Protecting the vulnerable in the midst of COVID-19

Our recent blogs have consistently focused on this developing saga as COVID-19 continues and as we as a nation compare ourselves to our counterparts, we are increasingly coming up short.  There is a stark message coming through that our most vulnerable have been forgotten: the elderly in care homes, the detained in mental health units and those with learning disabilities.

The ‘protect the NHS’ message seems to overlook the vulnerable and elderly in care homes, the very demographic that is most likely to be hit by COVID-19.  Patients with COVID-19 have been discharged to care homes to protect the NHS, putting lives at risk and enormous strain on an already overstretched service, with some councils threatening to withdraw funding if care homes do not take COVID-19 patients.

A lockdown of care homes was suggested by Public Health England last month, but refused by the government. The death toll for care homes is rising, and estimated to be around 16,000 (compared to zero in Hong Kong, and 3,000 in Germany).

The NHS has been the priority for PPE, and whilst Matt Hancock (Secretary of State for Health) has stated that it is for private care homes to buy their own PPE, one wonders how this is possible when the government seizes shipments of PPE destined for care homes, and diverts it to the NHS.

So how is the CQC protecting the vulnerable in this crisis?

In March this year, the CQC suspended routine inspections in response to the COVID-19 crisis.   The decision was taken in order to focus on more urgent safety matters, and to protect staff.

There has been particular concern regarding the suspension of inspections of mental health units, care homes and homes supporting people with learning disabilities. Some argue that CQC inspections have never been more needed.  The death toll for care homes is shocking, and the statistics are also poor for mental health patients.  From 1 March, 56 detained patients have died from either suspected or confirmed Coronavirus.

Many charities are arguing that the CQC is neglecting the most vulnerable in society, the very people it was set up to protect.   As a result, eleven organisations (including Right for Lives and Learn Disability England) have written to the CQC raising their concerns.  The letter claims that the CQC is in breach of its statutory duties under the Human Rights Act 1998, the Health & Social Care Act 2008 and the Equality Act 2010.

The CQC (through its Chief Executive, Ian Trenholm) states that it is maintaining its role during the pandemic, using its powers to inspect and respond to whistleblowing concerns. However, many families are scared of what may be going on behind closed doors in these high risk environments.  With the government and the CQC pre-occupied, it is being left to individual care homes to respond to the crisis as they see fit.

The focus continues to be on COVID-19 deaths but less is clear on the deaths caused indirectly by the impact of COVID-19. Reports over the weekend that residents with dementia have suffered as a result of the inability to see their families.

In addition we know little about the impact of contracting COVID-19 and recovering and the potential short or long term health consequences as a result.

In due course, the government’s response to COVID-19 will undoubtedly be the subject of the largest public inquiry since the Iraq war, and it seems likely that the guidance, regulation and support provided to care homes during this crisis will be an area of significant focus.

With reports that some care providers may refuse to pay their registrations fees to the CQC clearly the CQC and their role in looking after the vulnerable will be central to any enquiry.

What this may mean for claims from the families of “the vulnerable “ will no doubt form part of any claims investigation.

Ella Partner, Associate, BLM and Michelle Penn, Partner, BLM

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