Covid-19 – impact on the care sector

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COVID-19 – impact on the care sector

Published 20 April 2020

With the virus spreading at a rapid rate, the wider implications are only beginning to be reported more fully. Research from the Office for National Statistics highlighted that more deaths had taken place in care homes than anywhere other than hospitals. They are not currently included in the official death count released by the government. This has prompted the CQC to record the number of deaths in the adult social care sector from confirmed or suspected cases. Further examples of care homes having as many as 15 deaths due to Covid-19 are now being widely published.

The Care Sector has the unenviable task of looking after the elderly and most vulnerable during this incredibly difficult time. This article will consider the recent changes made by the Government to the legislation and guidance governing care homes, the issues facing the sector and what can be done to keep patients, staff and services safe.

The Legislative Picture

The CQC

The CQC have been proactive and sent numerous updates to providers in an attempt to reassure them during these incredibly difficult times. From 4th March the CQC amended their approach and established 3 key principles:

“1. We will be focusing activity where it is needed most to ensure people receive safe care – this means concentrating on those areas where we see that the risk to the quality of care is the highest and where we can make the biggest difference.
2. We will support providers by looking at how we can act flexibly and proportionately to reduce the asks that we make of you – including reducing what you need to do to prepare for inspection and looking at what we can do to limit our need to be on site.
3. We will honour our duty of care to our colleagues at CQC.”

Following the rapid spread and the severity of the outbreak in the UK, these principles were further reviewed and inspections were immediately ceased from Monday 16th March for the duration of the pandemic. The CQC took the opportunity to emphasise the following to providers about the way in which care could be provided:

“We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit.”

It is not clear how CQC will respond to complaints once the pandemic subsides and providers should remember that the same regulatory standards apply with the CQC having final discretion. Whilst inspections have ceased, providers should still notify the CQC of deaths and of events that stop them carrying on their service “Safely and Properly” (Regulation 18).

Finally, whilst not a legislative change, the CQC have encouraged providers to use them as a support for registered managers – and they have offered their inspection teams as a source of advice and guidance. This may be viewed with scepticism by some as it invites the Regulator into the care setting and could potentially expose other issues, but it may also provide some reassurance to providers trying to navigate through unchartered waters.

The HSE

The HSE provided guidance on 8th April 2020 as to how and when coronavirus incidents are reportable under the Reporting of injuries and Dangerous Occurrence Regulations (RIDDOR). They have set out three circumstances when notification is required:

1. An unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence. While the example provided by the HSE (a lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed) is unlikely to be relevant in a care setting, there are other possibilities including, for example, the inadequate control of clinical waste from an infected patient.
2. Where a health care professional is diagnosed with COVID-19 after treating patients with the disease and there is reasonable evidence that it was caused by exposure at work, this must be reported as a case of disease
3. A worker dies as a result of occupational exposure to coronavirus.

This guidance will undoubtedly cause providers some concern, in particular when trying to determine what constitutes a “a possible exposure” while providing care. RIDDOR reports should be considered very carefully and it may be necessary to seek advice as to what is reportable in view of the potential implications for providers. Depending on the underlying circumstances, registered providers may have additional obligations when things go wrong, as the duty of candour will still apply.

The Challenges

The sector faces a number of challenges to keep patients and staff safe during this exceptional time. While this is not an exhaustive list, they include:

• PPE – or lack thereof. With reports of a shortage of supplies in some areas, how can the sector provide appropriate PPE in order to protect staff if supplies have been exhausted? And what can be done without? The table provided by Public Health England may assist, as well as these recommendations
• Care Planning and Risk Assessments – personalised care plans have never been more important than they are now, but what should be included and how frequently should they be updated? What needs to be included – DNRs? Treatment Escalation Plans?
• Staffing – how can the sector ensure that staff are appropriately self-isolating? What is the approach with agency staff? If a number of staff are self-isolating how do providers ensure they are providing safe care and treatment (Regulation 12)? How do providers ensure they look after their employee’s mental health?
• Shielding the “extremely vulnerable” - The definition of ‘extremely vulnerable’ is contained in a guidance note that was updated on 30 March 2020, how can this be done in practice, and what happens if patients don’t want to be shielded?
• Social distancing – particularly for those who lack capacity (for instance if they have dementia). Coupled with that, how do providers manage families, outside agencies and staff – how can all of this be done with limited space, social distancing and an already stretched workforce?
• Mental Capacity and DOL’s – what if a resident has capacity and refuses to adhere to social distancing?

Advice and Support

With the CQC encouraging providers to “use your discretion and act in the best way you see fit” it is clear that creative solutions are required to manage the challenges. The following though should be borne in mind by providers as they adapt to the current crisis:

o Stay on top of the guidance from Public Health England and other relevant sources;
o utilise the support provided by the CQC and partner agencies where possible;
o keep a paper trail of decisions and the rationale behind those choices;
o keep assessing the risks, not only to patients, but also to staff and others whom you may come into contact with and updating risk assessments where necessary; and
o ensure reporting is timely and accurate.

To find out more about the CQC regulatory approach to Covid-19 click here.

Authors

Fiona Gill

Fiona Gill

London - Walbrook

+44 (0)20 7894 6410

Toby Roche

Toby Roche

London - Walbrook

+44 (0) 20 7894 6230