection and isolation may require strategies different from those required for the control of SARS-CoV.” (Emphasis added).
“Overall, the viral load early after onset was high... However, a sputum sample collected on day 8 post-onset from a patient who died had a very high viral load…Notably, two individuals, who were under active surveillance because of a history of exposure to SARS-CoV-2- infected patients showed positive results on RT-PCR a day before onset, suggesting that infected individuals can be infectious before they become symptomatic.” (Emphasis added).
“There is insufficient data available to determine whether there is sustained transmission outside of the province of Hubei, but it is likely to be the case. … There were differing views within the group about the likelihood of sustained transmission in the UK both currently and in the near future. Some believe it is a realistic possibility that sustained transmission in the UK will become established in the coming weeks while others believe this likelihood is higher and that there may already be sustained transmission.” (Emphasis added).
“Asymptomatic infection is now well documented, but there is very limited evidence of transmission from asymptomatic cases. It is assumed that the substantial majority of transmission is from symptomatic individuals with COVID-19.” (Emphasis added).
“intended for the current position in the UK where there is currently no transmission of COVID-19 in the community. It is therefore very unlikely that anyone receiving care in a care home or the community will become infected. This is the latest information and will be updated shortly.”
“Extremely mild symptoms should be enough to trigger home isolation if this intervention is to be adopted.”
“the fact that an asymptomatic or nearly asymptomatic index case could have transmitted the infection to so many people raises concerns about the feasibility of containing the spread of SARS-CoV-2.”
“deploy phased actions to Contain, Delay, and Mitigate any outbreak, using Research to inform policy development. The different phases, types and scale of actions depends upon how the course of the outbreak unfolds over time. ...”
“the majority of patients in the present study seemed to be already beyond their shedding peak in upper respiratory tract samples when first tested, while shedding infectious virus in sputum continued through the first week of symptoms… reports of COVID-19 cases with mild upper respiratory tract symptoms, suggesting a potential for pre or oligosymptomatic transmission…Pharyngeal virus shedding was very high during the first week of symptoms with a peak at…day 4.”
“in addition to case reports, pre-symptomatic transmission has been inferred through modelling and the proportion of pre-symptomatic transmission was estimated to be around 48% and 62%.... major uncertainties remain in assessing the influence of pre-symptomatic transmission on the overall transmission dynamics of the pandemic.”
“Care home providers are advised to work with local authorities to establish plans for mutual aid, including sharing of the workforce between providers, and with local and community health services providers, and with deployment of volunteers where that is safe to do so…To minimize the risk of transmission, care home providers are advised to review their visiting policy by asking no one to visit who has suspected COVID-19 or is generally unwell, and by emphasizing good hand hygiene for visitors. Contractors on site should be kept to a minimum. The review should also consider the wellbeing of residents and the positive impact of seeing friends and family.”
“Assessment of the clinical and epidemiological characteristics of SARS-CoV-2 cases suggest that, similar to SARS-CoV, patients will not be infectious until the onset of symptoms…there have been case reports that suggest infectivity during the asymptomatic period, with one patient found to be shedding virus before the onset of symptoms. Further study is required to determine the actual occurrence and impact of asymptomatic transmission.”
“high proportion of undocumented infections, many of which were likely not severely symptomatic, appear to have facilitated the rapid spread of the virus throughout China…in addition the best fitting model has a reporting delay of 9 days from initial infectiousness to confirmation; in contrast, line-list data from the same 10-23 January period indicates an average 6.6 day delay from initial manifestation of symptoms to confirmation. This discrepancy suggests that pre-symptomatic shedding may be typical among documented infections. The relative timing of onset and peak of viremia and shedding versus onset and peak of symptoms has been shown to potentially affect outbreak control success.”
“In the UK, this conclusion has only been reached in the last few days, with the refinement of estimates of likely ICU demand due to COVID-19 based on experience in Italy and the UK (previous planning estimates assumed half the demand now estimated) and with the NHS providing increasing certainty around the limits of hospital surge capacity.”
“the reason it’s 14 days is the seven days for the person who’s got the infection, the incubation period that others may catch it, and the seven days after that.”
“Today, we need to go further, because according to SAGE it looks as though we’re now approaching the fast growth part of the upward curve. And without drastic action, cases could double every 5 or 6 days.”
“Many asymptomatic persons were actually a source of SARS-CoV-2 infection but were considered healthy before they underwent screening. The risk of viral spread from asymptomatic patients with infection suggest that prompt screening of family members of infected persons is important.” (Emphasis added).
