Care homes have been at the centre of much of the controversy in relation to COVID-19 in recent weeks; with morbidity rates among the elderly being high and with serious questions hanging over Government support; testing and reporting; the availability of PPE and the severe practical challenges of implementing the necessary control measures.
Understandably, the anxiety of residents, family members and staff has been very high and exacerbated by the restrictions on visits by family members, however necessary those restrictions may have been. As the pandemic is brought under control and the examination of the “lessons to be learned” begins, care homes will continue to be a central part of the debate. With the increasing suggestion that lockdown may soon be lifted and the UK may return to “new normal” working practices, it is worthwhile looking to the future of CQC regulation of care homes.
Major crises or events such as the COVID-19 pandemic are often the trigger for serious policy reviews. This in turn can lead to substantial changes to the way that things are done, and the expectations placed on businesses by their regulators. For example, the recent Grenfell Tower disaster has led to a fundamental review of fire safety regulation, and many regulators owe their entire existence to tragic events.
Given the scale and severity of COVID-19’s impact on care homes in particular, it is highly likely that the CQC will review both its own operations and the businesses it regulates. Care home businesses would be well advised to prepare for those changes, be proactive in learning from the pandemic, and to review their existing systems to identify areas for development. That approach will be the best route to both protect their residents and staff, and to satisfy the CQC of their continual improvement and quality.
What action could the CQC take?
At the time of writing, the CQC has postponed its regular inspection regime, and has moved to an emergency framework based on the principles of:
- Gathering, analysing and sharing information from care homes (using electronic data returns and video conferencing);
- Identifying whether businesses are “managing” or “need support”; and
- Taking action to support care homes that require it.
At this stage, the CQC has clearly set out that they understand the pressures faced by care homes and will only take more formal inspection or enforcement action where strictly necessary to prevent significant harm or abuse. However, it is understood that the first COVID-related prosecutions of care homes are now in the pipeline.
Care homes should not be passive players in legal confrontations which may ensue as a result of COVID-19. There is already evidence of an appetite among care home operators to challenge the Governments approach to supporting and regulating the sector, by way of Judicial Review.
However, once the immediate strain on the sector is lifted, the CQC will face a new context of:
- A substantial backlog of regular inspections to clear;
- A focus on crisis management, advance preparation and incident response systems; and
- Increased political and public pressure to take action (which could lead to overcompensation).
In practice, this could result in the CQC focussing on what systems care homes have in place to react to future crises both in terms of a second peak of COVID-19, or unrelated and more localised outbreaks. Care homes may in future be expected to hold increased stores of PPE, maintain higher levels of staffing, or to demonstrate more robust advance written plans for responding to incidents.
Issues may arise in relation to the provision to care home businesses of PPE which was beyond its “use by” but has been tested and certified by suppliers (or even PHE) to be fit for use at this time. We think that any such use is very likely to be regarded as the care home business doing all that was reasonably practicable, even if the PPE was later found to be faulty. Obviously, this issue would be decided on the facts of the individual case.
Inquests and CQC regulation
Care home operators may be familiar with the inquest process. In short, any unnatural death is referred by law to a coroner for investigation. The coroner will make factual determinations about the cause of death. This can include findings of neglect, or even that unlawful activity has taken place.
At this point in time, the Chief Coroner has reminded all coroners that a death is typically unnatural if it has “not resulted entirely from a naturally occurring disease process, running its natural course, where nothing else is implicated”. As a result, a COVID-19 diagnosis and subsequent death will not, in itself, require an inquest.
However, the Chief Coroner goes on to confirm that there are specific circumstances that will require at least a report to the local coroner, and potentially an inquest in turn. These circumstances include:
- The death of those who contract an illness during the course of their work; care home workers are expressly highlighted as a potential example in the guidance;
- Death in “state detention”; this can include medical facilities that restrict a person’s liberty; and
- Any circumstances where human neglect may have resulted in infection, or where there have been failures in the care provided; the guidance specifically highlights inadequate PPE as a factor.
In short, not all COVID-19 related deaths will undergo further investigation. However, care homes and similar facilities have been expressly identified as operations that are more likely to pass the test where an inquest will be necessary.
