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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New GDC guidance on factors to be taken into account – a step in the right direction?

Following the joint statement published by regulators at the start of the pandemic, on 14 January 2021, the GDC published supplementary advice to decision makers on the factors to be taken into account when considering complaints arising during the pandemic.

The advice, which is to be welcomed, sets out the various contextual matters to be taken into account by decision makers which include environmental issues and resource, guidelines and protocols.

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Clarification on non-delegable duty of care in clinical cases

In recent years there has been a significant rise in the number of clinical negligence cases involving issues of both vicarious liability (VL) and non-delegable duty of care (NDDOC). These allegations often arise in situations where private companies contract with the NHS to provide NHS services, or where private companies sub contract with medical, dental, or nursing professionals to provide services.

The recently decided case of Jaida Mae Hopkins v Azam Akramy, Badger Group and NHS Commissioning Board [2020] EWHC 3445 (QB) has provided some much needed clarity on NDDOC in these cases and when it may arise under statute or the common law.

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Potential impact of carers refusing to be vaccinated

As shown in the BLM Policy blog of 15 December 2020 (link here), COVID-19 (C-19) compensation claims appear to be gathering some momentum although, at this point, the total number of such claims that have been officially registered with the Compensation Recovery Unit of the UK Department for Work & Pensions remains very low.

As we have noted previously, new and untested questions on standard of care and legal causation would likely arise in any litigated C-19 claim. In this blog, we re-visit certain aspects of these potential questions in the context of vaccinations for care home staff.

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The continuing search for answers on COVID-19 and care homes north and south of the border

North of the border

As at 29 November 2020, there had been 2,315 COVID-19 (C-19) related deaths in Scottish care homes. On 27 May 2020, the First Minister of Scotland committed Scottish Government to holding a public inquiry into the handling of all aspects of the C-19 pandemic, including those relating to care homes, however calls are growing for a more immediate inquiry into the care home aspects.

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“Busting Bureaucracy” a step in the right direction?

On 24 November, the Department of Health and Social Care announced a new drive to ‘bust bureaucracy’, locking in changes introduced in the pandemic with the aim of allowing front line health and care staff to focus more on care provision and less on paperwork. Here, I focus on the changes that may be of the greatest interest to regulated organisations and individuals.

The report can be found here.

A call for evidence was made in July, with the message in response highlighting that changes introduced in light of the pandemic were changes made for the better. Respondees did not want to revert to old ways.

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COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

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Assistive technology in a reformed social care system

We wrote in 2019 about the role of assistive technology in how it could help social care users.  A new Commission by two care bodies has now been launched to explore the role of assistive technology in a reformed social care system.  The COVID-19 pandemic has shown the weaknesses and frailties of the UK social care system.  What role could assistive technology play in creating a more robust social care system for the future?

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High Court gives permission for judicial review into care home policies taken at start of pandemic

We wrote at the end of October about the crowdfunded legal challenge being brought against the UK Government in relation to their response to care homes at the start of the COVID-19 pandemic. Yesterday, in a remote hearing, Mr Justice Linden gave permission for this legal challenge to proceed to a full hearing.

The claimants, Dr Cathy Gardener and Fay Harris, are seeking a judicial review of the policies and related measures which had a bearing upon the protection of care homes between March and June 2020. They first formally brought their legal challenge in June, following the death of their fathers (who were both residents in care homes) from COVID-19 in April and May this year. As we have often reported in this blog, tens of thousands of care home residents have tragically died in care homes from (either confirmed or probable) COVID-19, since the beginning of the pandemic.

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