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  

Easing of COVID-19 restrictions – how will this affect the social care sector? 

The Prime Minister this week announced the end to the majority of COVID restrictions in England There will no longer be any legal requirement to self isolate and the availability of free PCR and lateral flow tests will be significantly reduced. 

What will be the effect on the social care sector?

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Care home visitor restrictions in wake of rising Omicron cases

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.

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Report critical of the UK’s handling of the coronavirus pandemic and effect on care homes

A joint report by the House of Commons All Party Health and Social Care and Science and Technology Committees says the UK’s failure to prevent the spread of COVID-19 pandemic was one of the worst ever public health failures. 

Focusing predominately on England, the report criticises delays in introducing a county wide lockdown.  The delays in dealing with the pandemic meant that certain vulnerable groups such as care home residents and people with learning disabilities were particularly susceptible to the virus, and the government did not prioritise the social care sector at the outset.  In particular the report criticises the rapid discharge of patients from hospitals into care homes.  Also lack of testing of social care staff meant that the virus could enter care homes from the community.   

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What is the UK’s legal position on compulsory vaccination?

It has been confirmed that the COVID-19 vaccination will become compulsory for staff that care for the elderly and vulnerable. In enforcing such a requirement, organisations are likely to face a number of issues and potential pitfalls, and it is important therefore to explore the key steps if you are considering introducing compulsory vaccination for staff or those deployed in the organisation.

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Mandatory vaccinations and medical exemptions of care home workers – government u-turn or a temporary reprieve?

It has recently been reported that care home workers are able to opt-out of the mandatory COVID-19 vaccination requirement by self-certifying that they are medically exempt.

Thursday 16 September 2021 was meant to be the deadline for all carers to have received their first COVID-19 vaccination. This mandatory vaccine requirement for all care home staff has been a source of constant debate since it was announced, with growing concerns that a significant number of care homes may be forced to close and thousands of staff from an already depleted workforce risked losing their jobs if they declined to have the vaccine. The government has been lobbied by both providers and unions that care home workers had been “singled out” and the very real possibility of the doomsday scenario of a mass exodus of care home staff in England, so it perhaps does not come as a great surprise that Whitehall has taken some evasive action (perhaps with an indication as to how many staff had refused the vaccine). However, how effective will this self-certification opt out process be and is it only a temporary fix to what has become a polarising political issue.

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ACAS guidance published – getting the COVID-19 vaccine for work

Our latest blog post commented on the new Government rules coming into effect from 11 November 2021 around vaccination for anyone who works inside a CQC registered care home in England. ACAS has published new advice for care home staff in England setting out how employers can approach the issue with their staff.

Following the suggestion that mandatory vaccination in a care home setting could lead to around 3-12% of care home staff being no longer able to work, the advice from ACAS focuses on helping employers to support staff and to provide strategies to avoid potential disciplinary action or dismissal.

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Could restricted access to dental care lead to claims?

A recent article in The Telegraph has highlighted the impact that the COVID-19 pandemic has had on the dental health of children.

NHS figures reveal that the number of children having dental check-ups fell by 50 per cent during the first year of the pandemic. In total, the number of under 15s who saw a dentist fell from 5.8 million to 2.9 million.

It is, however, the youngest age groups which have been impacted the most. Whilst there were 1.2 million dentists’ appointments for under 5s in 2019, only 468,000 appointments were arranged for 2020, a 60% fall. The article suggests that only 1 in 7 children under the age of 5 saw a dentist in 2020 compared to 1 in 3 during 2019.

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COVID-19 vaccinations – the right for healthcare workers to decide and the impact on social care

Most people who followed the press coverage in the UK following the public announcement of an ambitious national vaccination rollout would have foreseen the possibility for tension to exist between the public drive for everyone to be vaccinated against COVID-19 and the right of autonomy to refuse. The number of “anti-vax” conspiracy theories circulating online is simply staggering and some of the farcical claims really do beggar belief, notwithstanding the government’s attempts to allay these concerns. However, whilst many are content for individuals to make their own informed (or otherwise) decision, it becomes a far more emotive subject when the workers concerned are in the healthcare sector. Chances are, the majority of people reading this will have been affected directly or indirectly by COVID-19 and many more will have vulnerable or elderly relatives who rely upon the care and unwavering dedication of healthcare workers but it may not be a particularly comforting thought if the person providing that care to a vulnerable loved one were to refuse the vaccine.

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Social care reform, deaths in care and the pandemic

The Queen’s speech was delivered to both Houses of Parliament on 11 May 2021 with a focus upon protecting the health of the nation and economic growth. Criticism has been made however, of the lack of a concrete commitment to address the long-standing funding issues that have plagued the care sector with a brief mention only made within the speech that “proposals on social care reform will be brought forward”.  This appears to follow a lack of agreement between No 10 and the Treasury regarding a strategy to limit the amounts pensioners have to pay towards their own care. 

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