June 9, 2020

Protecting healthcare from the legal ramifications of Covid-19

This article originally appeared in Care Management Matters

What do care providers need to think about to protect themselves from repercussions down the line? The critical issues include: insurance, indemnities, the risk of negligence claims (and practical steps to avoid them), and managing the media.

Negligence claims: the risk is high

A lot of businesses are reviewing their insurance cover right now and it is a smart thing to do. Word on the street is that insurers are running scared from Covid-19. The liabilities from the pandemic could potentially bankrupt them.

Operationally, the situation on the ground has been extremely difficult, with the vast majority of care services having difficulty sourcing PPE. Furthermore, the guidance about PPE has been in constant flux and sometimes the national and local guidance has conflicted, causing confusion. The ensuing chaos will probably result in some staff and clients becoming infected. When the dust settles, you may find yourself in the firing line of a negligence claim.

If this happens, you will want to be protected. You should check your insurance cover with your broker now. When you renew, you are likely to find that you struggle to obtain cover for Covid 19-related issues. You may want to start discussions with your broker early so you have time to look at the options.

Government indemnities (but not for social care)

The risk that health and care services will be in the firing line for negligence claims
is something the Government has already contemplated. Its Coronavirus Bill guidance explains that the Government will provide an extra layer of indemnity for healthcare providers. Unfortunately, it appears that the Government does not currently intend to provide any additional indemnity for social care providers in England, Wales or Scotland.

This contrasts with the position in Northern Ireland. The Coronavirus Act specifically mentions both health and social care in regard to indemnities in Northern Ireland, meaning that social care providers there will have the same additional safety net as the NHS. The omission of this specific language in regard to England, Wales and Scotland indicates that care providers here are (again) on their own.

If negligence claims against care providers reach significant levels, the Government may eventually have to agree to provide an indemnity to prevent care providers from being overwhelmed financially. However, it remains to be seen how this will play out and, for now, you will need to do what you can to protect yourself from negligence claims.

Practical protections from negligence

Practically, what can you do to avoid becoming a target? First, it is important to understand what you are protecting yourself from. Tort law is complex but in essence, an allegation of negligence boils down to an assertion that someone failed to take reasonable care. If a claimant threatens a negligence claim, you are likely to get into an argument about whether you took reasonable care in the circumstances.

To protect yourself, you should take as much care as possible in the particular circumstances and be able to prove that you did. For example, if you had difficulty sourcing PPE, you should keep a running record of your efforts to obtain it. What is “reasonable” will depend on the circumstances, so if it was impossible to buy PPE, you should keep a record of your attempts.

Where there is government guidance, you should ensure that your operational procedures and risk assessments cite and follow that guidance and ensure that your staff are putting it into practice. Paperwork is a burden we can all do without, but keeping your risk assessments updated may not only help keep people safe, but also demonstrate that you acted thoughtfully and took reasonable care in difficult circumstances.

You may also want to consider trying to get back-up. For example, if your local CCG infection control team visits, ask them to review and approve your procedures and risk assessments. Confirm in writing that they have agreed that you are following current best practice. This may prove useful later as evidence that you were taking reasonable care.

Testing, testing…

In addition to PPE, the other major issue during this pandemic has been the lack of available testing. The Government has finally rolled out testing for all social care staff and clients. Unfortunately, confusion remains about who should carry out the swabbing (e.g., care homes or district nurses) and how dependable the results are. As a provider, you will naturally want to ensure that your clients and staff are tested. You will also need to take care in regard to how you process the data associated with the test results.

The Government’s guidance states that testing is voluntary and care staff do not have to reveal their test results to their employers. Most staff will agree to be tested and share their results but if they refuse, you will have to balance their data protection rights against your health and safety obligations to your other staff and clients. Asking staff to undertake testing and share their results is likely to be a reasonable management instruction, the refusal of which may warrant disciplinary measures. However, if staff refuse, you will need to carry out a robust investigation to ascertain the reasons for the refusal and whether disciplinary procedures are justified. In some cases, they might not be.

Don’t get papped

Lastly, a word about the media. Some elements of the press love to give social care a kicking. The most harmful stories are the exposés, which are designed for shock value. There have been reports of an increase in the number of journalists trying to gain entry to care homes and speak to care staff. They sometimes tailgate paramedics or other medical professionals to gain entry into a home, asserting that they have authority to do so. Some pretend to be from CQC. This poses a physical risk to clients and staff, a reputational risk to the provider, and a risk to people’s dignity, privacy and other rights under the Mental Capacity Act 2005.

How can you prevent this? During lockdown, this should be easy. However, as restrictions are lifted, it may once again become an issue. It is worth reviewing your media/social media policy. (If you don’t have one, put one in place.) The journalists who carry out tailgating tactics are likely to say that your staff agreed to let them in and that clients or relatives have agreed to the use of the footage. You need to make your staff aware that under no circumstances should journalists be permitted into the premises and you should provide them with clear instructions about what to watch for and what to do if they are approached. Make it clear that only a director has the authority to make that decision. If they need to check an inspector’s identity, they should call CQC.

If a journalist does manage to gain entry or talk to staff without your permission, you should mount a robust challenge. They will want to use the footage but may think twice if it means they will be sued.

Forewarned is forearmed

None of these issues are pleasant and it is unfortunate that providers and managers have to contemplate them. Thinking ahead won’t prevent every problem but it will help limit the damage. When it comes to surviving Covid-19, it is all about damage limitation.

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