“We report temporal patterns of viral shedding in 94 laboratory-confirmed COVID19 patients and modelled COVID-19 infectiousness profile from a separate sample of 77 infector-infectee transmission pairs. We observed the highest viral load in throat swabs at the time of symptom onset, and inferred that infectiousness peaked on or before symptom onset. We estimated that 44% of transmission could occur before first symptoms of the index.” (Emphasis added).
“Limitations in effective infection control and prevention and staff members working in multiple facilities contributed to intra- and interfacility spread… Information received from the survey and on-site visits identified factors that likely contributed to the vulnerability of these facilities, including 1) staff members who worked while symptomatic; 2) staff members who worked in more than one facility; 3) inadequate familiarity and adherence to standard, droplet, and contact precautions and eye protection recommendations; 4) challenges to implementing infection control practices including inadequate supplies of PPE and other items (e.g., alcohol-based hand sanitizer); 5) delayed recognition of cases because of low index of suspicion, limited testing availability, and difficulty identifying persons with COVID-19 based on signs and symptoms alone.”
“12.6% of case reports indicated pre-symptomatic transmission… ... the large number of reported asymptomatic transmission events is concerning.” (Emphasis added.)
“There is plenty of information on asymptomatic people testing positive for SARS-CoV-2 but very little information regarding transmission. There is an ongoing process at PHE to track new information. There are sporadic reports, but the data are not very convincing.” (Emphasis added)
‘Infection Prevention and Control guidance for Long-Term Care Facilities in the context of COVID-19.’
“This means some patients with non-urgent needs will be discharged into care homes for their recovery periods. Residents may also be admitted to a care home from a home setting. These patients may have COVID-19; may be symptomatic or may be asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed.”
“If a patient being discharged from hospital is known to have had contact with other COVID- 19 cases and is not displaying symptoms, secondary care staff must inform the receiving facility of the exposure. The receiving facility should ensure the exposed individual is isolated for 14 days following exposure to minimise the risk of a subsequent outbreak within the receiving facility.”
“May I ask you for some of the latest medical opinion, if I may put it that way? For how many days do we think people might be able to spread the virus while they are still asymptomatic? Professor Doyle:… On your question about how many days, we know that the incubation period ranges between three and five days. For people who are asymptomatic, they may have been asymptomatic for some period before symptoms appeared. We are still learning—this is a crucial issue for us— about those who are asymptomatic and never develop symptoms. We think that about 30% of people may be in that category. They have harboured the virus, but we do not know whether they adequately or effectively can transmit. Three to five days is when we begin to see people becoming unwell. Chair: When you say that the incubation period is three to five days, what you are saying is that people could be spreading the virus to others for up to five days before they show any symptoms? Professor Doyle: Yes, that is correct. As I said, we are still learning about that. It ranges over quite a long range, but in the majority of cases that we are analysing, about five days is the period. Chair: …At the start, you said that you could pass on the virus when you are asymptomatic, for potentially up to five days. Does that mean that, today, NHS staff are likely to be passing on the virus to their patients? Professor Doyle: This is something we are learning about. In theory, when people are incubating viruses, they can be infectious. We still have to chart the nature of this virus, and how infectious it is and at what point. We are working on first principles that it could be, and that is the precautionary principle. People tend to be most infectious—we have noticed this from the testing, and indeed from the clinical feedback we are getting from colleagues—at the beginning of this disease, particularly if they are severely unwell, and that does tail off. That is the issue about what happens between seven and 14 days; other important things do happen between seven and 14 days with those who are hospitalised. So, the answer in theory is yes, and at the beginning, particularly when people are symptomatic at the beginning, they may be at their most infectious, but we are still learning.” (Emphasis added).
