Scottish COVID-19 inquiry publishes academic scoping research on care homes during the pandemic and Scottish Government publishes National Care Service (Scotland) Bill

The Scottish COVID-19 inquiry has recently published 14 academic research reports commissioned as part of the planning process in the early stages of the inquiry’s work. This blog firstly considers two of the five reports published under the portfolio of “the provision of health and social care services”.

One of the reports, compiled by the School of Health and Social Care at Edinburgh Napier University notes that “Care home residents were subject to severe restrictions for many months, including bans on visits, being unable to leave the home, and being cared for primarily in their room. This caused great distress and is likely to have contributed in a number of cases to cognitive and emotional decline and even death. The need for some restriction was understandable, given the vulnerability of care home residents and the large number of deaths in the sector. However, the legal basis of the restrictions is unclear, and there was arguably discrimination in respect of this group, compared with the rest of the community. There is little evidence in the early months of consideration of the human rights of residents and their families including the proportionality of measures generally or in individual cases. Matters improved from autumn 2020, although the guidance on outbreaks meant that many residents still faced severe restrictions for many weeks.”

Another of the reports, prepared by Edinburgh University Law School, states that 50% of all COVID-19-related deaths in Scotland between March and June 2020 involved care home residents, and that a lack of testing before hospital patients were discharged to care homes contributed to COVID-19 outbreaks.

The points made in these reports has potential to further complicate the legal and factual issues for consideration in any COVID-19 claims against care homes, especially the point on a lack of testing before patient discharge from hospitals to care homes in the context of causation.

It is important to note that nothing in the research reports is binding on the inquiry. The inquiry will make its own findings and recommendations in due course. This inquiry, chaired by the Scottish Judge Lady Poole, was established on 28 February 2022. A link to the current terms of reference for the inquiry is here. A link to the inquiry’s website is here.

In a separate development, though with potential to impact on the future running of care homes in Scotland, the Scottish Government introduced to the Scottish Parliament a National Care Service (Scotland) Bill on 20 June 2022. If enacted, this legislation would allow Scottish Ministers to transfer social care responsibility from local authorities to a new, national service. The Bill also includes provisions to underpin what has become known as “Anne’s law”, designed to ensure that adult care home residents have the right to remain connected with those important to them. Another of the Bill’s provisions is to give Scottish Ministers a new power to issue directions to care homes on visiting arrangements including when the care home is experiencing an outbreak situation. The Bill will need to pass through three legislative stages at the Scottish Parliament before it may be passed for Royal Assent to become law for subsequent implementation. The legislative process itself is likely to take several months. A link to the Scottish Parliament’s webpage on this Bill is here.

Zoe McDonnell, partner and Greg MacDougall, partner  

Covid19 inquiry – revised draft terms of reference

In mid-March we noted the publication, for consultation and comment, of the draft terms of reference (TOR) for the independent inquiry into the national impact of Covid-19. The inquiry was set up by the Prime Minister and will be chaired by Baroness Hallett, a retired Court of Appeal judge.

Baroness Hallett’s team have analysed responses on the TOR and made several important revisions to the inquiry’s brief. The revisions proposed sharpen the TOR by, for example

  • placing greater emphasis on studying the impact on mental health of the pandemic
  • specifically including impacts on health and care workers, and on children and young people
  • examining the effects on the safeguarding and support for victims of domestic abuse
  • adding the effects of the closures of the travel and tourism sector and of places of worship as matters for consideration
  • looking at initial contacts with health services, advice lines and primary care, and
  • considering the impact on ante- and post-natal care

Other revisions of a more functional nature touch on the collaboration between national, devolved, and local government and add the use of research and expert evidence to the need to consider how data was used and made available.

The inquiry team also recommends reviewing not only how decisions were made, communicated and implemented but also how they were recorded. This point speaks to a concern that private e-mail or WhatsApp accounts may have been used rather than official departmental channels.

I am grateful to my colleague Rachel Quinn for carefully examining the documents and preparing the attached note which highlights Baroness Hallett’s proposed revisions. New text is shown in yellow and the turquoise highlighting shows text which has been moved.

The revised terms of reference for the inquiry were sent to the Prime Minister in May. At the time of writing, there has so far been no formal response. The inquiry continues to make some progress, however, and today announced the appointment of 49 junior counsel to assist with investigations, in addition to 11 QCs who were appointed at the beginning of May.

For the changes to the Annex: Recommended Terms of Reference, please click here and see the highlighted sections.

Written by Alistair Kinley, Director of Policy & Government Affairs (Alistair.Kinley@blmlaw.com).

EHRC report on bullying racism and harassment in the health and social care sector

The Equality and Human Rights Commission (“EHRC”) began an inquiry in late 2020 into the experiences of health and social care workers from a range of ethnic minorities. The inquiry focused upon lower paid roles and has now produced its final report. 

The final conclusions of the report were hampered by incomplete data on lower paid ethnic minority workers, in particular from the adult social care sector, which meant that it was difficult to know the true extent of any issues. However, the inquiry did find that low paid social care workers from ethnic minorities did experience different treatment at work. They were more likely to be employed on zero hours contracts which, of course, leads to poor pay and lack of job security. These workers also had less awareness of their employment rights and had a fear of raising any concerns. 

In addition, this group of workers has also been at the forefront of keeping the social care system going since March 2020 during the Covid-19 pandemic, and previous reports suggest ethnic minority workers in the health and social care sector were particularly affected by the Covid-19 virus. 

The inquiry report makes various recommendations to try and rectify these inequalities within the health and social care system such as:

  • A more systematic way of gathering data
  • Regulators to include within existing frameworks how to address equality issues and implication for welfare of staff
  • Strategies to ensure and promote awareness of employment rights
  • Address organisational cultures to raise concerns freely

The issues raised by this inquiry report may of course be the basis also of employment tribunal claims as well as civil claims for work related stress. Health and social care providers should be mindful of the findings of this report going forward. 

A copy of the report’s conclusions can be found here.

Written by Associate, Jennifer Johnston

The government publishes its long-awaited response to the Paterson Inquiry

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.

Continue reading “The government publishes its long-awaited response to the Paterson Inquiry”

Judicial review of Government response to COVID in care homes: imminent hearing in England & significant developments in Scotland

Last November we reported on Mr Justice Linden’s decision to grant permission for judicial review on all grounds of the UK government’s policies and measures which had a bearing on the protection of care homes during the COVID-19 pandemic. The claim, which relates to patient discharge policy in England, will be heard later this month. In respect of Scotland, recently released information by public health authorities appears to acknowledge some important difficulties there in the early part of last year. This blog explores the key issues in both jurisdictions and sets the scene for the (English) judicial review later this month.

Continue reading “Judicial review of Government response to COVID in care homes: imminent hearing in England & significant developments in Scotland”

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.

Continue reading “Further guidance issued by HM Coroner – COVID-19 deaths”

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.


jj

Written by Jennifer Johnston at BLM.

jennifer.johnston@blmlaw.com

 

CQC publishes proposals as the next stage of regulating independent healthcare providers

In August 2017 the Care Quality Commission (CQC) had rated just three out of 17 online primary care services providers as having met the required safety standards. As the CQC does not have the legal powers to give online services an overall rating as it does with GP practices they have instead rated them by giving them a pass or fail to five key questions:

  • Whether the service is safe? 
  • Whether the service is effective? 
  • Whether the service is responsive? 
  • Whether the service is caring? 
  • Whether the service is well-led?
Continue reading “CQC publishes proposals as the next stage of regulating independent healthcare providers”