Judgment in the Judicial Review into government’s care home policy

Yesterday the High Court provided its highly anticipated judgment in the matter of Gardner v Secretary of State for Health and Social Care (1), NHS Commissioning Board (NHS England) (2) and Public Health England (3).

The Claimants, Dr Cathy Gardner and Ms Fay Harris, had sought a judicial review of the Government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes. The High Court found that whilst this took place during very difficult and trying circumstances, the First and Third Defendants only (namely the Secretary of State for Health and Social Care and Public Health England) had broken the law by discharging patients from NHS facilities to care homes.

Such patients were deemed “medically fit for discharge” and did not have any of the recognised symptoms of COVID-19 at the time of discharge from hospital. However Government guidance from the start of April 2020 said no negative COVID-19 testing was required. Sadly either such patients had asymptomatic COVID-19, or were yet to show symptoms, or they caught COVID-19 once in the care home.

Of course not only residents were affected, care home staff contracted the virus also and sadly some of those staff lost their lives due to COVID-19.

Although not discussed directly or dealt with in yesterday’s judgment, PPE for care homes was also in short supply at this time on a worldwide basis with resources in the UK being redirected to the NHS, which of course exacerbated the potential for transmission of the virus within care homes.

Response from Matt Hancock

Families of loved ones who died of COVID-19 in care homes at the outset of the pandemic have been speaking to the press, and their anger is largely directed against Matt Hancock, the former secretary of state for Health and Social Care. In March 2020 Mr Hancock had talked about throwing a “protective ring” around care homes, but in fact it seems that protective ring was focused towards the NHS, prompted perhaps by reports and footage of Italian health services being overwhelmed in February 2020.

Mr Hancock released a statement yesterday expressing sympathy to the families and saying he was reliant on advice from the now defunct Public Health England who did not highlight the role of asymptomatic transmission of COVID-19. This approach was echoed by the Prime Minister at Prime Minister’s Questions this week who said the government was not aware the virus could be transmitted asymptotically at the outset of the pandemic. However the judgment reveals that asymptomatic transmission was certainly being discussed at this time by the government’s medical advisors – for example Sir Patrick Vallance made public comments regarding this as early as 13 March 2020, and asymptomatic transmission of similar Coronaviruses is generally recognised amongst the medical community.

The claimants were not wholly successful in their action – their claims that there was a breach of Article 2 of the ECHR (Right to Life) and Article 8 (Right to respect for family and private life) were not successful.

Our Conclusion

We do anticipate that this judgment and the ensuing publicity is likely to encourage civil claims against the Government. In addition, private providers may also face further claims. Care homes of course were not mandated to take in patients being discharged from hospital, although they were put under severe pressure to do so by the Government.

Some homes did refuse to take patients and closed their doors in March 2020. Those homes that did take in discharged patients could be open to scrutiny and claims from families who now realise that their family member may have contracted COVID-19 as a result of this policy. However, in the absence of specific knowledge to the contrary, it seems unlikely that the Court will deem care providers negligent if they have followed Government guidance.

This article was authored by BLM associate Jennifer Johnston

Is the health and social care sector entering a new lockdown in the form of mandatory vaccinations?

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.

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Personal Data and the Digital Transformation of the NHS

In 2019 the NHS Long Term Plan was published, including the NHS Digital Transformation Plan. It set out the aim of the NHS to change the way in which healthcare is accessed and provided, supplying digital services to patients and digital tools to staff and providing access to joined up patient records.

The COVID-19 crisis has accelerated this transformation and digital developments have been a key part of the response. Most people will be familiar with the NHS App and the technology that has been deployed in tracking and tracing the infection. Anyone watching Chris Whitty’s slide shows will also be in no doubt as to the part that the effective use of data has played in analysing and responding to the emergency.

Against this background, the Department of Health and Social Care has published a policy paper entitled “Data saves lives: reshaping health and social care with data” setting out its vision of the part that data will play in the digital transformation of the NHS, with the declared mission to “ unleash the unlimited potential of data in health and care, while maintaining the highest standards of privacy, ethics, and accountability.”

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The effect of Brexit on the care sector

Since the new EU/UK trade agreement took effect on 1 January 2021, the free movement of labour between UK and the European Economic Area (EEA) has ceased.  Workers arriving from the EU are now subject to the same points based system as workers arriving from non-EEA countries. The system affords exceptions for most NHS workers, however carers in adult social care are not included. This places an additional obstacle for carers wanting to work from the EU to overcome.  

