“We are facing a secondary pandemic of neurological disease.”

“We are facing a secondary pandemic of neurological disease.”
Robert Stevens Associate Professor of Anaesthesiology and Critical Care Medicine at Johns Hopkins Medicine, US.

With medical science struggling to keep up with coronavirus and its consequences, it will be several years at least before more conclusive studies as to the long term impacts of the pandemic can be produced. The law lags even further behind.

Whilst COVID-19 has largely been considered to be a respiratory disease, more than 300 studies from around the world report a significant number of COVID-19 patients are displaying neurological abnormalities ranging from mild symptoms, such as headaches and loss of smell, to more severe variants commonly associated with mild to moderate brain injury.

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Has COVID-19 resulted in the unauthorised Deprivation of Liberty in care settings?

The data obtained by the CQC and published in the third issue of their publication titled COVID-19 Insight reports a drop in the number of notifications received from providers in respect of Deprivation of Liberty (DoLS) applications from March – May 2020 suggesting on simple reading  of the data that the answer to this question is “yes”.

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Covid-19 – ‘Bubbling’ care homes

Care homes have undoubtedly been significantly affected by Covid-19 and the manner in which cases have both spread and been controlled has been criticised across national media outlets. The Office for National Statistics, reported on 3 July that for deaths registered up to 9 May 2020, 12,536 involved Covid-19. The number may of course be significantly higher as testing has not been undertaken in every death.

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/articles/deathsinvolvingcovid19inthecaresectorenglandandwales/deathsoccurringupto1may2020andregisteredupto9may2020provisional#deaths-involving-covid-19-among-care-home-residents

A recent study by NHS Lothian and Edinburgh University , looking at care-home outbreaks in a large Scottish health board has been undertaken. The study considered 189 care homes in the Lothian area where more than 400 people died from Corona.

The study identified that 37% of care homes considered within the sample group had experienced an outbreak of Covid-19 and significantly the larger the care home, the larger the associated outbreaks. NHS Lothian and Edinburgh University found the likelihood of the infection spreading increased three fold with every increase of around 20 beds. Homes with less than 20 residents had a 5% chance of outbreak, compared with a figure between 83% and 100% for homes with 60 to 80 residents.

The concerns with how the virus was controlled in care homes is still relevant considering the potential for a second wave. Lessons can and should be learned to prevent such significant numbers of deaths occurring again and actions taken to lessen the impact of a second wave. The study found that many of the deaths were due to outbreaks in only a few locations. This essentially means there is a wide pool of care homes that Covid-19 has not broken into, and thus a wide pool of potentially vulnerable residents that will need further protection ahead of any second wave.

The possibility of creating ‘bubbles’ within care homes has been suggested. These ‘bubbles’ in a care home setting could be created from sectioning larger Homes into smaller units.  Residents would be assigned to a small sub-unit and particular staff would also be assigned to those units. This way interactions between residents, staff, and the general footfall through the home could be limited, reducing the potential spread. Staff could be assigned to certain areas, and more scheduling of bubbled staff could be introduced for the running of the care home, such as cooking, cleaning and maintenance.

This in theory sounds like a possible way to reduce the outbreaks within care homes, however this will of course take considerable planning, resources, and staffing which will in turn increase the funding required to support the care homes.  Consideration will need to be given to individual set ups of care homes, and the possibility to  create small units within them, especially for homes with residents who may be prone to wandering, such as those suffering with dementia.

Pressure will likely continue to mount on the government, requiring clearer advice, and forward planning for a potential second wave and to ensure steps are in place to prevent the impact of any second wave.


Written by Holly Paterson at BLM

holly.paterson@blmlaw.com

COVID-19 and Scottish care homes: an update

On Monday 13 July 2020 Scottish Government reported that no COVID-19 (C-19) deaths had been registered in Scotland on any of the five preceding days. However – on the same day – Scottish Government also reported that public health teams were investigating after seven new cases of coronavirus – picked up by routine testing – had been traced to a single care home in the greater Glasgow area. All seven people who tested positive were asymptomatic at the point of testing.

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Results of the Vivaldi study and implications for infection rates in care residents and staff

On 3 July we saw the publication of the results of the Vivaldi study – a large scale survey which looked at the prevalence of COVID-19 across 9,081 care homes in England and sought to identify key factors affecting the risk of infection among residents and staff.

Result of the survey

The survey was conducted between 26 May and 20 June, and focussed on an estimated 293,301 residents and 441,498 staff (including cleaning, catering and admin staff) in a subset of homes providing care to the elderly (65 and over) and dementia patients.

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Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

Continue reading “Article 2: right to life in a state-funded care home?”

How the care sector can take best advantage of business opportunities

There has been no shortage of commentary on the challenges facing care homes during the pandemic, from the number of infections and fatalities to the risk of further waves and lack of testing and PPE, along with the loss of income due to lower occupancy and reduced staff levels and reputational implications. There is speculation that some 25% of care homes may go out of business.

However, whilst these matters are real threats to businesses in the care sector, there are nevertheless some things that are well worth you considering as part of your plan for sustainable growth for a viable care business. The following are just some examples.

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Frontline health & care staff £60,000 payments

The Department of Health issued a press release confirming that families of health and care workers on the frontline in England will benefit from a new life assurance scheme during the Coronavirus (COVID-19) pandemic. Details of the scheme, which were first published on 27 April, are now beginning to become clearer.

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COVID-19 & RIDDOR for care providers: when and when not to report

The Health & Safety Executive’s (HSE) guidance in respect of RIDDOR and COVID-19 presents a significant challenge to those responsible for reporting within a care setting. Care providers are understandably concerned that notifying the HSE of a non-reportable incident could result in an unnecessary HSE investigation. Some care providers are also concerned that a notification under RIDDOR may be construed as an admission of responsibility should a criminal and/or civil action be pursued.

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Partially remote hearings for inquests – New Chief Coroner Guidance

On 11 June 2020, the Chief Coroner published his Guidance No 38, ‘Remote Participation in Coronial Proceedings via Video and Audio Broadcast’.  This guidance builds upon Guidance No 35 dealing with hearings during the COVID-19 pandemic which we have commented on in previous blogs.

Since the lockdown began most inquests have been postponed, with coroners opening inquests and holding documentary inquests where no witnesses are called to give evidence.

The current pandemic has seen the  increase in use of partially remote hearings where the court is satisfied that it is just to do so.

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