The post-pandemic legal challenges facing care providers

It seems trite to tell an audience of care home professionals that elderly and other vulnerable people have been disproportionately impacted by Covid-19. It is well reported that in the early days of the pandemic, care home residents experienced a significant increase in excess deaths, which has been linked to a variety of factors including a lack of clear government guidance, discharge of patients from hospitals into care homes without testing, and acute Personal Protection Equipment (PPE) shortages.

Worryingly, however, it is becoming increasingly clear that it is not just the residents of care homes who have been disproportionately affected by the pandemic, and there is a growing body of evidence which highlights the impact of Covid-19 on care workers too.

As a lawyer who represents local authorities, care homes and other care providers, I read with great interest the recent news which revealed the extent of the mental health toll experienced by care workers as a result of the pandemic. Research published by the GMB union suggested that care workers were experiencing anxiety levels which were 44% higher than people in other jobs. This comes hot on the heels of separate research by the British Association of Social Workers which suggested that social workers were at risk of burnout and developing mental health issues due to stress and increased workloads arising out of the pandemic.

The twin challenges of charting a care home through difficult and unpredictable waters, coupled with the pressures felt by an already stretched workforce, is undoubtedly putting a strain on the care sector and is exposing care providers to potential claims and legal challenges from residents and staff. Whilst I am sure everyone hopes that the worst of the pandemic is now behind us, it could be the case that the full legal repercussions only become clear over the next few years.

Human Rights Act

The Human Rights Act 1998 serves to protect the basic human rights of all in society by incorporating the rights guaranteed by the European Convention on Human Rights (ECHR) into UK law. The Human Rights Act is particularly important as a means of protecting vulnerable members of society.

Members of the public (and in some instances family members) are able to bring claims (including claims for damages) against public authorities where an individual’s ECHR rights have been violated.

In many cases, the first legal issue which falls to be considered is whether an organisation is a public authority. Whilst there is unlikely to be a dispute that local authority care homes are run by a public authority, the position is not as clear in relation to private care homes and providers. In some instances, it will be possible for members of the public to bring a Human Rights Act claim against a private organisation, where the organisation is exercising functions of a public nature (i.e., they are acting as a ‘hybrid’ public authority. There will be an argument that many registered care providers are carrying out public functions and are thus susceptible to claims under the Human Rights Act.

Starting from the assumption that care providers are hybrid public authorities, there are two recent pieces of concerning news:

1. In March 2021, the Care Quality Commission (CQC) reported there had been a significant increase in the use of Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) decisions between March 2020 and December 2021. In nursing homes, the number of DNACPR decisions increased from 74% of residents to 92% during the first 9 months of the pandemic. A link has been drawn between the unprecedented pressures faced by care providers as a result of Covid-19 and the increased use of DNACPR decisions.

Article 2 of the European Convention on Human Rights guarantees the right to life. Under Article 2, public authorities have duties to adopt an administrative framework which protects life and prevents avoidable deaths. The CQC has reported concerns that during the pandemic care providers may have adopted blanket policies on DNACPR decisions rather than making decisions based on individual circumstances following consultation with an individual and their family. I would be concerned that where blanket policies are in place or DNACPR decisions have been overused, care providers will have difficulties demonstrating they have complied with their obligations under the Human Rights Act, and will be opening themselves up to potential claims and legal challenges.

2. Last month, care minister Helen Whately told the ‘Let’s Talk About Care’ podcast that some care providers were still preventing indoor visits between residents and family members, contrary to the latest government guidance.

Article 8 of the European Convention on Human Rights provides that the state will not interfere with an individual’s private and family life, except where it is lawful to do so. In determining whether interference is lawful, it may be necessary to consider any legislation and guidance which was in place at the time of the decision. Whilst I can appreciate and support care providers wanting to keep care homes and residents safe and Covid free, I would have significant concerns about care providers who apply blanket rules forbidding visits to care homes where this goes against government guidance. This is particularly relevant against the current backdrop of increasing vaccinations and falling infection rates, which may suggest that it is safer for indoor visits to take place.

Current guidance allows care home residents to nominate 2 named visitors who will be allowed to have regular visits, subject to rapid lateral flow testing and use of appropriate PPE throughout visits.

It is worth noting that limitation for the Human Rights Act (i.e. the latest date a claim can be issued at court) is typically 1 year from the date of the alleged violation, although courts have a discretion to allow claims to continue after limitation has expired where it is just and equitable to do so. With this in mind, care providers would be advised to retain details of policies and decisions relating to Covid-19 throughout the pandemic and beyond.

Stress at work

The news that care workers are experiencing difficult working conditions and high levels of stress and anxiety, exposes care providers to an increased risk of personal injury claims arising from stress at work.

All employers have a legal obligation to protect the health of their employees, including a duty to protect their mental health. Employers may have a particular duty to look after the mental health of their staff where they are aware someone has previously experienced stress, or where someone is at an increased risk of experiencing difficulties (due to a prior disclosure or because they are working in exceptionally difficult conditions). It is important that care providers look at the measures they have in place to identify and support their staff during the pandemic, particularly where management may have less oversight of staff due to increased workloads and social distancing measures, which will make it more difficult to pick up on signs of stress and poor mental health.

What next?

The full extent of claims and legal challenges against the care sector remains to be seen. Last year, Care England spoke of care providers struggling to identify insurers willing to cover care homes and providers facing rising insurance premiums in the face of this uncertainty. Whilst the fallout becomes clear, it is surely good news that the government has now confirmed it will provide a targeted and time limited state-backed indemnity to designated care sites which are unable to obtain sufficient insurance cover.

In the meantime, care providers are advised to maintain full records of all decisions and policies which are altered, strengthened or relaxed in response to the pandemic. Such information will be valuable for defending claims or otherwise determining whether providers have acted reasonably and in accordance with government guidance. Plexus Law has developed a free to use Covid tracker which helps organisations to track their policies against changing government guidance - https://plexuslaw.co.uk/covid-19-guidance-tracker-england-scotland-wales-and-northern-ireland/. Our tracker is updated regularly to include changes to guidelines. Care providers who are concerned about their exposure to claims are advised to obtain independent legal advice.

Marlon Ellis is a solicitor at Plexus Law in Chelmsford; he is part of the team, that specialises in sensitive personal injury and abuse claims.