Falls and COVID-19

Falls are often the subject of civil litigation or statutory investigation in the social care sphere, in particular when dealing with elderly residents.   We often see claims for falls arising from differing scenarios.  A fall may occur in a residential home setting or at home, whether there is domiciliary care involved or not.  A fall can lead to various serious consequences for the elderly such as a stay in hospital which may cause a decline in a person’s general health, increase the risk of contracting infections, decline in physical abilities and acceleration of the onset of dementia.  And a person’s care requirements are likely to be increased by the fall – for example residential care may be required where it was not previously. 

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Can employers force frontline carers to be vaccinated?

In the last few weeks we have seen a number of well known care providers introducing new policies, whereby new staff will be required to have the COVID vaccine prior to starting work. Some care providers have gone as far as requiring current care staff to be vaccinated, unless they are unable to on medical grounds. Some care providers have seemingly made it clear that if staff members refuse, purely out of choice, then this will make them ‘unavailable to work’ within frontline care settings. It seems that this decision has been made, amid concerns over the uptake of the vaccine amongst care workers across the UK.

No doubt, these decisions have been made to ensure the protection of those being cared for, as well as for staff members. However, with more care providers deciding to take this step, the question is now whether this raises employment concerns, for discrimination and unfair dismissal, amongst other things.

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No-fault compensation – could it work in the UK?

Early this month the Health Minister Nadine Dorries told the Health and Social Care Committee that a no fault compensation system is under review and could involve all claims against the NHS. Her comments were made to the Select Committee which is looking at the safety of maternity services in England following issues arising at Shrewsbury and Telford and East Kent NHS Trusts.

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The health and care white paper and a vision for healthcare regulation

Today will see the publication of the white paper said to revolutionise the health and care systems in the UK. Despite the health service struggling in the midst of a pandemic, the Heath Secretary confirms that now is “absolutely the time” to reform the NHS, intending to “reduce bureaucracy, to sweep away the legal barriers to the NHS delivering and integrate the NHS with social care…”.

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The effect of Brexit on the care sector

Since the new EU/UK trade agreement took effect on 1 January 2021, the free movement of labour between UK and the European Economic Area (EEA) has ceased.  Workers arriving from the EU are now subject to the same points based system as workers arriving from non-EEA countries. The system affords exceptions for most NHS workers, however carers in adult social care are not included. This places an additional obstacle for carers wanting to work from the EU to overcome.  

84% of the workforce in adult social care in England is British. 16% is non-British, of this 7% (113,000 jobs) are from EEA countries and 9 % (134,000 jobs) are from non-EEA countries [i].Prior to Brexit, charities such as Age UK and The Care Workers’ Charity wrote about their concerns for the sustainability of staffing within the care sector.  There is a chronic shortage of workers, ONS figures reveal that the adult social care workforce has a (high) vacancy rate of around 8% (equating to 110,000 vacancies)[ii]. Approximately 130,000 new care workers are required each year for social care alone to cope with current levels of demand.  Recruitment and retention for staff in the care sector is hard, with many staff leaving within the first year and the public perception of poor working conditions has led to low recruitment rates.

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CQC investigates care homes staff working with COVID-19

The recent staff shortages in care homes have been well documented.  The pandemic has meant staff have increasingly had to self isolate and have suffered sickness themselves, causing an intolerably high increase in absence across the sector. What has come to light more recently however,  is that the CQC is investigating concerns that staff with COVID-19 have  been asked to come into work, even after a COVID-19 positive test result.

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Update on the potential impact of carers refusing vaccination

In our previous blog of 17 December, we considered the potential employment law implications for care homes where staff refuse to be vaccinated against COVID-19.  The vaccination programme is now picking up pace across the country, with the Government announcing earlier in the week that more than 4 million people had received their first dose. However, the daily figures for COVID-19 related deaths reached a peak of 1,820 on Wednesday, amid serious concerns that the vaccination programme is not being carried out quickly enough to stop the increasing number of deaths in care homes in recent weeks.  

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Discharge of hospital patients who test positive for COVID-19 to care homes – will Designated Settings make an impact?

As was highlighted in this blog, the Vaccines Minister Nadhim Zahawi has announced a ‘targeted and time limited state backed indemnity’ for care homes which are registered as Designated Settings or intending to register as a Designated Setting, and which are unable to obtain commercial insurance. The question is, will this relatively short-term move have the impact that is needed right now to protect the NHS and care sector?

