Your hub for news and views on all issues affecting the health and care sector including regulatory updates, care home and domiciliary news, relevant case law and inquiries.
BLM is an insurance risk and commercial law firm with both a domestic and international focus. We now work with an increasing number of clients, across more lines of business, in more locations throughout the UK and Ireland as well as across the world, than ever before.
Health and social care workers have been facing unprecedented pressures during the COVID-19 pandemic. The new wave of Omicron cases has swept across the UK causing staff shortages across the sector.
Stephen Chandler, President of the Association of Directors of Adult Social Services, has said that the care sector is currently facing a plethora of threats from staff isolation and COVID outbreaks to visiting restrictions. Moreover, the NHS is seeing a concerning number of staff shortages, which currently stands at approximately 93,000 workers. This could just be the beginning of the struggles to come across the health and social care sector in light of the mandatory vaccination regulations.
Fear of a “mental health crisis across the health and social care sector” in the UK has been expressed by Dr Talya Greene, the lead author of a Frontline COVID study report recently published in the European Journal of Psychotraumatology. This report, based on research conducted by University College London and the University of Haifa, Israel, is based on 1,194 health and social care workers from hospitals, nursing or care homes and other community settings across the UK in the period since the outbreak of the COVID-19 pandemic.
As at 5 January 2022, over 11,000 care home workers were reported to have been off work due to COVID-19. Over 90 care home operators in England have declared a “red” alert, meaning staffing ratios have been breached. Care Forum Wales reported that up to 75% of care staff are currently off work. Appeals to the Welsh Government have been made by numerous care homes for a significant increase in PPE to address this. This is a major problem with clear consequences for care standards. However, staff absence due to self-isolation is not the only pandemic-related issue likely to impact staffing levels.
Reduced staffing levels will negatively impact the standard of care which remaining staff are able to provide to residents, with the potential of increasing the risk of injury and neglect due to an insufficient carer to resident ratio. Some care home operators have reportedly felt forced to allow employees with positive COVID-19 tests to continue working in order to address the risks presented by the lack of staff, which in turn presents the additional risk of transmission to elderly and vulnerable residents. It is not clear how care providers will be able to alleviate these risks, or whether further Government assistance will be provided.
The Paterson Inquiry has again reared its head as the government gives its full reply to the findings of the independent inquiry led by the Reverend Graham James, former Bishop of Norwich.
For those unfamiliar with the origins of the Paterson Inquiry, Ian Paterson is a disgraced breast surgeon who was jailed for 20 years in 2017 after being convicted of 17 counts of wounding with intent and three counts of unlawful wounding of patients he had treated in the private sector. Paterson subjected more than 1,000 female patients, including children, over a period of 14 years, to operations that were either medically unnecessary or left them exposed to a recurrence of breast cancer. Paterson later became the subject of an Inquiry which concluded in February 2020 with multiple recommendations being made to prevent this kind of gross malpractice from occurring again. Of particular interest to the Inquiry was the inherent failure of the system to stop these events over so many years of practice in the NHS and independent sector.
The 15 formal recommendations made as a result of the Inquiry, though far reaching, fall short of demanding new regulatory and assurance processes. The chair of the Inquiry described a ‘healthcare system which proved itself dysfunctional at almost every level’, but did not advocate for a total regulatory overhaul. Rather, the focus of the recommendations was to ‘get the basics right and implement existing systems’ in both the NHS and private medical sectors, making full use of the resources available to ensure proper oversight and scrutiny of medical professionals.
Care home residents are about to once again face restrictions in the number of visitors they can have. Only three named visitors and one essential caregiver visitor will be allowed from Wednesday 15 December. Given that there is no official ‘lockdown’ for the rest of the country at present, these new restrictions have been criticised by charities and care trade associations, since the rest of society is free to largely socialise without restrictions.
Readers of this blog, particularly those with an interest in dentistry will be aware of the developments that have been taking place over the last few years in relation to the issue of whether dental practices/owners are vicariously liable for the actions of associate dentists engaged by them and/or owe a non-delegable duty of care to patients treated at their practice.
The judgments in a series of recent cases (Ramdhean v Agedoand the Forum Dental Practice; Breakingbury v Croad; and Hughes v Rattan*) have all held that they do.
The practical difficulties for those working in the field of dentistry thrown up by these decisions arise in part due to the fact that dentists are required by The Dentists Act to have an indemnity arrangement in place which provides appropriate cover for acting in that capacity. The dentists are generally engaged on a contract for services i.e. are self employed and practice owners have relied upon that status and the statutory (and regulatory) requirement for a dentist to arrange indemnity. The practice owners have not previously arranged separate practice cover for injuries sustained by patients in the course of treatment.
The All-Party Parliamentary Group on Beauty, Aesthetics and Wellbeing (APPG) is a cross-party group established in May 2019 to champion the aesthetic industry in Parliament. It has recently published its comprehensive report following a year-long inquiry into the standards for non-surgical cosmetic treatments. The APPG’s report sheds light on the absence of legal framework in this area.
