How will care homes fare under the law during the pandemic?
Zahra Nanji considers how the Coronavirus Act 2020 will affect privately run care homes
Posted on 11 May 2020
The Coronavirus Act 2020, which came into effect on 25 March 2020 sets out temporary emergency measures to enable public bodies including local authorities, the NHS and the police to respond to the coronavirus pandemic.
Part 1, Section 11 of the Coronavirus Act (Indemnity for health service activity in England and Wales) provides reassurances of indemnity for clinical negligence liabilities of healthcare professionals and covers NHS staff and health and care workers (including medical students and NHS staff like GPs, practice nurses and dentists) arising out of activities undertaken (in the public sector) during the coronavirus outbreak.
The measures appear to be wide-ranging, however, there are concerns that the provisions of the Act will not cover care workers and others in the ‘front line’ who are employed through non NHS routes, i.e., the private sector.
Figures from a 2017 survey found that the care homes sector in the UK is worth around £15.9 billion a year, with approximately 410,000 residents. There are in the region of 5,500 different providers in 11,300 homes for the elderly.
An estimated 95 per cent of their beds are provided by the independent sector (both for-profit and charitable providers).
Local Authorities (LA) generally commission care services from independent care providers. Regional differences mean that costs of a care home place varies, but figures from 2016 found that self-funders paid £846 per week (nearly £44,000 per year) while LAs on average paid £621 per week.
My colleague Beatrice Morgan commented recently: "There are thousands of care workers and care home managers across the country working tirelessly to protect their residents the best they can, often whilst putting themselves at risk. There is no doubt that these are extraordinary and challenging times for all who work in social care. Nevertheless, it is vital that the standard of care provided to care home residents is not lowered during this crisis."
I wholeheartedly endorse Beatrice’s comments: The vital work of caring for vulnerable and elderly individuals in the UK is too often overlooked, and carers will be doing all they can to look after the physical and emotional needs of those whom depend upon them, particularly in this time of crisis.
However, for the sake of those receiving the care provided, and their families, it is also important not to lose sight of the fact that the provision of private residential care is also rooted in a service contract which attracts the same protections as all other contracts formed and performed in England and Wales.
The Consumer Rights Act 2015 (CRA 2015), requires that services be performed with reasonable care and skill and where a service is not provided with reasonable care and skill, this will be a breach of contract.
The Care Quality Commission (CQC) regulates the quality and safety of service provided in care homes. ‘Fundamental Standards’ set a baseline below which care must not fall and include requirements to ensure that residents are treated with dignity and respect and that they receive care in an environment which is clean and safe and that premises and any equipment used is suitable and safe and available in sufficient quantities.
On 2 April 2020, the Department of Health and Social Care, Public Health England, Care Quality Commission and NHS published their guidance for care home admissions and re-admissions during the Covid-19 outbreak: Admission and Care of Residents during COVID-19 Incident in a Care Home, sets out that the care sector will be expected to play a vital role in accepting patients from hospitals during this pandemic, thereby allowing patients to recuperate in non-acute settings and ensuring hospitals have enough beds to treat acutely sick patients.
It is therefore surprising that, despite placing burdens on the private sector to play their part in the fight against coronavirus, the same protections offered by Section 11 have not been explicitly set out to cover those providing private care.
Moreover, the burdens placed on residential care homes are compounded by lack of preparedness for the pandemic caused by lack of governmental planning, meaning that care homes may not be able to comply with their legal duties to service users under consumer law through no fault of their own.
In the Covid-19 Incident in a Care Home guidance, care homes are asked to operate to their full capacity and accept patients once they have been discharged from hospital.
However, the pressures put on the residential care sector to admit residents who are either possibly or confirmed positive for coronavirus should raise significant concerns regarding how care homes can maintain the safety of all residents.
The Government has been criticised for repeated failure to managing testing and tracing for the virus and it begs the question whether by being forced to potentially expose residents to another resident whose Covid-19 status is unknown, whether they are breaching their duty to provide their services with reasonable care and skill.
On 1 April 2020, Public Health England issued revised guidance on personal protective equipment (PPE) including a table showing the PPE required in various settings, including in residential care.
Public Health England guidance states that: “Ultimately, where staff consider there is a risk to themselves or the individuals they are caring for they should wear a fluid-repellent surgical mask with or without eye protection, as determined by the individual staff member for the episode of care or single session.”
Where does that leave workers and residents of care homes where they are unable to access the PPE to provide care to a standard required of them by the law?
Public Health England has provided guidance last updated 6 April 2020: ‘Covid-19: Guidance on home care provision’ which is aimed at local authorities, clinical commissioning groups (CCGs) and registered providers, who support and deliver care to people in their own homes’.
The guidance sets out that if the individual receiving care and support has symptoms of Covid-19, then the risk of transmission should be minimised through safe working procedures.
The guidance goes on to state in respect of PPE specifically that: ‘Care workers should use personal protective equipment (PPE) for activities that bring them into close personal contact, such as washing and bathing, personal hygiene and contact with bodily fluids. Aprons, gloves and fluid repellent surgical masks should be used. If there is a risk of splashing, then eye protection will minimise risk.’
The guidance explains that new personal protective equipment must be used for each episode of care. However, there is no explanation as to what should be done when there is a shortage of the PPE required to work within the guidance. It is difficult to predict that if a complaint were to be made about a service in the future, what would be deemed reasonable in these circumstances.
The residential care homes regulator, the CQC has stated that: “We cannot change our regulations, which are set out under the Health and Social Care Act 2008. But the way we apply the standards during this difficult time will be proportionate and we'll consider the burden on providers of COVID-19. We are also moving to a risk-based methodology.”
The government has confirmed that it will work with commissioners to provide prompt payment for the existing care commitments and additional care provided during the response to the pandemic, recognising that both PPE and staffing costs will be higher than usual.
However, despite confirming this, the Government has been roundly criticised for its lack of preparedness, including its failure to have stockpiled suitable and sufficient PPE which in turn exposes care homes to failing in their contractual duties under the CPA 2015.
The Office for National Statistics reported that from 10-24 April care homes reported 4,343 deaths from coronavirus. Half of those deaths came in the last five days of that period, indicating an accelerating death toll within care homes, whilst deaths in hospital appear to be falling.
Care homes are clearly under significant pressures in provision of their services, not just from stretched staffing and lack of PPE but also as a result of their statutory obligations and lack protection offered by the Coronavirus Act.
There may well be a public inquiry in future and there will be many questions asked by the families of vulnerable people who lost their lives during this pandemic.
What is not clear is who the law will say failed those vulnerable people who died in private care homes during this pandemic.