In practice, inquests and regulatory behaviour have high levels of interaction and overlap. Regulators will usually attend inquests in person and they are sometimes represented – they will at least review the Inquest’s conclusions. Negative findings made at an inquest can increase regulator interest, or may be used by third parties to persuade a regulator that further investigation or sanction is necessary. Conversely, a positive report at an inquest can be of considerable benefit, and may help reassure your regulator that you have a high level of compliance.
Inquests can be a forum where confrontation occurs between family members of the deceased and care home operators. Families may retain specialist lawyers, determined to get to the bottom of any failings, so that the loss of a loved one is not in vain. Coroners themselves will also want to determine whether they should make a ‘Report to Prevent Future Deaths’. These reports are publicly available and must be sent to a person or organisation who the coroner believes has power to take relevant action. In these circumstances, it is conceivable that a family and care home operator might find themselves in a non-confrontational pose, trying to shine a light on the failings of the Department of Health and Social Care.
Care home businesses should always consider whether to be represented at Inquests. Much good can come from effective representation and in its absence unjustified criticism can be made of care staff, admin employees or the business or all three. Such criticism can have an effect in relation to potential enforcement action or lead to unwelcome and unjustified publicity or both. We feel it is unwise not to be represented at the Inquest.
How should Care Homes react?
Businesses will need to take any potential policy change seriously. The CQC has a wide variety of enforcement powers up to and including the effective closure of a business, or prosecution of individuals. Even away from those extremes, CQC investigation or softer enforcement steps can still represent a real challenge to a business.
In order to prepare properly for that challenge, care homes will need to:
- Review their existing systems and procedures to identify areas that can be improved;
- Design and implement new systems to enable a rapid and focussed response to future crises, including working in partnership with local authority and NHS commissioners; and
- Provide carefully considered and detailed responses to the CQC and other state stakeholders where information is requested, especially where the CQC is undertaking formal investigation or inspections.
Those principles will, most importantly, provide businesses with the best protection for future incidents. In addition, taking a proactive and positive approach will help to persuade regulators that additional inspection or enforcement action is not necessary, allowing business to focus even more of their time and resources on their employees and residents.
Applying these principles to the practical difficulties faced by care homes, key issues will likely include:
- Designing and implementing a safe system of work that protects both residents and employees where standard social distancing steps will be difficult (if not impossible) to maintain;
- Providing a PPE and staff management system that provides multiple layers of redundancy to reduce risk as far as possible; and
- Designing an emergency plan that takes account of the fact that care home residents have significant needs which must continue to be met, even in the most difficult circumstances.
Secondly, in relation to inquests, care home operators must be prepared to engage properly and robustly with the inquest process. Early investigation and appropriate exchanges of information with the coroner’s office is crucial to ensure that the hard work done by care homes and their employees is fully understood. Providing a confused or unclear picture at early stages can lead to significant misunderstandings or misplaced concerns, which can be hard to correct down the line and may even lead to further regulator action if left unaddressed. All inquest should be taken seriously by care home operators, and with the benefit of specialist legal advice.
Beyond Care Homes and the CQC
To the wider healthcare sector, even those who do not fall within the jurisdiction of the CQC, the above warnings and principles are still worth serious consideration. Operations that do not fall within the CQC’s area will almost certainly be regulated by either the Health and Safety Executive, or their local authority.
In recent days, the HSE has confirmed that it considers COVID-19 related safety issues to be within its remit. On the 12th May 2020, the HSE’s Chief Executive Sarah Ablon took part in the government’s daily COVID-19 BBC briefing, and made it abundantly clear that the HSE will be proactively investigating, and will not hesitate to take enforcement action where it considers business are not properly protecting their employees, customers and members of the public.
As set out above, regulators across the board will be looking for pro-active risk assessment and systemic improvements to reassure themselves that further formal action isn’t required. Businesses that take those steps now will reap the benefits of a safer environment for their workers and customers, reduced regulator interaction, and a robust foundation for success in difficult times.
If you have any queries relating to the topics above, please contact Ashfords’ Business Risk and Regulation Team. Our team has specialist lawyers who regularly advise on crisis management, public health issues (including outbreaks), CQC enforcement and inspection and communication with regulators. We also provide services in relation to inquests, including initial advice and investigation support, and full representation at the inquest itself. If you require assistance, please contact Ben Derrington at firstname.lastname@example.org
 For example, the Gangmasters and Labour Authority was created following the death of cockle pickers in Morecombe Bay in 2004, and the Rail Accident Investigation Branch was created after the Ladbroke Grove Rail Crash in 1999.