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.Continue reading “The care sector, Covid-19 and claims: is litigation unavoidable?”
Our recent blogs have consistently focused on this developing saga as COVID-19 continues and as we as a nation compare ourselves to our counterparts, we are increasingly coming up short. There is a stark message coming through that our most vulnerable have been forgotten: the elderly in care homes, the detained in mental health units and those with learning disabilities.
Despite early Government promises to the contrary, it always seemed obvious that the pandemic would hit care homes (residents, relatives and staff) with some force. A letter dated 22 May 2020 from the Relatives and Residents’ Association (RRA) to the CQC makes very clear the views of the RRA, who accuse the CQC of failing to protect care homes.
The RRA letter describes the following failings on the part of the CQC, and demands action :-
- Inadequate provision of data on care home deaths to the Government. Failing to do so resulted in the Government having inaccurate data and under-estimating the seriousness of the situation.
- Showing a lack of urgency, and instead complacency. For example, the CQC did nothing to rebut the early statement from Public Health England that it was “very unlikely” that care homes would be affected by the pandemic.
- Failing to represent the needs of care homes for PPE, testing and tracing.
- Providing guidance for care homes (the “Emergency Framework) only on 1 May, over six weeks after lockdown was announced, and even then, providing no guidance for care homes on how to deal with anxious families.
- Allowing standards to fall due to the decision to suspend inspections of care homes from 16 March 2020. (The CQC have said they would still arrange an inspection wherever they are aware of “significant risks” such as allegations of abuse, but otherwise, any monitoring is being carried out remotely. We understand that approximately 2000 checks of care homes have not been carried out in the last two months that otherwise would have been.)
On 20 May 2020, the CQC published its first COVID-19 Insight document, said to be the first of its regular discussion documents on key issues affecting health and care.
The full document can be found here.
In the last few days further measures have been implemented by the CQC and Department of Health and Social care to protect the most vulnerable in society who are in receipt of social care. The official guidance can be found here. It has been separated into specific areas of residential living, home care and supported living provisions. The guidance includes points such as:
- Encouraging care services providers to work with local authorities to share information and plan
- Policies in place for outside visitors to minimise transmission
- How to deal with a suspected case of Covid-19 in residents
Some residential settings have taken matters further by banning all outside visitors. This has been a controversial decision as some commentators think it is crucial to “flatten the curve” of infection, whilst others think this would be detrimental to residents’ well being. This is explored further in a Guardian article here.
The scale of the financial provision required for clinical negligence claims, in particular birth injuries, brought against the NHS, has hit the headlines again. For 2019/2020, NHS Resolution needs to collect £718.7 million from its member trusts, just to pay out on maternity cases.
The big numbers referenced by the BBC recently following a Freedom of Information Act request are in fact, readily available to view on the NHS Resolution website, as are the positive steps it is taking to ensure that the biggest claims, i.e. adverse birth outcomes are reported and investigated early, with incentives for trusts to ensure that learning is identified and implemented. All cases are reviewed from a patient safety perspective; with the aim to reduce risk of recurrence and thereby the number of claims.
The statutory duty of candour has been hailed the greatest reform in patient rights in the modern era. It was brought in under the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 as amended, in response to the Mid Staffordshire Inquiry.
The regulation 20 duty of candour requirements are detailed and specific. There is an overriding obligation to be open and transparent, coupled with clear requirements to notify patients and/or their families where there is any unintended or unexpected incident, whether this amounts to an error or not. This notification must be prompt. Whilst the requirements are dependent upon the level of harm sustained, the underlying principles governing the provisions are focussed on ensuring that patients are kept properly informed and that errors and/or other unintended consequences are not ‘brushed under the carpet’.
Recent reports in the media suggest severe financial difficulties being suffered by the UK’s care home sector.
The Advinia Group is apparently under scrutiny from the CQC in terms of its cash flow and financial management. Advinia operates 38 homes in England and Scotland including 22 homes that it took over from BUPA in 2018, and is the UK’s 10th largest care home operator. It has been asked to submit to an independent audit of its finances under the CQC’s market oversight scheme. The Guardian newspaper reported on 6 October that leaked papers it had seen showed Advinia was not generating enough cash to meet capital and interest repayments, and had refused to submit to the independent audit. The CQC notified local authorities at the end of August of its concerns regarding the Advinia Group.
The CQC has today released a review of oral health and dental care provided to those in care homes. The report concludes that this is poorly implemented in care homes. The review is based on 100 visits to different care homes by dental inspectors and oral health specialists.
There are specific NICE (National Institute for Health and Care Excellence) guidelines to cover dental care for persons living in residential care but in the majority of cases these were not being followed. Residents generally had their oral health assessed upon admission, but often care home staff were not aware of the NICE guidelines and had not had specific training on oral health. More worryingly, over half of the care homes surveyed had no policy to promote oral health, and nearly three quarters of the care plans reviews did not cover oral health or only partly covered it.
The CQC comment in the foreword to the report highlights the fact that the elderly of today generally are more likely to retain their teeth than earlier generations. Good oral care is essential for those in care homes to reduce pain and reduce the risk of malnutrition. Oral care was also often not joined up meaning that when emergency dental treatment was required, the homes would call a GP, or 111, or send the person to A&E – thereby placing a strain on already overworked services.
The care sector should carefully consider this report with a view to future policies and management of residents’ oral health otherwise this may be an area that residents and families focus upon in terms of claiming for damages.
The CQC’s report can be found here: https://www.cqc.org.uk/publications/major-report/smiling-matters-oral-health-care-care-homes
Written by Jennifer Johnston at BLM