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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Robots in care packages

Using robots to help carers deliver care in the UK may seem like a distant reality, but in actual fact it is already happening. Lawyers and insurers dealing with personal injury cases may therefore be seeing such technology on their claims sooner than they think.

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Study suggests excess death toll in care homes from Covid-19 has been hugely underestimated

An early draft of a study from the University of Manchester suggests there may have 10,000 more deaths of care homes residents than previously reported. The study compares statistical data on deaths in care homes between January 2017 and February 2020 with data from April to August 2020.

This study has not yet been peer reviewed, but notes that of the excess deaths, 65% were only directly attributed to Covid-19. That leaves the remaining 35% (10,000 deaths) that were not officially attributed to Covid-19. The question is what caused those excess 10,000 deaths.

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Care homes and visiting- the latest news

We wrote at the start of this month about the government’s plans for visits to care homes and how this could be implemented in a Covid-secure manner. Such plans however were heavily criticised by the care home industry and families of residents. The government’s proposed measures required equipment such as screens and intercoms, so would cause difficulties for residents with dementia or cognitive difficulties, not to mention putting extra financial strain on homes in funding this equipment.

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Safeguarding issues for care providers during the COVID-19 Pandemic

The importance of Safeguarding vulnerable adults residing in care homes has never been more important than during the pandemic. Care staff, be they managers, a carer, nurses or personal assistants are all facing this challenge .

The Care Act statutory guidance (para. 14.7, June 2020) defines adult safeguarding as:

“Protecting an adult’s right to live in safety, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse or neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feelings and beliefs in deciding on any action. This must recognise that adults sometimes have complex interpersonal relationships and may be ambivalent, unclear or unrealistic about their personal circumstances.”

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Government’s plans to create ‘COVID-19 positive’ homes runs into difficulties

Last month we reported that the Department of Health and Social Care (DHSC) was putting place plans to set up so called ‘COVID-19 positive’ care homes where patients could be discharged to from hospital rather than regular care homes. This plan was created with the intention of easing pressure on hospitals as well as ensuring residents are not admitted to care homes whilst potentially being infected with COVID-19. Local authorities had been asked to confirm suitable locations for such facilities by mid-October with a view to having these facilities up and running by the end of November.

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Discharges from hospital to care homes in Scotland during COVID-19

At a coronavirus briefing on 28 October 2020, the First Minister quoted directly from a Public Health Scotland report published that day on ‘Discharges from NHS Scotland Hospitals to Care Homes between 1 March and 31 May 2020‘ (link here), saying “The analysis does not find statistical evidence that hospital discharges of any kind were associated with care home outbreaks.”

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The care sector, Covid-19 and claims: is litigation unavoidable?

Many of you will have seen the reports of the crowdfunded claim being brought by Dr Cathy Gardner against the UK government in relation to their response to the Covid-19 pandemic. Dr Gardner has sought judicial review of government policy relating to the decision to discharge Covid-19 positive patients to care homes when those already resident in the care homes were vulnerable. She wishes to obtain an explanation of what policies were put in place to ensure a ‘protective ring’ was placed around care homes but as at the time of preparing this article, Dr Gardner is of the view that the response from the government is insufficient.

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