The COVID-19 pandemic has left no sector untouched, with the care sector, in particular, facing a devastating impact. More than 66,000 deaths of care home residents in England and Wales were recorded between March 02 and June 12 this year, compared to just under 37,000 deaths for that same time period in 2019, according to the Office of National Statistics (ONS). COVID-19 is listed on the death certificate for almost 20,000 of these, but the BBC reports ONS has suggested that other “non-COVID” deaths could have involved undiagnosed coronavirus cases. This has resulted in regulatory investigations, distraught relatives and potential civil claims.
“We are already seeing a surge in claims for compensation by families who have lost loved ones and are alleging a failure in following safety procedures around COVID-19,” said Chris Newton, partner, head of crime and regulatory at Keoghs, a Davies Group claims service provider. “It has also spiked the interest of regulators with the Care Quality Commission (CQC), which recently carried out around 50 urgent inspections to respond to reports of ‘serious concerns.’”
Newton believes the increase in claims for damages against care homes is likely to steepen, given the huge loss of life. Allegations being made include lack of personal protective equipment (PPE), inadequate social distancing, lack of health surveillance and failure to provide or secure proper care.
While credible claims should be paid out and serious failings investigated, costly litigation and time-consuming regulatory investigations could result in the closure of care homes across the country and the rehoming of residents, particularly if not covered by insurance. To protect care homes, their staff and residents, Newton says there has been calls for government-backed indemnity in relation to COVID-19 care home claims, and case review guidance with respect to regulatory investigations and enforcement action.
“These steps would allow meritorious claims to be paid but, importantly, help the sector to focus on the needs of their residents, prevent potential care home closures and the uprooting of their residents. It would also reduce the risk of the NHS having to take on the responsibility for social care and avoid the courts being overwhelmed through protracted and expensive litigation,” said Newton.
The Coronavirus Act provides indemnity to National Health Service (NHS) staff that are aiding with the COVID-19 crisis, and Newton says a similar provision could be made to help protect those in the care sector. The Crown Prosecution Service (CPS) also introduced an interim charging protocol to respond to the pandemic which he believes should also be extended to the care home sector.
As we edge towards recovery, care businesses are faced with the urgent need to control risks and prioritise safety more than ever. Care and nursing homes have a legal duty to ensure the health and safety of employees, residents and members of the public affected by their activities, but Newton says the pandemic is presenting unprecedented challenges.
“This is against a background of looking after already vulnerable and often frail residents and funding difficulties,” he said. “New challenges presented themselves in the form of staff shortages due to illness or required self-isolation, the use of agency staff who were unfamiliar with the residents and may have unwittingly caused cross contamination between homes, the challenges of obtaining adequate PPE and rapidly changing government guidance on infection control and safety procedures.”
Care homes need to manage these new risks by demonstrating that they have taken all reasonable steps to follow government advice and exercised due diligence to ensure that safe care and treatment is being provided. Homes need to be able to prove that staff were provided with necessary information and equipment in order to carry out their tasks safely. This means proper evidencing and documentation, said Newton.
“Early on in the crisis, the CQC went on record as saying they accept that a more flexible approach to regulation will be taken in the context of this pandemic,” he said. “That suggests that any enforcement action will be reserved for the most serious cases where no reasonable steps were taken to follow guidance, but whether that plays out remains to be seen.”
