The legal implications of COVID-19 for care homes

legal coronavirus

As if the coronavirus crisis hasn’t challenged the care sector enough, care homes across the UK are now facing increased legal claims as a result of COVID-19, with cases being brought against them by employees, families of residents, and the Health and Safety Executive. So, what can care home providers do to minimise the risks of facing a legal challenge on COVID grounds? 

The challenges facing care homes 

As well as the very obvious challenges to minimise infections, such as enabling visitations as per government guidelines, maintaining a rigorous Infection Prevention Control protocol (IPC) and having adequate staffing , there is another serious challenge for care homes that has come to light. There have been a number of reports of legal cases being brought against care homes, either by employees or Health and Safety Executive (HSE) or even residents’ families, on what they perceive to be a failure to deal with the coronavirus crisis in a proper manner. 

One example of this lies with a potential legal case against HC-One, one of the UK’s largest providers, from the families of residents who believe hundreds of COVID-related deaths could have been prevented. Unfortunately, cases like this are not uncommon, with legal proceedings being launched across the country against a number of providers. 

Insurance dilemmas

What makes the issue worse is that at the same time, insurance providers are saying they won’t underwrite their liability from coronavirus, causing a particular problem when a care home’s insurance is coming up for renewal. The BBC recently reported that the result of the lack of insurance for COVID-positive residents is leading to the inability of many care homes to take in residents with coronavirus, leaving them to either remain in hospital or try to seek accommodation elsewhere. 

This is also affecting the government’s original plan for 500 care homes across the UK to be designated solely to providing care for COVID-positive residents. They are currently far short of this target with only 129 such facilities available.. As a result, the few care homes who are purely looking after COVID-positive residents are soon going to have to start turning residents away, as they will reach maximum capacity. 

There has been some relief for such care homes, with the recent news that the government will offer insurance to care homes taking on discharged COVID-patients who might spread the virus. However, with the coronavirus crisis continuing and with no obvious sign of the severity of the situation easing anytime soon, it is clear that something has to be done to protect and ensure the wellness and safety of care home staff and residents, and to minimise the legal ramifications for care home providers. 

What does this mean for care home providers? 

A legal blog, written by Henry Blaxland QC and published by the Garden Court Chambers, looked at the existing legislation on where the legal liability for the COVID-shortcomings in care homes will lie. The article concluded that, although the government demonstrated several failures in its handling of the pandemic in care homes, primarily its inability to get PPE to staff at the start of the pandemic, any liability on itsbehalf is likely to be ‘firmly resisted’. 

It is therefore advisable for you as a care home provider to take every precaution you can to prevent such a claim, this might include: 

    • IPC: Getting in place a watertight IPC plan is a good way to minimise the possibility of any legal fallout in regard to your care home’s response to the coronavirus crisis. This plan should be in line with the CQC’s guidelines, looking at multiple variables, such as staffing, shielding and admissions. 
    • Staff and resident testing: As we well know, an individual is often asymptomatic at the start – or even throughout – of their COVID-positive status. This is why testing everyone in your care home is imperititve to reducing the spread of COVID and thus any legal challenges. 
    • Liase with hospitals: You will need to liase with hospitals when admitting someone from them as to their COVID status. As we’ve already discussed, some care home providers are having difficulties getting insurance for residents with COVID, so you should ensure that admitting patients with COVID is in line with your insurance provisions. 
    • Set responsible visitation guidelines: The government’s current guidelines do not completely prevent visits to care homes, instead they leave it up to providers to set their own policies, as long as they do not compromise the safety of the home and its residents. Ensuring that your visitation guidelines are fair but also minimise the potential risks is key in reducing the legal consequences that your home may face. 
    • Know how to care for residents with COVID 

Unfortunately, the coronavirus crisis is challenging the care sector in more than one way, with the ability to now legally challenge care homes for their handling of the pandemic. If you would like expert advice on how you can minimise the legal risks for your care home, then book a free 15-minute 121 with us.