Government is working to fulfil election manifesto promises regarding social care reform

During yesterday’s daily Downing Street briefing, Matt Hancock was asked by the BBC about his party’s election manifesto promises concerning social care reform.

Prior to the December general election, the Conservative party manifesto promised to reform social care.  Matt Hancock was asked at the briefing yesterday by the BBC whether the government was still planning a cap on care fees that have to be met directly, and whether  he accepted that social care reform could not be put off again.

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“CQC Insights” offers insight into key issues affecting adult social care providers

On 20 May 2020, the CQC published its first COVID-19 Insight document, said to be the first of its regular discussion documents on key issues affecting health and care.

The full document can be found here.

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Increase in deaths of people receiving care unrelated to COVID-19

In the last few weeks, the COVID-19 related issues concerning care homes have become increasingly more apparent and a light has been shone on the pressures homes have faced. There has been suggestion that care providers have somewhat been missed by the Government, in respect of PPE, testing of staff and residents, or those returning from hospital. Sadly, since the beginning of April, the number of COVID-19 related deaths which took place in homes among residents overtook the number of care home resident deaths within hospitals. Many have suggested the main factor in respect of this has been the lack of testing of those with COVID-19 symptoms, when they have been returning to their care homes, having been receiving treatment externally.

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Using technology to tackle the issue of COVID-19 within care homes

Release of online portal

Within some of our more recent blog posts, we have commented upon the crisis of COVID-19 deaths within care homes, together with the growing concern that the official figures for the number of these deaths could be a lot higher than that reported.

In response to this crisis, on the 28 April, the Government announced that testing would be prioritised and expanded in the care sector, to include both symptomatic and asymptomatic care home staff and residents. As a result, all care home staff and residents are now eligible for testing with priority for those in homes that look after the over-65s. To aid this additional testing, an online portal has now been released within care homes, enabling care homes to arrange deliveries of COVID-19 tests.

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Do we care?

The COVID-19 pandemic has shone a light on the resourcing of care homes that is long overdue.

Following exchanges in the commons and a study by LSE it appears that 22,000 care home residents have died in England and Wales to date as a result of COVID-19 but statistics will no doubt continue to be debated with the lack of testing being a stumbling block for absolute clarity.

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COVID-19 recovery for the social care sector

Following the Prime Minister’s address on Sunday 10 May, detailed guidance has been published today on the Government’s Covid-19 recovery strategy, which includes a fresh emphasis on the importance and needs of the social care sector.

Particular emphasis is given to the NHS and capacity and how to protect care homes.  In particular, given the widely reported problems with the supply of PPE, the guidance sets out a specific strategy for PPE, including increased domestic manufacturing capability and more robust supply lines.

The Government also commits to bolstering and investing in the social care sector, recognising that an efficient social care sector will free up pressure on the NHS, as patients can be discharged from NHS care more efficiently to care and nursing homes.

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An update on COVID-19 deaths in care homes: CQC and ONS figures

In our previous blog piece dated 24 April 2020, we touched upon the various COVID-19 problems that the care sector is currently facing. We set out that as official figures on care home COVID-19 deaths only began on 9 April 2020, it would take time to know the full extent of this crisis. In an effort to gain better transparency on this issue, the CQC and ONS have now joined forces to release its first set of official figures.

The figures are based upon COVID-19 death notifications sent to the CQC by registered care providers. Based upon these figures, it would appear that whilst COVID-19 deaths in hospitals are reportedly starting to fall, the same cannot be said for care homes. In stark contrast, the CQC figures revealed that there were a total of 4,343 deaths involving COVID-19 in care homes between 10 April 2020 and 24 April 2020.

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PPE for healthcare workers remains a troubling issue

As reported in our last blog, the Chief Coroner for England and Wales has recently provided updated guidance on inquests, commenting that in the contents of COVID-19, inquests are not a suitable forum to examine high level and government policy relating to the provision of personal protective equipment (PPE).

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Further guidance issued by HM Coroner – COVID-19 deaths

The Chief Coroner for England and Wales issued further guidance on 28 April 2020 in the form of guidance sheet number 37 addressing COVID-19 deaths and possible exposure in the workplace.  This will be of significance to those involved in inquests or investigations relating to COVID-19 deaths.

He confirms that the vast majority of deaths from COVID-19 arise from the natural progression of this naturally occurring disease and therefore will not be referred to the coroner. He reminds his coroners of the Ministry of Justice guidance on the Notification of Deaths Regulations 2019 which confirms that a death is to be typically considered unnatural if it has not resulted entirely from a naturally occurring disease process, importantly it goes on, where nothing else is implicated.

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How is COVID-19 affecting inquests and the work of coroners?

Guidance has been issued by the Chief Coroner with regard to the effect on inquests and the work of Coroner’s during the COVID-19 pandemic.

Effect on hearings/investigation

In common with other court hearings, the guidance confirms that no physical hearings should take place at present unless essential and urgent.  The alternative is to hold such hearings remotely via video-link.  But a general principal of coronial hearings is that they should take place in public and this would be hard to do via video-link.  The Chief Coroner’s guidance suggests that a coroner conducting the hearing from a court with a member of the press in attendance and a family member present would mean the hearing had been held in public.

Many coroners are medical professionals and of course may be deployed to front line duties, so unable to prioritise inquest work at present.

In any case, we would expect that inquests are likely to be adjourned for several months at least due to staffing shortages and delays in investigations.

Another effect of COVID-19 is that carrying out a post mortem may be difficult at present due to lack of availability of pathologists and their staff, lack of post mortem and storage facilities, and also infection risk.  If a post mortem cannot be carried out in sufficient time, then the guidance says the coroner should take a pragmatic approach and carry out investigations as best they can.

COVID-19 as cause of death

COVID-19 can be recorded as a cause of death and is a notifiable cause of death that should be notified to Public Health England.  But, a death from COVID-19 is not a reason of itself to make a referral to  the coroner.  Instead reasons why the matter should be referred to the coroner might include:

  • Concerns about care or delays of care in the lead up to death
  • Failure to provide PPE or protect employees
  • Unclear cause of death
  • Deaths that require referral to the coroner in any case such as a death in state detention

It remains to be seen how the COVID-19 pandemic will affect the claims market in the future.  The media has highlighted in the last week regarding the strain the social care and health care sectors are under with regard to lack of sufficient PPE, as well as delays in treating patients.

A full copy of the Chief Coroner’s Guidance can be found here.


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Written by Jennifer Johnston at BLM.

jennifer.johnston@blmlaw.com