Discharge of hospital patients who test positive for COVID-19 to care homes – will Designated Settings make an impact?

As was highlighted in this blog, the Vaccines Minister Nadhim Zahawi has announced a ‘targeted and time limited state backed indemnity’ for care homes which are registered as Designated Settings or intending to register as a Designated Setting, and which are unable to obtain commercial insurance. The question is, will this relatively short-term move have the impact that is needed right now to protect the NHS and care sector?

So what is a Designated Setting?  
It is essentially a care home which has applied and been assessed by the Care Quality Commission (CQC) as an appropriate setting to care for COVID-19 positive patients who are discharged from the NHS and who no longer require an acute hospital bed. The objective is of course to relieve pressure on the NHS as it copes with the winter crisis.

The aim is that there is at least one Designated Setting in each local authority ‘as soon as possible’.

How are the care homes assessed?
The care homes are assessed by the CQC using its Infection Prevention and Control framework (IPC). Assessments are made to ensure patients are being physically separated, that there is a dedicated workforce and appropriate emphasis on ventilation.

The CQC is using an ‘eight ticks‘ approach in order to give the public an overview as to factors such as the availability of adequate PPE, that staff are properly trained to deal with outbreaks and the appropriate processes needed, that shielding is being complied with and hygiene practice is promoted.

How many Designated Settings are there currently?
As at 12 January there were 135 approved Designated Settings providing a total of 1,624 approved beds. The coverage across the country is however currently variable – there are only 87 approved beds for instance in London, but 381 in Yorkshire and the Humber.

Testing of CQC inspectors
Up until now CQC inspectors were not tested for COVID which was a source of concern for many. It is now proposed that inspectors will be tested weekly with the testing being rolled out in the coming weeks. It is not clear however why there is to be a delay since care home staff are already being regularly tested.

What is the state indemnity scheme going to cover?
The indemnity will cover claims for clinical negligence and employers’ and public liability where the care home provider operating a Designated Setting has been unable to secure such cover in the commercial insurance market..

The clinical negligence aspect will be covered by the Clinical Negligence Scheme for Trusts (CNST) supervised by the DHSC and NHS Resolution.

However, as things stand this indemnity will be in place only until March 2021 and is to be reviewed in mid-February.

How helpful is this scheme going to be for the care home sector?
One of the concerns for care home managers seeking to participate will no doubt be the ability to provide a dedicated COVID- 19 workforce, particularly given the pressures on staffing already apparent.

If Designated Settings are to be contained within care homes also containing those who have not been exposed to COVID-19, reassurance around dedicated staff, PPE provision, social distancing and adequate ventilation may not be enough to convince service users that they are in fact completely safe.

 It remains to be seen how successful the scheme will be for care home operators who have difficulty in obtaining commercial insurance cover for COVID related claims. The impact on the NHS of course will depend on just how successful this scheme actually is in freeing up acute beds.

Given however that the indemnity scheme is limited in its time frame and scope the concern must be that it will simply be insufficient to make any real impact on the problem.


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Sarah Woodwark, Partner, BLM
sarah.woodwark@blmlaw.com

Government backed indemnity schemes announced for ‘COVID-19’ positive care homes and Community Pharmacies administering vaccines

We have previously written about the UK government’s plan to set up designated settings for persons leaving hospital who require a care home but have a diagnosis of COVID-19.  This was originally outlined in the Adult Social Care Winter plan released in November, and each local authority was required to put in place plans to set up such facilities.  Part of the set up problems was the willingness of the insurance market to provide cover for these settings. 

In a written statement this week (18 January 2021), the Vaccines Minister Nadhim Zahawi has confirmed provision of a temporary government backed indemnity to provide cover for clinical negligence, EL and PL cover in the circumstances where a care provider cannot secure sufficient cover, or cover at all via the commercial insurance market.  The scheme is intended to run only until the end of March 2021 and, as such, has the feeling of a ‘stop gap’ solution.

Continue reading “Government backed indemnity schemes announced for ‘COVID-19’ positive care homes and Community Pharmacies administering vaccines”

Potential impact of carers refusing to be vaccinated

As shown in the BLM Policy blog of 15 December 2020 (link here), COVID-19 (C-19) compensation claims appear to be gathering some momentum although, at this point, the total number of such claims that have been officially registered with the Compensation Recovery Unit of the UK Department for Work & Pensions remains very low.

As we have noted previously, new and untested questions on standard of care and legal causation would likely arise in any litigated C-19 claim. In this blog, we re-visit certain aspects of these potential questions in the context of vaccinations for care home staff.

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COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

Continue reading “COVID-19: does the response of the regulators call for a fresh approach?”

High Court gives permission for judicial review into care home policies taken at start of pandemic

We wrote at the end of October about the crowdfunded legal challenge being brought against the UK Government in relation to their response to care homes at the start of the COVID-19 pandemic. Yesterday, in a remote hearing, Mr Justice Linden gave permission for this legal challenge to proceed to a full hearing.

The claimants, Dr Cathy Gardener and Fay Harris, are seeking a judicial review of the policies and related measures which had a bearing upon the protection of care homes between March and June 2020. They first formally brought their legal challenge in June, following the death of their fathers (who were both residents in care homes) from COVID-19 in April and May this year. As we have often reported in this blog, tens of thousands of care home residents have tragically died in care homes from (either confirmed or probable) COVID-19, since the beginning of the pandemic.

Continue reading “High Court gives permission for judicial review into care home policies taken at start of pandemic”

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. 

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

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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New COVID-19 measures announced for care homes in England

The Department of Health and Social Care (DHSC) has this week written to English local authorities outlining plans to set up specific homes or units for people being discharged from hospital who are COVID-19 positive or are awaiting a test result.  The DHSC has asked local authorities to identify suitable settings by the end of this week, with a view to having these facilities fully operational by the end of November. 

This plan was hinted at in the Adult Social Care Plan that was published in September 2020, and follows existing requirements for all persons being discharged from hospital to a care home to have a COVID-19 test before discharge, and isolate for 14 days in any case upon admission or re-admission to a care home. 

Continue reading “New COVID-19 measures announced for care homes in England”