The government has successfully resisted the disclosure of potentially explosive WhatsApp messages between ministers and Boris Johnson over decisions to send hospital patients to care homes without first testing them for Covid.
Two bereaved women whose fathers died of Covid in nursing homes that received infected NHS patients in April and May 2020 have asked the High Court to force the disclosure of the texts, as well as emails sent from a private account by then Health Secretary Matt Hancock.
But Judge Eady ruled that the government did not need to provide them with evidence for a judicial review of the legality of the government nursing home policy.
Returning hospital patients to nursing homes without testing has caused “thousands, if not tens of thousands of unnecessary deaths,” the bereaved argued.
Dr Cathy Gardner, one of the women who claims the nursing home policy violated human rights laws and discriminated against the elderly and disabled, called it ” very disappointing ”the decision to block the publication of potentially“ very important ”informal communications. They are considering recourse.
Dominic Cummings, the former aide to the Prime Minister, has previously posted snippets of WhatsApp messages with the Prime Minister about Hancock, including one where Johnson described Hancock’s testing strategy as “utterly desperate.”
Lawyers for Gardner and his colleague, Faye Harris, said crucial advice “came through informal channels, text messages, WhatsApps, personal emails.” Without its disclosure, the truth about what the government knew about the risks of landfill would remain hidden, they said.
Government lawyers argued that the extensive disclosure requests amounted to an attempt to conduct a public inquiry through the courts.
Sir James Eadie QC called the informal messages “gossip” and said they were “unlikely [to] contain relevant elements ”.
The court also ruled that the government did not need to release the minutes of a meeting between the Prime Minister and Hancock at which, Cummings told MPs in May, the health secretary promised that the patients would be tested before being sent back to homes. Hancock later denied this, saying he was instead committed to increasing testing capacity.
The bereaved also wanted to see advice from England’s chief medical officer, Chris Whitty, and chief scientific adviser, Sir Patrick Vallance, to ministers on protecting care homes, as well as evidence of what was known on the risk of asymptomatic transmission and the limitations of capacity testing.
The decision comes as the British government is under increasing pressure to announce the mandate of the public inquiry, after the Scottish government said on Tuesday that it would be established by the end of the year.
The Covid-19 Bereaved Families for Justice group, which represents more than 4,000 bereaved families, is separately researching Hancock’s private emails under the Freedom of Information Act and a response to his request is several weeks overdue. On Thursday, the group marked a year of waiting since Johnson announced he would meet with the families.
A government spokesperson said: “As the Prime Minister said, we are committed to a full public inquiry which will begin in the spring. The terms of reference will be defined in time for the start of the investigation, and we will consult with bereaved families and others before they are finalized.