The message from the Government in their response to the COVID-19 pandemic has been loud and clear: Protect the NHS. However, it has been well-reported in the press that those working in the Social Care sector considered there to be a lack of clear guidance from the Government when it came to dealing with the impact of the pandemic on care homes, particularly in terms of PPE and testing.
The Public Accounts Committee (“PAC”) have now released a report assessing the Government’s approach to Social Care during the pandemic. With a wave of litigation expected arising from COVID-19 cases in care homes we look at the guidance issued by the Government to care homes throughout the pandemic and what the Public Accounts Committee have concluded about that guidance.
On 25th February 2020 Public Health England issued guidance to the Social Care sector on dealing with COVID-19. It was noted that, due to a lack of infection in the community, it was unlikely that anyone receiving care in a care home would be infected. The instruction was the same as that given to the general public: wash your hands; disinfect surfaces; and stay home if you feel unwell. Save for these limited steps the guidance stated, somewhat controversially with the benefit of hindsight, at Part 18: ‘Currently there is no evidence of transmission of COVID-19 in the United Kingdom. There is no need to do anything differently in any care setting at present.’
This guidance was withdrawn on 13 March 2020 and superseded with further guidance. The advice remained that, if neither the care worker or individual receiving the care was symptomatic, no PPE was required above and beyond normal hygiene practices. This guidance was in turn withdrawn on 13 May 2020.
In additional, Public Health England published guidance entitled ‘Admission and Care of residents in a Care Home during COVID-19’ on 2 April 2020. A number of changes have been made to the document since its publication as follows:
- 20 April 2020 – a note added to say that the guidance is being reviewed following publication of the COVID-19 adult social care action plan.
- 19 May 2020 – updated the guidance to add a loss of, or change in, normal sense of smell or taste (anosmia) as a symptom of coronavirus.
- 19 June 2020 – a number of updates were added to reflect the care homes support package announced on 15 May 2020 and the latest advice on testing, and infection prevention and control.
- 31 July 2020 – changed to reflect that self-isolation period for people with symptoms of coronavirus has changed from 7 days to 10 days and added link to recent updated guidance on visiting care homes during coronavirus.
This guidance, albeit with the changes noted above, remains in place today.
Public Accounts Committee’s Report
The PAC’s report is damning and goes so far as to say that the support given by the Government to the Social Care sector was ‘slow, inconsistent and, at times, negligent’. The primary issues raised by the PAC insofar as they relate residential care home settings are summarised as follows:
- There was a lack of clear guidance given to the Social Care sector with regards to critical elements of the pandemic. The PAC criticised the Government for failing to put a plan into place in respect of Adult Social Care until 15 April 2020, despite a level 4 NHS emergency being declared from 30 January 2020. Similarly, it was not clear who was leading the efforts to secure sufficient PPE until around mid-April.
- The PAC described the Government’s decision to discharge patients from hospitals into care homes without testing them for coronavirus first as an ‘appalling error’. Whilst Public Health England stated they only had capacity to test 3,500 people per day at the start of the pandemic, the PAC remained concerned that the discharging policy remained in place even when it became clear that that there were peaks in care homes and that the virus could be spread from those who were asymptomatic. The department have accepted that they would not necessarily make the same decision again.
- Urgent Social Care reform is required to integrate the needs of the social care sector with the NHS. The PAC considered Social Care to have taken second place to the NHS when it came to accessing testing kits and securing reliable PPE for care homes. The guidance provided in the Adult Social Care Plan was for care homes to secure their own PPE, against a background of the NHS’ massive buying powers.
- The PAC raised concerns for those working in care homes and how they were being supported. The PAC considered that the lack of PPE had caused significant disruptive impact across health & social care settings, putting staff at risk and resulting increased absences and stress. The PAC raised questions as to what support was being given to care home staff to ensure they could cope if they were required work on the front line should a second wave of the pandemic hit.
With the wide-reporting of a high number of COVID-related deaths in care homes, Health and Social Care providers may be vulnerable to legal action and we expect to see an influx of litigation in this area. In considering what is required to discharge the duty of care in each case, an assessment of the guidance and policies in place throughout the period of care-giving and compliance with that guidance will be required. This will of course need to be determined on a case-by case-basis, but what would seem clear from the PAC’s report is that there was a lack of support for the Social Care sector when the peak of the pandemic hit.
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