So what is a Designated Setting?  
It is essentially a care home which has applied and been assessed by the Care Quality Commission (CQC) as an appropriate setting to care for COVID-19 positive patients who are discharged from the NHS and who no longer require an acute hospital bed. The objective is of course to relieve pressure on the NHS as it copes with the winter crisis.

The aim is that there is at least one Designated Setting in each local authority ‘as soon as possible’.

How are the care homes assessed?
The care homes are assessed by the CQC using its Infection Prevention and Control framework (IPC). Assessments are made to ensure patients are being physically separated, that there is a dedicated workforce and appropriate emphasis on ventilation.

The CQC is using an ‘eight ticks‘ approach in order to give the public an overview as to factors such as the availability of adequate PPE, that staff are properly trained to deal with outbreaks and the appropriate processes needed, that shielding is being complied with and hygiene practice is promoted.

How many Designated Settings are there currently?
As at 12 January there were 135 approved Designated Settings providing a total of 1,624 approved beds. The coverage across the country is however currently variable – there are only 87 approved beds for instance in London, but 381 in Yorkshire and the Humber.

Testing of CQC inspectors
Up until now CQC inspectors were not tested for COVID which was a source of concern for many. It is now proposed that inspectors will be tested weekly with the testing being rolled out in the coming weeks. It is not clear however why there is to be a delay since care home staff are already being regularly tested.

What is the state indemnity scheme going to cover?
The indemnity will cover claims for clinical negligence and employers’ and public liability where the care home provider operating a Designated Setting has been unable to secure such cover in the commercial insurance market..

The clinical negligence aspect will be covered by the Clinical Negligence Scheme for Trusts (CNST) supervised by the DHSC and NHS Resolution.

However, as things stand this indemnity will be in place only until March 2021 and is to be reviewed in mid-February.

How helpful is this scheme going to be for the care home sector?
One of the concerns for care home managers seeking to participate will no doubt be the ability to provide a dedicated COVID- 19 workforce, particularly given the pressures on staffing already apparent.

If Designated Settings are to be contained within care homes also containing those who have not been exposed to COVID-19, reassurance around dedicated staff, PPE provision, social distancing and adequate ventilation may not be enough to convince service users that they are in fact completely safe.

 It remains to be seen how successful the scheme will be for care home operators who have difficulty in obtaining commercial insurance cover for COVID related claims. The impact on the NHS of course will depend on just how successful this scheme actually is in freeing up acute beds.

Given however that the indemnity scheme is limited in its time frame and scope the concern must be that it will simply be insufficient to make any real impact on the problem.


This image has an empty alt attribute; its file name is woodwark_s-13_web.jpg
Sarah Woodwark, Partner, BLM
sarah.woodwark@blmlaw.com

Preventing Future Deaths reports arising from COVID-related deaths

It has been reported that approximately 100,000 people have now died from COVID-19 in the UK. Vulnerable adults are at the greatest risk of the disease and it is understood that close to 20,000 care home residents died in the first wave last year. Recent reports from the Guardian show the deaths in care homes in England have increased by 46%, the highest level since mid-May last year.

The Chief Coroner’s guidance in March 2020 confirmed that COVID-19 is a naturally occurring disease and therefore is capable of being a natural cause of death. This clarified the position that a death arising from COVID would not ordinarily be referred to the coroner, however, such a referral would be considered justified if there were additional factors which meant that a report of death to the coroner would be necessary.

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Government backed indemnity schemes announced for ‘COVID-19’ positive care homes and Community Pharmacies administering vaccines

We have previously written about the UK government’s plan to set up designated settings for persons leaving hospital who require a care home but have a diagnosis of COVID-19.  This was originally outlined in the Adult Social Care Winter plan released in November, and each local authority was required to put in place plans to set up such facilities.  Part of the set up problems was the willingness of the insurance market to provide cover for these settings. 

In a written statement this week (18 January 2021), the Vaccines Minister Nadhim Zahawi has confirmed provision of a temporary government backed indemnity to provide cover for clinical negligence, EL and PL cover in the circumstances where a care provider cannot secure sufficient cover, or cover at all via the commercial insurance market.  The scheme is intended to run only until the end of March 2021 and, as such, has the feeling of a ‘stop gap’ solution.

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