“…Approximately half of all residents with positive test results did not have any symptoms at the time of testing, suggesting that transmission from asymptomatic and presymptomatic residents, who were not recognized as having SARS-CoV-2 infection and therefore not isolated, might have contributed to further spread.... If asymptomatic or presymptomatic residents play an important role in transmission in this population at high risk, additional prevention measures merit consideration, including using testing to guide cohorting strategies or using transmission-based precautions for all residents of a facility after introduction of SARS-CoV-2. Limitations in availability of tests might necessitate taking the latter approach at this time…these findings …suggest that these residents have the potential for substantial viral shedding. This analysis suggests that symptom screening could initially fail to identify approximately one half of SNF residents with SARS-CoV-2 infection. Unrecognized asymptomatic and presymptomatic infections might contribute to transmission in these settings. During the current COVID-19 pandemic, … all long-term care facilities should take proactive steps to prevent introduction of SARS-CoV-2, including restricting visitors except in compassionate care situations, restricting nonessential personnel from entering the building, asking staff members to monitor themselves for fever and other symptoms, screening all staff members at the beginning of their shift for fever and other symptoms, and supporting staff member sick leave, including for those with mild symptoms. Once a facility has a case of COVID-19, broad strategies should be implemented to prevent transmission, including restriction of resident-to-resident interactions, universal use of facemasks for all health care personnel while in the facility, and if possible, use of CDC-recommended PPE for the care of all residents (i.e., gown, gloves, eye protection, N95 respirator, or, if not available, a face mask) ...In settings where PPE supplies are limited, strategies for extended PPE use and limited reuse should be employed... As testing availability improves, consideration might be given to test-based strategies for identifying residents with SARS-CoV-2 infection for the purpose of cohorting, either in designated units within a facility or in a separate facility designated for residents with COVID-19. During the COVID-19 pandemic, collaborative efforts are crucial to protecting the most vulnerable populations.”
“anyone can spread it”
“between a third and a half of transmissions occur from pre-symptomatic individuals. This is in line with estimates of 48% of transmission being pre-symptomatic in Singapore and 62% in Tianjin, China and 44% in transmission pairs from various countries. Our infectiousness model suggests that the total contribution to R0 from pre-symptomatics is 0.9 …, almost enough to sustain an epidemic on its own. For SARS, the corresponding estimate was almost zero, immediately telling us that different containment strategies will be needed for COVID-19. Transmission occurring rapidly and before symptoms, as we have found, implies that the epidemic is highly unlikely to be contained by solely isolating symptomatic individuals.” (Emphasis added).
“There is a live dispute between the parties as to whether the Defendants were in breach of any of the duties alleged. The Claimants seek a remedy in respect of those alleged breaches in the form of declaratory relief and just satisfaction in the form of an acknowledgment of the wrong that they say was done to them and their fathers. It cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have not been repeated is always academic or a hypothetical exercise in the context of judicial review.”
“I also emphasise that nor will the process of determining the claim be in the nature of a public inquiry. As Mr Coppel QC accepts, the claim will stand or fall on whether the Claimants are able to establish the specific breaches of legal duties alleged rather than being a process in which the court second-guesses the decisions of the Defendants or the rights and wrongs of their actions in some more general sense.”
“2. In brief summary, Cs complain that Ds (a) decided to take steps which would introduce, or risk introducing, Covid into care homes, and (b) otherwise failed to take any or any adequate steps to prevent Covid from entering care homes (through staff, visitors and new admissions). They purportedly relied instead upon strict infection control within care homes as the principal or only means of protecting care home residents from Covid. This was, and proved to be, a wholly inadequate means of protecting care home residents in circumstances where: (1) Ds knew or ought to have known that care home residents were particularly vulnerable to serious illness and death if Covid entered their home. (2) Ds knew or ought to have known that a high proportion of care homes are unsuitable environments for, and/or lack expertise or training in, strict infection control. (3) Ds knew or ought to have known that many care homes were experiencing shortages of PPE which would inhibit them in implementing adequate infection control, and that many care homes lacked the expertise and training to use effectively such PPE as they had. (4) Ds knew that there were no reliable safeguards in place to verify whether care homes were able to provide the necessary levels of infection control. (5) Ds’ guidance to care homes– including in relation to isolation of new admissions and use of PPE – was wholly or principally reliant on a “symptoms-based approach”, and made no (or no sufficient) provision to protect against pauci-symptomatic, pre-symptomatic and true asymptomatic transmission of Covid. The Defendants knew or ought to have known that such guidance was inadequate to protect care home residents from Covid. There is evidence that the April Admissions Guidance, which wrongly advised care home operators that residents could be cared for safely provided its terms were followed, was issued with the objective of persuading care homes to accept new admissions in circumstances where they would otherwise have declined to do so because of safety concerns. (6) Covid testing was not made available for persons discharged from hospitals into care homes even where there was sufficient capacity for such tests to be conducted. (7) Ds failed to take any or any sufficient steps to reduce the movement of staff between care homes; indeed, sharing of staff between care homes was positively encouraged until the May Support Policy (on15 May 2020 ). This was a serious failing given that care home staff were an obvious source of infection and Covid testing was not first made routinely available to staff until after15 April 2020 . (8) Ds failed to take sufficient steps to restrict visitors to care homes.” (1) Ds knew or ought to have known that care home residents were particularly vulnerable to serious illness and death if Covid entered their home. (2) Ds knew or ought to have known that a high proportion of care homes are unsuitable environments for, and/or lack expertise or training in, strict infection control. (3) Ds knew or ought to have known that many care homes were experiencing shortages