Care homes must follow coronavirus guidance or risk clinical negligence, says barrister

A clinical negligence barrister is warning care home staff to “always strive to follow the relevant guidelines” during the pandemic or there could be “serious ramifications”.

The care home sector is on the frontline in terms of caring for people infected with COVID-19, with older people more at risk of catching the disease.

Lionel Stride, barrister in the clinical negligence team at Temple Garden Chambers and Philip Matthews, a paralegal, warn that due to the increasing pressure that care home workers are under “mistakes will inevitably occur” and add “there is thus unique exposure to negligence claims”.

“It would appear from provisions within the Coronavirus Act 2020 that the Government foresaw precisely this situation. Section 11 enables the Health Secretary to provide indemnity for clinical negligence liabilities arising from NHS activities occurring as a consequence of the efforts to combat the coronavirus outbreak.

“This indemnity will act as a safety net where negligence arising from the provision of such services is not already covered under a pre-existing indemnity arrangement. To take the example imagined by s.11(3)(c), if a resident requires hospital admission, the care home may be asked to provide nursing care to the resident; if the hospital does not have capacity to do so due to increased strain on the health system. Such a situation may not be covered by the care home’s insurance, but it may be covered under the legislation as they would be providing care and treatment, which would usually be covered by an NHS hospital, as a direct result of the pandemic,” according to Lionel Stride.

He concedes that the coronavirus pandemic poses “unique clinical challenges which care home staff and management must guard against” with clinical signs of the disease and their severity varying hugely from person to person. Mr Stride calls the move to expand testing to all care home residents and staff in England a “welcome step”. However he adds “the announcement is not a panacea, not least because questions remain regarding the efficacy of current testing”.

He believes that negligence litigation may arise around the issue of how coronavirus entered a care home in the first instance and whether this was due to processes not being followed correctly.

“In these circumstances, it would be necessary to investigate the systems that management established to contain the virus and minimise the spread of infection; this will include probing such issues as the availability of PPE to staff, the availability and use of sanitiser, the ability of staff to self-isolate upon suspicion of having the virus and the implementation of social distancing rules.

“An important secondary issue flowing from such an investigation would be this: what is the applicable standard of care to apply? Arguably, what ought to be considered as being within the scope of reasonable clinical action in the course of normal events is not necessarily the same as that which should be applied in the face of an unprecedented health crisis,” he says.

Mr Stride highlights the case of Pope v NHS Commissioning Board (2015), which concerned the negligence of a nurse in the context of the swine flu outbreak. The patient in this case fell unwell and believed that she had contracted swine flu. She attended a health centre where she was seen by an experienced nurse who examined her and advised her to return home and rest.

Two days later the patient was admitted to A&E, where she suffered a cardiac arrest. She was resuscitated but had sustained brain damage which left her profoundly disabled. Investigations revealed that she had swine flu, which was 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. Under national guidance, any flu-like illness was to be managed as swine flu.

"Had the nurse followed this guidance then she 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 been treated appropriately for swine flu and would have avoided the cardiac arrest.

“Whilst every case is factually specific, and whilst this case considered the actions of an NHS nurse rather than a care professional, the essential principles appears to be that even in times of crisis, the courts approach the issue of the standard of care as they always do: by examining the state of knowledge of the relevant profession at the material time and asking whether a reasonable body of this profession would have acted in the same way. That said, the extent of any strain on resources will undoubtedly impact on the analysis,” says Mr Stride.

He adds: “Ultimately, we can all appreciate the immense pressure that the care sector is under. However, this case illustrates that, even in times of crisis, care staff must always strive to follow the relevant guidance and that serious ramifications might follow when this is not the case.”

He believes a “prudent practical step may be for the care home’s COVID-19 policies to be put up on notice boards and emailed to all staff to remind them of the correct approach to adopt in these difficult times”.