The Prime Minister this week announced the end to the majority of COVID restrictions in England There will no longer be any legal requirement to self isolate and the availability of free PCR and lateral flow tests will be significantly reduced.
What will be the effect on the social care sector?
The primary issue for the social care sector is what risk control measures are they still required to undertake in order to manage the risk of COVID-19 now that the government has relaxed measures? Where you have a vulnerable population there is still the very real risk of injury from COVID-19, despite vaccinations. In order for care providers to satisfy their duty of care both in common law and under the Health & Safety at Work Act, including the regulations that stem from the Act, they are required to risk assess and implement suitable control measures. This may mean that, in some circumstances, (i) the use of face masks are still required, (ii) there is a need to enforce strict isolation periods for residents/staff to prevent outbreaks, (iii) ensuring regular testing.
The care sector is put in a very difficult position where it is expected to manage and control the risk of COVID without any guidance or restrictions from the government. The absence of such guidance may impact the culture within care homes whereby employees, visitors, contractors and residents are less inclined to follow best practice.
The position with testing
Free testing will also no longer be available for asymptomatic staff or visitors. Free testing will remain available for some groups such as people over 80, those with compromised immune systems and NHS/care staff with symptoms of COVID-19, although the precise details of who will be able to access this free testing has not yet been confirmed.
Presently health and social care staff must carry out bi-weekly lateral flow testing and this has been key to identifying COVID-19 outbreaks at an early stage and protecting vulnerable service users. In addition, visitors to care homes are asked generally to take a lateral flow test before entering the home. Concerns have been raised by various charities and bodies that this will effectively force clinically vulnerable people back into self isolation. There will be no restrictions in law on visiting care homes, and it will be up to each home as to how they manage infection control and visitors. Visitors to care homes will not be entitled to free testing. It would of course be up to visitors to pay for tests themselves or care homes to fund tests, but this is likely to be costly with Boots quoting a price of £6 for one test.
Whilst the Omicron variant was largely not as catastrophic as feared, it is unclear whether any future more severe variants might emerge and what the effect of the end of restrictions is going to mean. As well as the end of free testing, self isolation will no longer be mandatory in England. Will care home staff who have suspected COVID-19 or have been in contact with someone with the virus still be expected to come into work? There will be no legal restriction on someone who has confirmed (or suspected) COVID-19 visiting a care home either in a personal or professional context. The end of self isolation could certainly contribute to outbreaks of COVID-19 especially in the care home setting where residents will be vulnerable.
There also is no official guidance available at present on what the social care sector should do in terms of PPE and infection control – should for example face masks continue to be worn by staff?
Across the UK and the future of claims
The easing of restrictions is being approached differently across the devolved nations. Wales and Scotland have opted for a gradual approach to easing restrictions and at present have not ruled out removing free testing although the Welsh government has said that the Westminster government’s end to free testing means it will no longer be able to fund this. In Northern Ireland all legal restrictions were revoked on 15 February.
In respect of the social care sector across the UK, operators will need to carefully consider how best to manage and risk assess the risk of COVID-19 for service users, staff and visitors. If outbreaks do occur and the risk has not been properly managed or assessed, then we do consider there is the potential for civil claims and/or statutory investigations. In claims we have dealt with so far, a defence available has been that the service provider was following government guidance. However, it’s unclear whether this defence can realistically be argued going forward given all the uncertainty raised over the end of restrictions.
Authored by Jennifer Johnston, Associate, and Edward Sainsbury, Partner, BLM
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