Uncertainty ahead for care providers

The Covid-19 pandemic has stretched all parts of the health and social care system to the limit as they have battled with the challenges posed. Within this, care homes have been described by some as an ‘epicentre’ of the disease in the UK. Public, and political, support and respect for the social care sector has never been higher as it has pulled out every available stop to provide the best possible care for service users. However, despite the recognition of the unprecedented challenges, and Care Quality Commission (CQC)’s introduction of the Emergency Support Framework, care providers need to be mindful that the legal frameworks – and the possibility of regulatory scrutiny for failing to meet them – remain in place.

The pressures

Providers have faced a wide number of exacting challenges:

• Personal protective equipment (PPE) – there have been significant issues with obtaining the PPE needed as demand has rocketed across all parts of the health and social care system in the UK and internationally

• Infection control – guidance from Public Health England on required infection controls has evolved frequently as the outbreak has progressed

• Discharges into care homes – although the guidance requires the Hospital Discharge Service to confirm the Covid-19 status of residents during the process of transfer to a care home, in practice this has not always happened

• Testing in care homes – the approach and guidance here has also evolved as the crisis has progressed. Initially, testing was limited to the first five symptomatic residents, and although this has subsequently been extended so that everyone should be tested, there have been practical difficulties and delays in some cases both with testing and receiving results back

• Staffing issues – as staff have fallen ill themselves, or needed to self-isolate as a precaution, there has been increased need for agency staff. Where such staff work across a number of services, this, itself, has been identified as heightening the risk of cross-infection

• Increased costs – care providers have faced dramatically increased costs at this highly difficult time, particularly in relation to staffing, agency costs, and the additional costs of PPE. Joint guidance(1) from the Local Government Association, Association of Directors of Adult Social Services (ADASS) and the Care Providers Alliance indicated that providers would be reimbursed by commissioners for extra costs, but, again, this has been mixed to date.

Despite these pressures on care providers, their regulatory responsibility to comply with fundamental standards ensuring the safety and wellbeing of service users, as well as their health and safety obligations towards their staff, have not changed.

Care Quality Commission

For example, providers must still comply with regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 that relates to the provision of safe care and treatment, including infection control. In a letter to care providers(2) in March, CQC wrote: ‘We encourage you to use your discretion and act in the best way you see fit.’ This could be taken as indicating there will be some leeway in how the regulator assesses compliance during these exceptional circumstances – but the question becomes, how much? When inspection activity resumes, there is the possibility that CQC may make criticisms in inspection reports or pursue enforcement action if they consider that, despite all the pressures they were facing, a provider did not do enough to comply with the applicable guidance. However, it is unclear quite what lies ahead. While some deviation from ‘usual’ standards may be tolerated, where will the bar be set? Further guidance from CQC on this would certainly be welcome.

Mental Capacity Act

Similarly, in a letter written more recently(3)(in May) to ADASS, Mr Justice Hayden, vice president of the Court of Protection, issued a reminder around continuing obligations under the Mental Capacity Act. A concerning emerging issue during the crisis has been relatives seeking to take their loved ones out of homes due to infection concerns, raising mental capacity and best interest issues. In addition, providers need to consider(4) whether changes to a person’s care or treatment arrangements as a response to the outbreak constitute a new deprivation of liberty. Justice Hayden wrote that any belief that deprivation of liberty processes could be deviated from because of the crisis was ‘entirely misconceived’. He noted that there had been a ‘troubling drop’ in Mental Capacity Act 2005 s.21A applications.

Health and safety responsibilities

Along with their obligations to service users, providers must also discharge their responsibilities to staff under the Health & Safety At Work legislation. The issue of PPE is prominent again here, if members of staff feel that they have not been provided with all the equipment they needed to keep them safe. Inevitably, situations could arise where there is a tension between a provider’s obligations towards their service users and towards their staff.

Conclusion

Clearly, the number one priority of the entire care sector remains to deal with the crisis in front of it right now. However, as well as dealing with day-to-day operational issues, providers need to ensure they keep an eye on compliance and have robust audit trails covering the steps they have taken in terms of infection control with risk assessments against the relevant (and changing) guidance; and maintain appropriate documentation around deprivation of liberty authorisations. They would also be advised to obtain legal advice immediately if faced with emergency situations – such as families seeking to remove residents without the necessary authorisations in place, or enforcement action from their regulators.

1 https://www.local.gov.uk/coronavirus-information-councils/social-care-provider-resilience-during-covid-19-guidance-commissioners

2 https://www.cqc.org.uk/news/stories/routine-inspections-suspended-response-coronavirus-outbreak

3 https://courtofprotectionhandbook.files.wordpress.com/2020/05/letter-vp-toadass-4-may-2020.pdf

4 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878910/Emergency_MCA_DoLS_Guidance_COVID19.pdf

First published by Care Markets, June 2020