Posted by Hazel Phillips, Partner
Your care home as a COVID-19 unit: risks and issues
In the current crisis, we are seeing existing care operators approached by commissioners to operate and manage empty care homes as COVID-19 units. Understandably there is enthusiasm to support this and mobilise quickly.
However, due to the unknowns created by the virus, there are a number of potential risk areas which we would advise providers to consider carefully before pressing “Go”. It is vital to think through each party’s role and responsibilities and how liability would attach in the event of an issue.
Who will hold the CQC registration for the home? Be aware that a blanket indemnity from the commissioner cannot legally be enforced in the event of criminal liability. On a practical point, however the liability is dealt with in the contract, if you hold the CQC registration, you are likely to be first in the firing line if there is an issue. Are you protected?
If you are not employing staff directly, ensure that the contract gives you sufficient oversight and decision-making powers to enable you to operate the service legally. You will need to ensure that you have the ability to request immediate removal of any staff who are not compliant and that you can authorise holidays to ensure staffing levels are maintained.
There are real grey areas here as insurance companies step back from providing cover for COVID-19. This presents risk to providers, particularly in terms of staff contracting the virus and bringing claims. Explore whether the commissioner will provide the insurance and note your organisation on it, instead of having to provide cover yourself.
If the building is being leased by the commissioner, you will need to be clear who is responsible for its maintenance and compliance with fire and health and safety regulations. This is particularly important if you are the CQC registered provider and very relevant to your insurers in terms of insuring potential fire risk.
If commissioners are asking you to arrange contracts with suppliers, be clear about who is entering into the contract (you directly or you on behalf of the commissioner as agent) and how long these will last. If the former, ensure you are protected both in terms of payment and liability.
This is by far the most important area. Ensure any contractual indemnities are clearly and fully drafted and appropriate watertight liability clauses are included to protect you in the event of loss.
We are currently drafting and reviewing management agreements for COVID-19 units. If you need any assistance please contact Hazel Phillips:
07776 241 235 Email us
Health & Social Care
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