On 4 February the Court of Appeal handed down the latest decision in a series of cases addressing the issues of vicarious liability (VL) and non-delegable duty of care (NDDOC).
This area of law has, in recent years been litigated particularly in dental negligence cases. The decision comes hot on the heels of the Court of Appeal’s decision in Pawley v Whitecross Dental care Limited and Petrie Tucker and Partners Limited which was covered in this blog last December.
In the wake of the COVID-19 pandemic, the care sector has seen thousands of care home workers resign or be dismissed, following the introduction of mandatory vaccination legislation on 11 November 2021. The current legislation requires mandatory vaccination for care home workers within CQC registered care homes that provide accommodation for people needing nursing or personal care, unless they can evidence a valid exemption. It is estimated that the care home workforce has lost around 40,000 staff as a result.
After growing concern over the stability of the health and social care sector, the Secretary of State for Health and Social Care, Sajid Javid has announced to Parliament that the government will launch a consultation on ending Vaccination as a Condition of Deployment (VCD) in health and all social care settings in the United Kingdom. This move came days before the 3 February 2022 deadline for unvaccinated NHS workers, who have been facing an ultimatum of having their first dose of vaccine or being dismissed.
Subject to the responses received to the consultation and parliamentary approval, the Secretary of State will revoke the regulations.
We have written recently about the difficulties being faced by both English social care providers and NHS England regarding mandatory vaccination against COVID-19. This is a real concern in view of staff shortages in the social and health care sectors.
At present, the issue of staff shortages in social care are extreme and anything that further impacts on the workforce is going to have a major effect. For example we have seen recent news reports where families have had to resort to their own ways of funding care – see here. Whilst in this instance it’s unclear why the private provider could not continue the care package, we consider such scenarios are sadly likely to become commonplace.
We have had significant experience in handling claims that have arisen from domiciliary care usually due to issues involving carers missing appointments.
However there has been a hint today that the government may relinquish the policy of requiring mandatory vaccination against COVID-19 for health and social care staff in England, in view of the lesser severity of the Omicron variant, and in view of the unpopularity of the decision with the workforce and unions. A decision will apparently be made by the government in the next few days. See here for further information.
It’s unclear however how those staff who have already lost their jobs due to the vaccine requirements will view any potential change in policy, and whether they would seek legal redress on this issue.
As has been widely reported in the media, the Government has passed new regulations, approved by Parliament, extending the scope of mandatory vaccination for staff in the health and social care sector. In my latest blog post on mandatory vaccinations, I set out the amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and what this could mean for the health and social care sector. NHS England has now published its Phase Two guidance on the implementation of these new regulations which came into effect on 7 January 2022, requiring all health and social care workers to be double vaccinated against COVID-19 by 1 April 2022.
Recent reports by the Care Quality Commission (CQC) have rated one in five care homes specialising in the care of dementia patients either “inadequate” or “requires improvement”. Some of these homes have been deemed to present such a risk to patients that they have been placed in “special measures”.
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.