There has been significant focus in the media in the last few months on the effect of COVID-19 on the care sector and in particular the lack of PPE available, especially at the outset of the COVID-19 pandemic.
A recent report by the Healthcare Safety Investigation Branch (HSIB) has highlighted confusing governmental guidance on whether home care carers should wear PPE or not. The HSIB investigates patient safety in NHS funded care. The HSIB report notes that the primary guidance produced by Public Health England on 6 April 2020 did not mention the need to wear PPE when caring for an “extremely clinically vulnerable” client. Further guidance produced after the report did mention the need to wear PPE but the primary domiciliary care guidance was not updated until 13 May 2020 to confirm that PPE should be worn when visiting extremely clinically vulnerable clients.
The HSIB investigations was prompted by contact from a member of the public regarding an extremely clinically vulnerable person who received care from domiciliary care workers, and later died of COVID-19. The domiciliary care workers did not wear PPE. The HSIB report does not directly blame the lack of PPE for the client’s death, but the implication is certainly there.
So what is the implication of this report for potential claims? Domiciliary care businesses will be able to argue that the official government guidance was confusing and contradictory until mid May 2020. However, past case law concerning PPE and employers’ liability claims has highlighted the fact that employers should stay “ahead of the curve” and not just rely upon official governmental guidance. It remains to be seen whether such arguments will be raised in any future civil litigation particularly concerning the death of any client.