In our previous blog piece dated 24 April 2020, we touched upon the various COVID-19 problems that the care sector is currently facing. We set out that as official figures on care home COVID-19 deaths only began on 9 April 2020, it would take time to know the full extent of this crisis. In an effort to gain better transparency on this issue, the CQC and ONS have now joined forces to release its first set of official figures.
The figures are based upon COVID-19 death notifications sent to the CQC by registered care providers. Based upon these figures, it would appear that whilst COVID-19 deaths in hospitals are reportedly starting to fall, the same cannot be said for care homes. In stark contrast, the CQC figures revealed that there were a total of 4,343 deaths involving COVID-19 in care homes between 10 April 2020 and 24 April 2020.
To give a better perspective of this number, care homes house less than 1% of the country’s population but despite this, the number of COVID-19 deaths in care homes now equate to nearly a sixth of all COVID-19 deaths in England and Wales.
What could this mean for future claims?
Worryingly, the overall number of people dying in care homes is now three times higher than it was before the pandemic started. Even, prior to the COVID-19 crisis there were growing concerns around staffing levels in care homes staff and this is even more pertinent now. This together with a reported lack of PPE may be part of the reason for the high level of deaths in this high risk group.
Clearly there is the potential that families of the deceased residents may seek to bring negligence claims on the basis that better protective measures should have been in place to minimise the risk of harm to these vulnerable residents.
Should a legal claim be brought, then the standard of care applied by the court will be that of an ordinary and competent care provider in that field. It will need to be established that the care received by the resident fell below the standard that one was reasonably entitled to expect.
When looking at whether this standard of care is reasonable, the court will doubtless have regard to the COVID-19 policies in place at the care home in question and this could mean that some latitude will be afforded to care providers in light of the strain on resources in this crisis situation. Equally, however, the court may adopt a strict approach to take into account care home residents high level of vulnerability and that proper safeguards should have been in place to minimise their increased risk of harm.
However, should it be found that the standard of care was not provided at a reasonable level then claimants will also need to prove causation of the injury on the balance of probabilities.
Residents in care homes frequently have several co morbidities and it may be the case that even if there was a breach of the care home’s duty of care, the outcome (e.g. death), would have occurred irrespective of this negligence.
In any event, it will be interesting to see what claims and challenges do arise as a result of these uncertain times and approach the Court will take in light of the strain on care providers caring for this very high risk population. In the meantime those working in care homes would be well advised to document their interventions and the difficulties encountered very carefully.
Written by Lucy Buckingham, trainee solicitor at BLM