of PPE which would inhibit them in implementing adequate infection control, and that many care homes lacked the expertise and training to use effectively such PPE as they had. (4) Ds knew that there were no reliable safeguards in place to verify whether care homes were able to provide the necessary levels of infection control. (5) Ds’ guidance to care homes– including in relation to isolation of new admissions and use of PPE – was wholly or principally reliant on a “symptoms-based approach”, and made no (or no sufficient) provision to protect against pauci-symptomatic, pre-symptomatic and true asymptomatic transmission of Covid. The Defendants knew or ought to have known that such guidance was inadequate to protect care home residents from Covid. There is evidence that the April Admissions Guidance, which wrongly advised care home operators that residents could be cared for safely provided its terms were followed, was issued with the objective of persuading care homes to accept new admissions in circumstances where they would otherwise have declined to do so because of safety concerns. (6) Covid testing was not made available for persons discharged from hospitals into care homes even where there was sufficient capacity for such tests to be conducted. (7) Ds failed to take any or any sufficient steps to reduce the movement of staff between care homes; indeed, sharing of staff between care homes was positively encouraged until the May Support Policy (on15 May 2020 ). This was a serious failing given that care home staff were an obvious source of infection and Covid testing was not first made routinely available to staff until after15 April 2020 . (8) Ds failed to take sufficient steps to restrict visitors to care homes.”
“10. Cs’ public law claims are, in summary: (1) Failure to take into account relevant considerations, namely (a) failure to assess the risk to the lives of care home residents which would be caused by the March Discharge Policy and the April Admissions Guide, and to weigh that risk against the benefits which were perceived for these policies; (b) failure to consider adopting a policy of testing hospital discharges before admission to a care home or (at the very least) of providing that tests on discharges should be conducted wherever capacity allowed; (c) failure to consider the likelihood of transmission from persons without symptoms until mid-April 2020; (d) failure to consider the unsuitability of the care home environment for isolation and infection control. (2) Failure to conduct a sufficient enquiry, through not considering those matters, and also failing to consult expert advisors on their implications (in particular NERVTAG). (3) Taking into account irrelevant considerations, namely (a) taking into account and pursuing, by the April Admissions Guidance, the objective of overriding the legitimate concerns of care home operators for the protection of their residents, and (b) (in the case of D2), pursuing the objective of seeking to preserve for the long term what it regarded as the benefits of the March Discharge Policy (and thereby blocking measures to protect care home residents which D2 perceived to jeopardise those benefits, such as the use of NHS facilities for isolation of patients who could not be safely isolated in the care home to which they were to be discharged). (4) Irrationality, by Ds (a) adopting the March Discharge Policy without taking any additional steps to safeguard the vulnerable care home residents who would be exposed to Covid-19 infection as a result, (b) (on their factual case) deciding that it was preferable to introduce Covid-19 infection into the resident population of a care home rather than temporarily to isolate a hospital discharge in a single room with care support, (c) (on their factual case) deciding that there was insufficient risk of transmission from asymptomatic persons in case homes whilst adopting other measures – shielding, household isolation, school closures, national lockdown – which were premised on the opposite view, and (d) prioritising available testing capacity for school children, whilst not prioritising hospital discharges into the uniquely vulnerable care home population. (5) Breach of the duty of transparency, by misleading the public in stating that “from the start we’ve tried to throw a protective ring around our care homes” and “we brought in the lockdown in care homes ahead of the general lockdown”. (1) Failure to take into account relevant considerations, namely (a) failure to assess the risk to the lives of care home residents which would be caused by the March Discharge Policy and the April Admissions Guide, and to weigh that risk against the benefits which were perceived for these policies; (b) failure to consider adopting a policy of testing hospital discharges before admission to a care home or (at the very least) of providing that tests on discharges should be conducted wherever capacity allowed; (c) failure to consider the likelihood of transmission from persons without symptoms until mid-April 2020; (d) failure to consider the unsuitability of the care home environment for isolation and infection control. (2) Failure to conduct a sufficient enquiry, through not considering those matters, and also failing to consult expert advisors on their implications (in particular NERVTAG). (3) Taking into account irrelevant considerations, namely (a) taking into account and pursuing, by the April Admissions Guidance, the objective of overriding the legitimate concerns of care home operators for the protection of their residents, and (b) (in the case of D2), pursuing the objective of seeking to preserve for the long term what it regarded as the benefits of the March Discharge Policy (and thereby blocking measures to protect care home residents which D2 perceived to jeopardise those benefits, such as the use of NHS facilities for isolation of patients who could not be safely isolated in the care home to which they were to be discharged). (4) Irrationality, by Ds (a) adopting the March Discharge Policy without taking any additional steps to safeguard the vulnerable care home residents who would be exposed to Covid-19 infection as a result, (b) (on their factual case) deciding that it was preferable to introduce Covid-19 infection into the resident population of a care home rather than temporarily to isolate a hospital discharge in a single room with care support, (c) (on their factual case) deciding that there was insufficient risk of transmission from asymptomatic persons in case homes whilst adopting other measures – shielding, household isolation, school closures, national lockdown – which were premised on the opposite view, and (d) prioritising available testing capacity for school children, whilst not prioritising hospital discharges into the uniquely vulnerable care home population. (5) Breach of the duty of transparency, by misleading the public in stating that “from the start we’ve tried to throw a protective ring around our care homes” and “we brought in the lockdown in care homes ahead of the general lockdown”
“If the alleged technical error is not incontrovertible but is a matter on which there is room for reasonable divergence of expert opinion, an irrationality argument will not succeed.”