84% of the workforce in adult social care in England is British. 16% is non-British, of this 7% (113,000 jobs) are from EEA countries and 9 % (134,000 jobs) are from non-EEA countries [i].Prior to Brexit, charities such as Age UK and The Care Workers’ Charity wrote about their concerns for the sustainability of staffing within the care sector.  There is a chronic shortage of workers, ONS figures reveal that the adult social care workforce has a (high) vacancy rate of around 8% (equating to 110,000 vacancies)[ii]. Approximately 130,000 new care workers are required each year for social care alone to cope with current levels of demand.  Recruitment and retention for staff in the care sector is hard, with many staff leaving within the first year and the public perception of poor working conditions has led to low recruitment rates.

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Clarification on non-delegable duty of care in clinical cases

In recent years there has been a significant rise in the number of clinical negligence cases involving issues of both vicarious liability (VL) and non-delegable duty of care (NDDOC). These allegations often arise in situations where private companies contract with the NHS to provide NHS services, or where private companies sub contract with medical, dental, or nursing professionals to provide services.

The recently decided case of Jaida Mae Hopkins v Azam Akramy, Badger Group and NHS Commissioning Board [2020] EWHC 3445 (QB) has provided some much needed clarity on NDDOC in these cases and when it may arise under statute or the common law.

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Workforce burnout and resilience in the NHS and social care – Health and Social Care Committee Oral Evidence

The Health and Social Care Committee, chaired by Jeremy Hunt MP, has launched a new inquiry to examine workforce ‘burnout’ across the NHS and social care. The focus of the committee is on workforce planning, including the effectiveness of the NHS People Plan. The level of training needed to meet the demands of the Health and Social Care Sector is also being examined.

With the media’s focus throughout the pandemic being fixed upon the rising number of COVID-19 cases and the mortality rate,  it is easy to forget the impact being felt by frontline workers. The Committee has now heard from a number of key witnesses whose evidence has shone a light on the struggles being faced.

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Counting the cost of mistakes in healthcare – human, financial and political

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.

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Amazon given free access to NHS healthcare information

Back in July a partnership was announced between the NHS and Amazon that would allow Alexa devices to offer health advice, and it was highlighted that this would be of particular use for persons with accessibility needs who would have trouble using a computer or mobile device to access NHS information.  But, The Sunday Times and Guardian newspapers this weekend revealed via Freedom of Information requests that this agreement allows Amazon access to information such as symptoms, causes and definitions of conditions.  Under the agreement, the information can be shared with third parties worldwide.

The NHS and Amazon were quick however to deny that this information included private data regarding individual patients, and any patient data would be anonymized.  Amazon said that it could not build profiles of customers according to their health needs.

In a previous blog we reported on the use of digital devices to assist dementia sufferers and the Tory party manifesto includes a promise to “invest in health data system.”  Certainly, the Alexa device and other similar devices would be useful for people with memory problems, as well as persons with disabilities and access problems, but it’s concerning that this information can be used and shared by private corporations.

Further information can be found here.


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Written by Jennifer Johnston at BLM

jennifer.johnston@blmlaw.com

Tory and Labour migration elections pledges fail to address NHS and social care staffing crisis

A report today by the independent healthcare think tank The Nuffield Trust, highlights the potential staffing risks to healthcare and social care if migration from EU were to fall. Currently, almost 25% of hospital staff and 20% of health and social care staff were born outside the UK. The NHS and social care sectors already have significant staffing shortages and vacancies.  We have highlighted in previous blogs that the demand for  care will increase in the future, and there’s an estimated 100,000 vacancies for staff for the NHS in England alone.

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NHS up for sale… or already sold?

One of the key issues to arise in campaigning for this month’s UK General Election is the future of the NHS and the role that private companies, in particular US-based healthcare companies, might play in that future following Brexit.  Last week, the Labour leader Jeremy Corybn claimed papers he had obtained showed that the NHS was “up for sale”.  This has been denied by the Conservatives.

Figures show that private businesses already have a significant interest in NHS healthcare and services and were awarded almost £15 billion in NHS contracts in the last five years. Additionally, NHS mental health services are dominated by private equity firms which are now estimated to provide nearly 25% of NHS mental health residential places.  The Independent today highlights this issue and in particular the huge financial interests of three private equity firms Acadia, Cygnet and Elysium that have invested significantly in British public healthcare services, in particular in the psychiatric/mental health residential areas.

Continue reading “NHS up for sale… or already sold?”