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David Walton

David Walton

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Implications of Covid-19 for Nursing and Care Homes

Blogs01/04/2020

There is no doubt we are entering unchartered waters with the onset of the coronavirus pandemic. Government guidance is constantly being reviewed and updated. As a consequence Nursing and Care Homes (“Registered Providers”) need to be up-to-date with and must always follow the Government/World Health Organisation (WHO) guidance to ensure the safety of their residents, visitors and employees alike.

Care and Nursing Homes have legal duties under the Health and Safety at Work etc Act 1974 and separately, The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Pursuant to the former, the duty is to ensure, so far as is reasonably practicable, the health and safety of employees, residents, and members of the public affected by their activities. Pursuant to the latter, the duty is to provide safe care and treatment. More on this below .

The starting point for all Registered Providers must therefore be to manage “the risks posed by the coronavirus pandemic” by eliminating the risk of service users, staff and visitors contracting it or if that is not possible, reducing the risk of contraction to the lowest level.

In the case of service users, Registered Providers have a duty to properly manage the care of any service users who contracts the virus. The duty imposed on Registered Providers, so far as service users are concerned, is to do everything reasonably practicable to provide safe care and treatment for service users thereby avoiding their sustaining actual harm or being exposed to a significant risk of avoidable harm. A Registered Provider will meet that duty if it can establish, on a balance of probabilities, that it took all reasonable steps and exercised all due diligence to ensure that safe care and treatment was provided.   

In reality the management of the coronavirus pandemic will not be straightforward and strategies will change as the situation evolves. Registered Providers will need to make decisions based on judgement and good practice. The Government’s guidance for residential care homes can be found here

Registered Providers will need to demonstrate that they have met that duty by following Government and WHO advice at all times and should evidence that with dated, written records which will be essential to proving what was done, when it was done and why it was done.

An important point to be aware of and what should provide Registered Providers with a degree of comfort, is that CQC have already gone on record as saying they accept that a more flexible approach to regulation will be taken in the light of, and in the context of, the pandemic. It is therefore very unlikely that a HSE or CQC investigation will be triggered simply because service users, visitors or staff have contracted the virus. Evidence of much more than that (unusual number of cases with clear evidence, perhaps from whistle-blowers, of a failure to follow guidance) will be required.

Inquests

In the event Covid-19 leads to unfortunate deaths, the Senior Coroner issued guidance on 26 March 2020.

The salient points are as follows:

  • COVID-19 is an acceptable direct or underlying cause of death for the purposes of completing the Medical Certificate of Cause of Death (MCCD).
  • COVID-19 as cause of death (or contributory cause) is not a reason on its own to refer a death to a coroner under the CJA 2009. 
  • The fact that COVID-19 is now a notifiable disease under the Health Protection (Notification) Regulations 2010 does not mean referral to a coroner is required by virtue of its notifiable status. The notification is to Public Health England and there will often be no reason for deaths caused by this disease to be referred to a coroner.
  • COVID-19 is a naturally occurring disease and therefore is capable of being classified as a natural cause of death. There may, of course, be additional factors around the death which means a report of death to the coroner is necessary – for example where the cause is not clear, or where there are other relevant factors. This is set out in the Notification of Death Regulations 2019. There may also be cases where an otherwise “natural causes” death could be considered “unnatural”.

The Coroners and Justice Act 2009 (“CJA 2009”) section 7 provides that a jury inquest is triggered where the Senior Coroner has reason to suspect (amongst other things) “that the death was caused by a notifiable accident, poisoning or disease.

On 6 March 2020 COVID-19 was designated a notifiable disease under the Health Protection (Notification) Regulations 2010 and this would therefore in principle have triggered jury inquests in cases where the death was reported to the Coroner.

However, section 30 of the Coronavirus Act 2020 (which came into force on 25 March 2020) provides:

30 Suspension of requirement to hold inquest with jury: England and Wales 

  1. For the purposes of section 7(2)(c) of the Coroners and Justice Act 2009 (requirement for inquest to be held with jury if senior coroner has reason to suspect death was caused by notifiable disease etc), COVID-19 is not a notifiable disease. 
  2. This section applies to an inquest that is opened while this section is in force (regardless of the date of the death).

The position therefore is that where a person with COVID-19 died before 25 March 2020 and their inquest was opened before that date, there will need to be a jury. If the inquest was opened on or after 25 March 2020 it can proceed without a jury. There will be exceptions, for example where the death occurs in custody and the deceased, whilst suffering from COVID-19, dies an unnatural death.

As is often the case in our work space, each case must be approached on its own facts.

Practical Steps

NHS England has confirmed that Covid-19 is a notifiable disease. Registered Providers will need to check their policies of insurance and possibly seek external advice as to whether coronavirus is covered in the event of an incident which may potentially lead to a civil claim, a Regulatory investigation or for other matters such as business interruption.

Registered Providers must ensure good practice that meets the requirements set out in the Health and Safety at work etc. Act 1974 and The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This will be achieved by undertaking and documenting a risk assessment in relation to general risks around Coronavirus and specific risk assessments arising out of individual cases as and when they arise. The goal is to provide safe care and treatment to service users at all times and to do everything reasonably practicable not to expose staff and visitors to the risk of contracting the disease.

Registered Providers should monitor the risks posed to those likely to be at a higher risk. This includes anyone with pre-existing health conditions, those with weak immune systems, and pregnant members of staff. Further steps may need to be taken to reduce the risk to these individuals.  

Staff should be reminded of general hygiene rules, such as regular hand washing and use of antibacterial items, which the available advice suggests is the best way to avoid the transmission of the virus. Dispensers should be installed in accordance with an assessment of where they are needed. Staff 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 in these situations. If there is a risk of splashing, then eye protection will minimise risk.

There should be regular and effective communication with staff regarding Government advice and the approach the Registered Provider is taking. For practical reason that will probably be given orally but where possible must be backed up in writing as an aide memoir and as a record.

There should be a robust management plan to ensure business continuity in the event of a severe outbreak.

Key points of contact, both internal and external to the business, should be set out and communicated to those who need them and instruction given as to the circumstances in which those contacts should be used. Primarily these will deal with day-to-day care and management of service users and staff but should also set out points of contact in the case of an emergency, a severe outbreak etc. This document should be focussed and succinct.     

These are unique and demanding times for the whole world. Society is hugely appreciative of the commitment of everybody working on the front line to fight this pandemic and protect our loved ones. Care and Nursing Home professionals are on that front line. Perhaps the most important message of all in this blog is to record the appreciation of those outside of the care profession for the work they do, the commitment they show and their endless dedication to others. 

For more information please contact David Walton or Rekha Sharma.