“Before I come to the issues that arise on this appeal, I need to set the scene by making a few introductory comments aboutarticle 2 of the Convention which provides: "Everyone's right to life shall be protected by law". These few words have been interpreted by the European Court of Human Rights ("the ECtHR") as imposing three distinct duties on the State: (i) a negative duty to refrain from taking life save in the exceptional circumstances described in article 2(2); (ii) a positive duty to conduct a proper and open investigation into deaths for which the State might be responsible; and (iii) a positive duty to protect life in certain circumstances. This latter positive duty contains two distinct elements. The first is a general duty on the State "to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life": see Oneryildiz v Turkey(2005) 41 EHRR 20 (para 89) applying, mutatis mutandis, what the court said in Osman v United Kingdom(2000) 29 EHRR 245 (para 115). The second is what has been called the "operational duty" which was also articulated by the court in the Osman case.”
“The question whether there has been a failure by the State to comply with its above-mentioned regulatory duties calls for a concrete rather than an abstract assessment of any alleged deficiency. The Court's task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant or the deceased gave rise to a violation of the Convention (see Lopes de Sousa Fernandes, cited above, § 188). Therefore, the mere fact that the regulatory framework may be deficient in some respects is not sufficient in itself to raise an issue underArticle 2 of the Convention . It must be shown to have operated to the patient's detriment.”
“115. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. United Kingdom judgment of9 June 1998 , Reports of Judgments and Decisions 1998-III, p. 1403, § 36). It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court thatArticle 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirements ofArticle 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2 (see, mutatis mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
"had a positive obligation underarticle 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect those individuals, especially as they themselves had set up the site and authorised its operation, which gave rise to the risk in question." "had a positive obligation underarticle 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect those individuals, especially as they themselves had set up the site and authorised its operation, which gave rise to the risk in question."
“157. The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129). 158. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90). 159. Among these preventive measures particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ). 160. As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35). 161. In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).”
“59. It is not the Court’s task to substitute itself for the competent domestic authorities in determining the best policy to adopt in dealing with problems of public health and safety such as the issue of stray dogs in Romania. In that connection it accepts that an impossible or disproportionate burden must not be imposed on the authorities without consideration being given in particular to the operational choices which they must make in terms of priorities and resources (see Osman cited above, § 116, and Hajduová v. Slovakia, no. 2660/03, § 47,30 November 2010 ); this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult spheres such as the one in issue in the instant case (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 100-101, ECHR 2003-VIII, and Oneryildiz cited above, § 107). In assessing compliance with Article 8, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”
“188. For the Court’s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015 and the cases cited therein). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue underArticle 2 of the Convention . It must be shown to have operated to the patient’s detriment (compare and contrast Z v. Poland, cited above, §§ 110-12, and Arskaya, cited above, §§ 84-91). 189. It must, moreover, be emphasised that the State’s obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement. 190. On the basis of this broader understanding of the State’s obligation to provide a regulatory framework, the Court has accepted that, in the very exceptional circumstances described below, the responsibility of the State under the substantive limb ofArticle 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers. 191. The first type of exceptional circumstances concerns a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment (see, for example, Mehmet Şentürk and Bekir Şentürk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment. 192. The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger (see, for example, Asiye Genç and Aydoğdu, both cited above). 193. The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient’s death. 194. However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104). 195. Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly (see, in particular, Aydoğdu, cited above, § 87, and, by contrast, Eugenia Lazăr, cited above, §§ 69-70). 196. Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above (see paragraph 189 above and, for example, Mehmet Şentürk and Bekir Şentürk, cited above, § 96, and Aydoğdu, cited above, §§ 87-88).” (Emphasis added)
“121. The Court therefore takes it as established that the public authorities, at several levels, had exact knowledge of the reality of the danger as regards the state of health of the children living in the Dzhurkovo home. The Court notes that the headmistress had incessantly pointed out the seriousness of the living conditions and the difficulty of providing the children with the necessary care, and called for the help of numerous public or humanitarian structures (see paragraphs 32-37 above). The Court therefore takes it as established that the public authorities, at several levels, had exact knowledge of the reality of the danger as regards the state of health of the children living in the Dzhurkovo home. Moreover, at that time the mortality rate in the home was considerably higher than usual (see paragraph 59 above). 122. It should then be noted that - and this is a crucial element in the case - the occurrence of the tragic events was not sudden, one-off and unforeseen, as in the case of an event of force majeure to which the State might not be able to cope. The cases of death followed one another and the drama of the home was thus spread over time. Indeed, fifteen children and young adults, seven of whom were the children of the applicants, died between15 December 1996 and14 March 1997 , that is to say during a period of approximately three months. This element should have seemed suspicious at the very least and required an explanation.”
