Social care reform, deaths in care and the pandemic

The Queen’s speech was delivered to both Houses of Parliament on 11 May 2021 with a focus upon protecting the health of the nation and economic growth. Criticism has been made however, of the lack of a concrete commitment to address the long-standing funding issues that have plagued the care sector with a brief mention only made within the speech that “proposals on social care reform will be brought forward”.  This appears to follow a lack of agreement between No 10 and the Treasury regarding a strategy to limit the amounts pensioners have to pay towards their own care. 

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Care home visits: where do you stand?

From 12 April 2021 new guidance was brought in by the Government on care home visiting. It applies to care homes for working age and for older adults in England.

Every care home resident can nominate up to two named visitors who can enter for regular visits and those visitors are to be subject to rapid lateral flow testing before each visit. The visitors are also required to wear PPE and follow infection control measures whilst in the home. Physical contact is to be kept to a minimum.

Whilst this guidance is a change from the guidance in place prior to 12 April 2021, the Joint Committee on Human Rights (JCHR) questioned whether the care homes regulator, the Care Quality Commission has sufficient awareness of compliance with visiting guidance and, in fact, has gone as far as suggesting that the CQC has had an ‘astonishing’ lack of awareness on compliance following the JCHR’s own investigations into compliance.

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Further developments in non-delegable duty of care & vicarious liability

On 19 April 2020 HHJ Harrison in the County Court at Cardiff handed down judgment in the case of Breakingbury v Croad (unreported) 2021. Whilst the case concerns the provision of allegedly negligent dental care to the claimant, the trial of preliminary issues focussed on whether the dental practice owner, Mr Croad, owed a non-delegable duty of care to his practice’s patient, (the claimant) and/or whether, as owner of the dental surgery he was vicariously liable for the actions of the Associate dentists he engaged to perform NHS dentistry at the surgery.

The judge’s conclusions were surprising to many and have stimulated much discussion within dental forums and amongst insurers of those providing dental services.

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What is the appropriate measure of diffidence/deference to be accorded to the MPT?

Dr Sastry & Dr Okpara v GMC [2021] EWCA Civ 623

Both Dr Sastry and Dr Okpara appealed against decisions by the Medical Practitioners Tribunal (MPT) to erase their names from the register. Both appeals were dismissed at first instance as the High Court on each occasion was reluctant to interfere with the original tribunal’s decision.

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Time to prioritise the mental health of our care workers?

As the pandemic continues, more statistics are coming to light in respect of the wider impact COVID-19 has had, not least on the mental health of frontline care workers. A survey undertaken by the trade union GMB found that 75% of care workers said that their work during this pandemic has led to their mental health being negatively affected. The survey found that many felt their mental health had declined during the second wave of the pandemic, with whose who were only entitled to statutory sick pay reporting lower mental health scores. 

The Worldwide Health Organisation (WHO) Regional Office for Europe recently produced a short film with healthcare workers discussing the impact the pandemic has had on their mental health, as well as the challenges they have faced, whilst providing care throughout for their patients. The main mental health consequences raised were loneliness, elevated stress levels or anxiety, insomnia and depression. There is no doubt that those providing frontline care throughout, have borne the brunt of the pandemic. Care workers have continued to provide care and support to their patients and the wider public throughout the pandemic, bravely facing the challenges this has thrown at them. 

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Government partially amends Coronavirus Act 2020 easements

We wrote this time last year about the introduction of easements to the 2014 Care Act via the Coronavirus Act 2020 (see here).  These easements allowed local authorities not to carry out certain duties placed up on them by the 2014 Act if the workforce was significantly depleted due to the pandemic or Care Act duties could not be met due to demand. 

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Care homes vaccinations consultation

Government launches consultation on staff COVID-19 vaccines in care homes with older adult residents.

A five-week consultation has been launched in a bid to further protect care home residents who are among the most vulnerable to COVID-19. The consultation is seeking views from staff, care home providers, stakeholder, residents and their families on a proposal to make vaccines compulsory, by making it a condition of employment for all staff who are deployed in care homes with older residents.

In practice and in order to achieve this, the Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which would mean that older adult care homes could legally only deploy staff who have received the COVID-19 vaccination, unless they are exempt for medical reasons. It appears that cultural or religious objections to the vaccines will not be exempt.

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Towuaghantse v GMC & the importance of seeking early advice in inquest proceedings

In the recent case of Towuaghantse v GMC, Dr Towuaghantse sought to argue that the critical narrative conclusion of a Coroner could not be adduced in evidence against him before his regulator. That the findings of fact made by the Coroner could be adduced was not in dispute.

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Regulatory Reform – the wheels are in motion

On 24 March 2021 the Department of Health and Social Care published an open consultation “Regulating Health Care Professionals, Protecting the Public“.  The consultation is set to run until 16 June 2021.

The consultation has been keenly awaited and follows the Government response of July 2019 to a consultation run in 2017.  Whilst change has been delayed owing to issues such as Brexit and, of course, the pandemic, it seems we are edging closer to reform of professional regulation.

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CQC publishes report “Protect, respect, connect – decisions about living and dying well during COVID-19”

The CQC has completed its review of  ‘do not attempt cardiopulmonary resuscitation’ decisions during the coronavirus (COVID-19) pandemic and has published its findings on 18 March 2021 CQC report – Protect, respect, connect. It has, rightly, received much publicity which will hopefully mean that the recommendations contained in the report will be followed.

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