By Lionel Stride, barrister in the clinical negligence team at Temple Garden Chambers (with assistance from Philip Matthews, paralegal)
Care homes are still very much under the spotlight where the Coronavirus pandemic is concerned. Just this week, 24 people have died in a Durham care home in one of the worst known outbreaks of the pandemic so far. There have been almost 15,000 deaths reported in UK care homes from Covid-19, with a third of all deaths occurring in care settings, accord- ing to data from the Office for National Statistics. With such pressure on the care industry, it is inevitable that mistakes will be made, which in turn potentially exposes care homes to negligence claims.
It is clear from some of the specific provisions that have been included in the Coronavirus Act 2020 that the Government anticipated such exposure. In Section 11, the health secretary granted permission to provide indemnity for any clinical negligence liabilities that emerge from NHS activities as a result of attempts to tackle the virus. This indemnity provision is in place to provide a safety net to the NHS where negligence arising from the provi- sion of such services is not already covered under a pre-existing indemnity arrangement. An example is provided in Section 11; this stipulates that, should a resident of a care home need to be admitted to a hospital already at capacity, the care home may be asked to provide nursing care to the resident. The care home might find that its insurance does not cover this type of situation but that they are likely still to be indemnified by the gov- ernment because they would be providing care and treatment that would usually be covered by an NHS hospital, as a direct result of the pandemic.
Care home staff and management need to be aware of the unique clini-
cal challenges that the Coronavirus pandemic presents in order to safe- guard their service from users and staff as effectively as possible. This will mean that thorough risk assessments will need to be undertaken and regu- larly updated, with effective measures implemented to minimise the risk posed from the virus. In this respect, one of the obvious difficulties has been diagnosis: for a long time, testing for the virus was restricted to patients in hospital with clear flu-like symptoms. This has no doubt led to greater rates of injection because individuals can present with different clinical signs of the virus and the level of severity can vary drastically. This leads to increased risk of missing a diagnosis where a patient has devel- oped severe complications, having initially presented with mild symptoms.
It was not until testing was eventually expanded to all care home resi- dents and staff in England – including those with and without symptoms – that care home management was better able to track and contain the spread of Coronavirus. This expansion of testing was far from a panacea, however; questions remain as to the efficiency of the current testing. Nevertheless, failure to ensure that there is effective screening of staff and patients, leading to a cluster of cases in certain care homes, may not only give rise to civil but also criminal liability if the care home is in breach of its health and safety obligation (analysis of which is beyond the scope of this article but here is a link to the TGC Health & Safety Podcast addressing these issues: https://anchor.fm/tgc3/episodes/AVOIDING-CRIMINAL- ENFORCEMENT-ACTION–CIVIL-CLAIMS-IN-THE-SHADOW-OF-COVID-19- eeggih).
Care homes could face civil liability if there is evidence that Covid-19 entered a care as a result of processes not properly being followed. Such circumstances will require investigation into the systems that the manage- ment of the care home established to contain the virus and minimise the spread of infection; this will include review of the risk assessment and whether mitigation measures were effectively implemented – i.e., looking into whether staff had access to PPE, whether sanitiser was available to use, whether social distancing measures were implemented, and whether staff were able to self-isolate once they suspected they may have the virus.
It is important to note that the standard of care required, even in these exceptional times, remains unaltered (whether in claims for standard or medical negligence): see the case of Pope v NHS Commissioning Board (2015), which concerned the negligence of a nurse in the context of the swine flu outbreak. In this case, the patient fell unwell and believed she had contracted swine flu. She went to a health centre and, upon being
examined by an experienced nurse, was advised to go home and rest. The patient was admitted to A&E two days later and suffered a cardiac arrest. She was resuscitated but had sustained brain damage that left her pro- foundly disabled. It was later revealed that the patient had swine flu, and that this had been complicated by pneumonia. The patient subsequently pursued the NHS for medical negligence. At trial, the Court ruled that there had been a breach of duty and that this was causative of the claimant’s brain damage. National guidance stated that any flu-like illness was, at the time, to be managed as swine flu. Following this guidance meant that the nurse would have measured the patient’s blood saturation levels, found them to be low and would then have referred and admitted her to hospital. Had the patient been admitted, she would have avoided cardiac arrest because she would have received the necessary treatment.
In this case, even though it considers the actions of an NHS nurse as opposed to a care home professional, the essential principles still apply. Whilst every case is fact specific, the Court will approach the issue of the standard of care as in the usual way: by examining the state of knowledge of the relevant profession at the material time and asking whether a rea- sonable body of professionals would have acted in the same way. It is worth bearing in mind that the extent of any strain on resources (particular- ly in the early stage of the virus) will impact on the analysis. However, now that the pandemic is under greater control, care homes (like al service providers), will need to demonstrate that they have kept up to date with all guidance and preventative measures.
It is worth considering practical steps that care homes can be taking to remind all staff of the guidance that is in place; this might include sending emails out to staff and putting notices up on notice boards to remind everyone of the correct approach to be adopting during these trying times. Further, now that the pandemic is easing but the spectre of resurgence remains, it will be essential to put in place better preventative measures such as pre-entry screening of all patients; regular testing of staff and serv- ice users; limiting agency staff to working at a single care home; ensuring social distancing between service users; and regular cleaning of private and communal areas.
There is no doubt that the care sector is currently under an enormous amount of pressure. We can however deduce from the Pope case that, even during times of crisis, there is relevant guidance that carers must do their best to follow in order to avoid potentially very damaging conse- quences.