"82. The court observes at the outset that article 2 imposes both negative and positive obligations on the State. The negative obligation prohibits the intentional and unlawful taking of life by agents of the state. The positive obligation . . . requires that they take appropriate steps to safeguard the lives of those within their jurisdiction (see LCB v United Kingdom(1999) 27 EHRR 212 , para 36; and Edwards v United Kingdom(2002) 35 EHRR 19 , para 54). This implies, in appropriate circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk. Although the court originally explained that this positive obligation arose when there was a risk to life 'from the criminal acts of another individual' (see Osman v United Kingdom(2000) 29 EHRR 245 at para 115), it has since made it clear the positive obligations under article 2 are engaged in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryildiz v Turkey(2005) 41 EHRR 20 , para 71). 83. For the court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising."
“97. Such broad statements of principle are hard to interpret and even harder to apply. It is tempting for a common lawyer to treat them as if they were Lord Atkin's statement of the neighbour principle in Donoghue v Stevenson[1932] AC 562 , p 580: the duty arises in the circumstances explained in para 82 of Watts and is breached in the circumstances explained in para 83. But is the court in fact laying down a broad principle that, in the context of any public or private activity in which the right to life may be at stake, the State has a duty, if the authorities know or ought to know of a real and immediate risk to the life of a particular individual, to take such measures as might reasonably be expected of them to avoid that risk? 98. This is certainly how the decision in Mrs Watts' case reads. Mrs Watts was complaining that the local authority's decision to close the care home in which she had lived for five years violated this duty because it put her life at risk. The court accepted that the badly managed transfer of elderly residents could have a negative impact on their life expectancy and thus that article 2 was "engaged" (para 88). However, what the authorities had to do about it would depend upon the extent of the risk, on which in that case the evidence was equivocal. Bearing in mind the choices which had to be made by the authorities in providing residential care for the elderly and the careful steps which had been taken to minimise any risk to this applicant's life, the authorities had met their positive obligations in that case (para 92). 99. On the other hand, is the reference to "in appropriate circumstances" (in Watts, para 82, among others) designed to set limits to the situations in which the operational duty can even arise? After all, in Mrs Watts' case, the activity which gave rise to the risk to life – moving the elderly residents out of their home - was one in which the authorities were themselves engaged. In that respect, it is like the case of Öneryildiz v Turkey, cited by the court for the broader proposition, where the authorities were responsible for the municipal rubbish tip which endangered the lives of local residents. Another example where the duty not only arose but was violated is Branko Tomašic and Others v Croatia, Application No 46598/06,15 January 2009 . Shortly after his release from prison a man shot dead his former co-habitant, their child and himself. The risk to life was well known to the authorities when they released him from prison, but he had received no adequate psychiatric treatment while inside and there was no power to detain him for treatment after his sentence expired. They had not, therefore, done all that could reasonably be expected to guard against the risk. In the context of state activities constituting a risk to life, therefore, the court may have reached the point where the operational duty is engaged, but the circumstances will be carefully scrutinised to see what, reasonably, the authorities could be expected to do about it, bearing in mind the gravity of the risk and the problems they face in responding to it.”
