COVID-19 Risk Assessments - The potential for future civil liability in social care

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07 April, 2020

As Local Authorities face one of the biggest challenges in our lifetimes with regards to the provision of its services to the community and protection of the most vulnerable, the thought of what civil liabilities might be presented at the end of all this may not be at the forefront of minds for those working in social care. The emphasis will be on there being an "all hands to the pump" mentality, working on what resources are available, how assessments and contact can be undertaken, what alternatives are available when the normal routes are no longer an option. However, in order to justify the excellent work being done within social care departments in these difficult times, documenting decisions, noting difficulties faced and clarifying why certain decisions have been taken, will be fundamental to protecting budgets going forward and avoiding criticism and liabilities in the future.

As is to be expected in times of heightened emotion, there have already been a number of issues raised in the press with regards to the provision of social care. There have been refusals to allow medically fit patients to return to care homes without COVID-19 testing for example. This leaves the elderly person in a concerning limbo where the hospital needs to discharge them, but the discharge location will not agree to it. The reasonableness of such a decision will very much depend on the facts of the case, but no doubt these concerns are not helped by the current press reporting of the lack of availability of PPE for care home staff generally. Protection of care home residents, being adults with vulnerable health located in a contained space with significant care needs, is a major concern. Highly restrictive measures may well be required to safeguard the health of those residents, but without documentation of the decision, risk assessments as to whether alternative options have been considered and clarity as to the situation that, that particular location experienced, defending such decisions in the months to come could be difficult. One cannot merely rely on the coronavirus's existence as a justification for all actions.

The lack of available PPE for staff may have contributed to the decision mentioned above not to allow a resident to return, but one asks what consideration has been given to those staff generally. What action has been taken to obtain the PPE, what alternative measures have been put in place to protect those front-line key workers. If staff do not have the PPE to safely go into residents' rooms, is this causing a delay in the identification of residents with symptoms and therefore a delay in the care in-house or the medical care required?

Local Authorities may find themselves in a paradox. If staff have inadequate PPE then to condone them being placed in harm's way by allowing them to visit or care for vulnerable service users who may have COVID-19 may give rise to liability from staff, the allegation being that their employers failed to provide them with sufficient protective equipment putting them in breach of the employment regulations. Conversely, if the staff have inadequate PPE, thereby preventing them from doing their job, this may result in real harm to the Service Users, residents and clients which may give rise to liability and a claim for a failure to provide the statutorily required care. A real conundrum.

Although both the Civil Courts and the Coronial Courts will be alert to the national difficulties that all Local Authorities are facing at present, and potentially the competing advice or interests of those involved, cogent documented rationale and evidence in support of the efforts made to reduce risk to all residents, service users and clients are going to be required.

Helpfully the Deputy Coroner of Birmingham has recently provided some guidance which no doubt other Coroners around the Country will replicate. It states that COVID-19 risk assessments should be undertaken, Generalised COVID-19 policies should be put in place if not already created and arguably most importantly, contemporaneous and detailed records should be made in support of decisions taken. "Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal."

However, Community Care, a trusted social work publication, has recently reported that very few individual Councils responded to their request to share their contingency planning documents for protecting their workforce and services during the COVID-19 crisis. This suggests that such planning does not yet exist in a centralised, documented form. It may be that Councils were awaiting the guidance from the British Association of Social Workers, which was published on 3rd April 2020 with regards to home visits, but Councils will have to adopt this and consider the vulnerabilities of their own individual staff and relevant demographic. Guidance with regards to other aspects of social care are still awaited.

Having regard to the potential risk to the elderly from COVID-19, it is sadly highly likely that there will be an increase in inquests in which the Local Authority may be required to be a Properly Interested Party. If so, the ability to explain decisions is going to be vital. However, involvement with the Coronial Courts is not the only area in which a Local Authority may be required to defend itself. An increase in Human Rights Act and employer liability claims is also foreseeable.

In the current fast-moving environment, in which the safety and care of vulnerable people is a social care department's top priority, taking a moment to step back, consider and document the decision process may mean that the good work being done now can be demonstrated in the future.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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