The APPG identifies “a need for the beauty industry and the medical professions to work together to seek solutions that raise standards and protect the safety and wellbeing of consumers”. This article will outline some of the APPG’s key recommendations which are likely to have a significant impact on all parts of the industry.
A national minimum standard
The report criticises the current lack of regulation defining who can carry out these treatments. At present, procedures can be carried out by virtually anyone and there is no legal obligation for the provider to be insured. The APPG has proposed that both aesthetics practitioners and medical practitioners must be able to prove their competence by passing a minimum standard of training before administering treatments. The report considers how CPD could be used as a mechanism of ensuring this minimum standard continues to be met by practitioners.
Mandatory regulated qualifications
In response to the rising popularity of self-accredited courses, the report calls for stricter qualification rules to be put in place. There is strong support from the likes of the British College of Aesthetic Medicine that high-risk procedures, such as dermal fillers, should be restricted to being carried out by medical practitioners. The APPG recommends reclassifying dermal fillers as Prescription Only Medicines. This change in regulation would likely result in a higher proportion of doctors carrying these treatments out in the future, if non-medically qualified aesthetic practitioners are unable to continue offering them.
On 28 October 2021, the General Optical Council (GOC) launched new ‘Speaking up’ guidance, previously known as ‘Raising concerns with the GOC (whistleblowing) policy.’ The guidance is aimed at helping both individual and business registrants identify where they need to consider the professional requirement to speak up when a patient or public safety may be at risk. It should be read alongside the GOC Standards for Optometrists and Dispensing Opticians, Optical Businesses and Optical Students. It should also be considered in conjunction with the GOC’s professional duty of candour. The guidance is split into two parts, with Part 1 applying to individuals and Part 2 to business registrants.
The BBC has this week reported on data obtained from a number of sources in respect of care rates in the UK. The figures will be of interest to personal injury practitioners attempting to value the cost of care.
Figures at a glance
The Homecare Association considers the true minimum hourly rate for a care agency carer in the UK is £21.43
The average hourly rate for a directly employed carer is £24.94 according to software company The Access Group
The government has announced a £162.5m fund for carers having already confirmed a £5.4bn levy for social care over the next three years
BLM’s Care, Statutory Funding and Rehabilitation Subject Matter Group has crunched the numbers from these data sources and note that data collected by the Homecare Association includes care rates that provide for a profit element of 60p per hour which, based on the quoted rate of £21.43, is a 3% mark-up. Local authority (LA) payments for care do not cover the minimum cost set out by the Homecare Association. Whereas the private care rates obtained by The Access Group include a mark-up of £4.11 which is around 19%. Therefore, what the report suggests is a very wide discrepancy in profit margins between LA funded care and private care.
This report from the Homecare Association coincides with the release of the updated ASHE figures which shows an average increase in care rates across the 60th-90th percentile of 2.6%. BLM’s Actuarial Subject Matter Group will be analysing these findings. It is important to note that the figures provided in the ASHE data largely cover state funded care rates, which, as the Homecare Association study shows, are much lower than private care rates typically seen in catastrophic injury claims funded by insurers.
BLM’s own experience is that private care rates have seen a steady increase in recent years, with support worker/rehabilitation assistant rates reaching as high as £26 per hour. This links in with data obtained from The Homecare Association which found Wiltshire to be the area in the UK attracting the highest hourly rates for carers at £26.11. Whereas Halton is only attracting hourly rates of £12.68, highlighting the inequality in care rates across the country with the most deprived areas having the lowest carer rates.
It remains to be seen if private care rates will continue to rise. The answer could be gleaned from data obtained from ‘Skills for Care’ who have found that:
Vacancy rates in carer roles are now back above their pre-pandemic levels
Since March 2021, there has been a decrease in jobs (filled posts) of around -1.8%
In 2020/21 adult social care jobs increased by 2.8%. In domiciliary care services jobs increased by 7.4%
The data suggests a struggle in recruiting carers which will of course lead to a higher demand and therefore potentially increasing care rates. BLM will continue to monitor this position and the effect it will have on the costs of future care.
This update has been written for the Care, Statutory Funding and Rehabilitation Subject Matter Group at BLM. For more information on our Subject Matter Groups, please click here.
On 26 October 2021 the Office for National Statistics released the latest data from the Annual Survey of Hours and Earnings (ASHE). These are provisional figures based on estimates of income from a 1% sample of workers’ HMRC records for the tax year ending 5 April 2021, and they will be revised and updated in due course as the data is finalised. The provisional data provides a steer on how the earnings across all industries are changing. Those dealing with catastrophic injury claims will be particularly interested in the data relating to care workers as the rates are directly applicable to the recalculation of existing periodical payment orders.
The latest data shows an average increase in care rates across the 60th-90th percentile of 2.6%. Practitioners will be aware that the hourly rates actually compensated within a catastrophic injury claim are typically significantly higher than those quoted in ASHE, given that ASHE covers all care workers (most of whom are state funded) whereas a catastrophic injury claim is typically compensated on the basis of a private care package which can be twice the hourly rates quoted within ASHE. That being said, the rates might offer an indication of trends in care costs generally.