“72. The Divisional Court was right to identify the unifying feature of the application of the operational obligation or duty to protect life as one of State responsibility. That, for example, is the theme which emerges from the Strasbourg authorities discussed in Tyrell and supports the conclusion that the article 2 procedural obligation does not apply to cases of deaths in custody arising from natural causes. In both Nencheva and Câmpeanu….….the substantive article 2 duty owed to the people concerned was to protect from a type of harm entirely within the control of those who cared for them. They were in the institutions to be cared for. In Nencheva the Bulgarian State was in breach of its positive obligation for failing to take prompt action to protect the lives of young people in a residential care home where 15 disabled children died. The authorities were aware of the appalling conditions in the care home and of an increased mortality rate (paras 121-123). In Câmpeanu, the Grand Chamber concluded that the domestic authorities knew that the facility in which the deceased was kept lacked proper heating and food, had a shortage of medical staff and resources and inadequate supplies of medication. That led to an increased mortality rate…” 73. Both the prison cases and those concerning conditions within an institution where vulnerable people are cared for demonstrate that the article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care. It cannot be supposed that if a child in a care home or an adult in a position such as Mr Câmpeanu had suffered an isolated medical emergency that the substantive obligation would have applied to the manner in which that was dealt with. The reasoning of the Strasbourg Court which supported the imposition of the operational duty would not apply.”
“96. The question whether an operational duty under article 2 was owed to Jackie is not an abstract one which delivers a "yes" or "no" answer in all circumstances. She was a vulnerable adult incapable of looking after herself and lacking capacity to make decisions about her care. As the decisions of the Strasbourg Court in Nencheva and Câmpeanu show, the article 2 operational duty is owed to vulnerable people under the care of the state for some purposes. If a death in this jurisdiction in a hospital or care home for which the state was responsible resulted from conditions described in either of those cases, the substantive or operational duty underarticle 2 ECHR would be engaged. So too if the state was aware of the shortcomings, through regulatory inspections, and did not act on them. There would be a direct analogy in the latter situation with the failure of social services to protect children over a prolonged period when they knew of serious abuse (Z v. United Kingdom discussed in para. 46 above). The potential application of the operational duty discussed in Watts v. United Kingdom (see para. 45 above) when moving vulnerable elderly people from one home to another on account of the exceptional risk involved is another example of the operational duty arising within a defined area of activity. 97. The approach illuminated by those cases (and the prison cases) does not support a conclusion that for all purposes an operational duty is owed to those in a vulnerable position in care homes, which then spawns the distinct procedural obligation (with all its components) in the event of a death which follows either alleged failures or inadequate interventions by medical professionals. On the contrary, as Dumpe most clearly demonstrates, it is necessary to consider the scope of any operational duty. Had Mr Dumpe's death followed ill-treatment or neglect of the sort considered by the Strasbourg Court in Nencheva and Câmpeanu the position would have been different. The circumstances of the death would be judged by reference to the operational duty.”
“65. I derive three important and related points from this analysis. First, the existence or otherwise of the operational duty is not to be analysed solely by reference to the relationship between the state and the individual, but also, and importantly, by reference to the type of harm of which the individual is foreseeably at real and immediate risk. This follows from the operational duty to protect life having the unifying feature of being one of state responsibility, and the need to focus on the scope of the duty which may be owed. There may be an operational duty to protect against some hazards but not others.” 66. Secondly, the foreseeable real and immediate risk of the type of harm in question is a necessary condition of the existence of the duty, not merely relevant to breach. Without identifying such foreseeable risk of the type of harm involved, it is impossible to answer the question whether there is an operational duty to take steps to prevent it. 67. Thirdly, in cases where vulnerable people are cared for by an institution which exercises some control over them, the question whether an operational duty is owed to protect them from a foreseeable risk of a particular type of harm is informed by whether the nature of the control is linked to the nature of the harm. A prison's control over its inmates gives rise to an obligation to protect its detainees against suicide risks because, as Baroness Hale observed in Rabone, the very fact of incarceration increases such a risk. The control is linked to the risk. So too in the case of detained mental patients, where the detention gives rise to the increased risk of suicide whatever the nature of the mental condition being treated………Where, however, there is no link between the control and the type of harm, to impose an operational duty to protect against the risk would be to divorce the duty from its underlying justification as one linked to state responsibility. It would also undermine the requirement identified in Osman that the positive obligations inherent in article 2 should not be interpreted so as to impose a disproportionate burden on a state's authorities. The control by the state could not justify the imposition of the duty by reference to state responsibility if the risk were of a type of harm which is unconnected to the control which the state has assumed over the individual. A psychiatric hospital owes no duty to protect a patient, whether voluntary or detained, from the risk of accidental death from a road traffic accident whilst on unescorted leave.”
