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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Scottish care homes – COVID-19 and human rights

On 26 September 2020, the Herald newspaper reported that “moving elderly from Scots hospitals to homes during coronavirus pandemic may have been illegal.” The article focuses on the discharge from hospitals to care homes of “hundreds” of adults lacking in full legal capacity (ability to make relevant decisions). Edinburgh Napier University’s Centre for Mental Health and Capacity Law has expressed concern that since the start of the COVID-19 (C-19) pandemic, movement from hospitals to care homes of adults without capacity may have taken place without due legal process and in violation of the European Convention on Human Rights (ECHR) and the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). ECHR rights said to be engaged include the right to personal liberty and security and the right to respect for private and family life. The CRPD aspect concerns equal rights for people with disabilities. Particular issues arising include the extent to which steps were taken to ascertain whether particular adults were capable of expressing a wish and whether family members and any legal guardian were consulted before people were moved.    

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Health Minister announces Adult Safeguarding Bill for Northern Ireland

On the 10 of September, the Northern Ireland Health Minister Robin Swann confirmed his intention to bring forward a new Adult Safeguarding Bill for Northern Ireland, to help protect care home residents and other vulnerable members of society.

This commitment is in response to the first report from an independent review commissioned to examine the health and social care system’s response to care failings at Dunmurry Manor Care Home which had previously been identified.

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