“54. It is of course possible that the European court may choose to develop its jurisprudence in this way, if a suitable case comes before it. But it is not the function of this court to undertake a development of the Convention law of such a substantial nature. The general approach to be adopted by domestic courts applying the Human Rights Act was explained by Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator[2004] UKHL 26 ;[2004] 2 AC 323 , para 20 (“Ullah”), expressing the unanimous view of the House. As he said, the House had previously held that “courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”
“I would respectfully suggest that last sentence could as well have ended: ‘no less, but certainly no more’. There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg.” 57. As Lord Brown explained, the intended aim of the Human Rights Act - to enable the rights and remedies available in Strasbourg also to be asserted and enforced by domestic courts - is particularly at risk of being undermined if domestic courts take the protection of Convention rights further than they can be fully confident that the European court would go. If domestic courts take a conservative approach, it is always open to the person concerned to make an application to the European court. If it is persuaded to modify its existing approach, then the individual will obtain a remedy, and the domestic courts are likely to follow the new approach when the issue next comes before them. But if domestic courts go further than they can be fully confident that the European court would go, and the European court would not in fact go so far, then the public authority involved has no right to apply to Strasbourg, and the error made by the domestic courts will remain uncorrected. 58. The approach to this issue laid down in Ullah, Denbigh High School and Al-Skeini has been repeatedly endorsed at the highest level. For example, in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport[2008] UKHL 15 ;[2008] AC 1312 , Baroness Hale of Richmond stated at para 53: “The Human Rights Act 1998 gives effect to the Convention rights in our domestic law. To that extent they are domestic rights for which domestic remedies are prescribed: In re McKerr[2004] 1 WLR 807 . But the rights are those defined in the Convention, the correct interpretation of which lies ultimately with Strasbourg: R (Ullah) v Special Adjudicator[2004] 2 AC 323 , para 20. Our task is to keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less: R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening)[2008] 1 AC 153 , para 106.”
“Where, however, there is a clear and constant line of decisions [of the European court] whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.”
“Lord Bingham’s point [in Ullah, para 20] was that Parliament never intended by enacting theHuman Rights Act 1998 to give the courts of this country the power to give a more generous scope to the Convention rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the Treaty obligation, into free-standing rights of the court’s own creation.” 59. It follows from these authorities that it is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the European court, they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law. Indeed, that is the exercise which the High Court and the Court of Appeal undertook in the present case. The application of the Convention by our domestic courts, in such circumstances, will be based on the principles established by the European court, even if some incremental development may be involved. That approach is discussed, for example, in Rabone v Pennine Care NHS Trust (INQUEST intervening)[2012] UKSC 2 ;[2012] 2 AC 72 , paras 112 and 121, Surrey County Council v P[2014] UKSC 19 ;[2014] AC 896 , para 62, Kennedy v Charity Commission[2014] UKSC 20 ;[2015] AC 455 , paras 145-148, and Moohan v Lord Advocate (Advocate General for Scotland intervening)[2014] UKSC 67 ;[2015] AC 901 , para 13.” “The Human Rights Act 1998 gives effect to the Convention rights in our domestic law. To that extent they are domestic rights for which domestic remedies are prescribed: In re McKerr[2004] 1 WLR 807 . But the rights are those defined in the Convention, the correct interpretation of which lies ultimately with Strasbourg: R (Ullah) v Special Adjudicator[2004] 2 AC 323 , para 20. Our task is to keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less: R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening)[2008] 1 AC 153 , para 106.”
“COVID-19 is a virulent and dangerous disease, but the risk to life which it presents was not created, nor disproportionately increased, by the March Hospital Discharge Policy”
"A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
"174. [T]hose principles were set out by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)[2014] Eq LR 60 , para 26. It is unnecessary to set out that passage in full here. It is well known and has frequently been cited with approval since, including in Hotak v Southwark London Borough Council[2016] AC 811 , para 73 (Lord Neuberger PSC). 175. In that summary McCombe LJ referred to earlier important decisions, including those of the Divisional Court in R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)[2009] PTSR 1506 , in which the judgment was given by Aikens LJ; and R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] HRLR 13, in which the judgment was given by Elias LJ. For present purposes we would emphasise the following principles, which were set out in McCombe LJ's summary in Bracking and are supported by the earlier authorities: (1) The PSED must be fulfilled before and at the time when a particular policy is being considered. (2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes. (3) The duty is non-delegable. (4) The duty is a continuing one. (5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. (6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision."
“Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed. If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.”