Coronavirus and Social Care – how do providers remain compliant in a crisis?
Last Updated: 12:15, 13th May 2020
On 29th April, it was announced that a third of all Coronavirus deaths in England and Wales are now happening in care homes.
Office for National Statistics data showed there were 2,000 Coronavirus deaths in care homes in the week ending 17 April, which has doubled from the previous week. This brings the total number of deaths in care homes linked to the virus since the start of the pandemic to in excess of 5,000.
In direct response to the crisis, the Care Quality Commission (CQC), as the regulatory body, have already made a number of operational changes in an attempt to both support and ease the burden on providers in these most testing of times. Such measures include:
- Suspending all routine inspections until further notice.
- Informing providers that, where inspections are deemed necessary (i.e. in response to allegations of abuse) then, in all likelihood, they will be contacted beforehand.
- Encouraging Registered Managers to contact their local inspection team for advice and assistance.
- Issuing interim guidance in response to temporary changes being made by the Disclosure and Barring Service (DBS) to DBS applications and processes. This applies to workers being recruited in direct response to the pandemic.
- Suspending the requirement for providers to submit their annual Provider Information Returns during the pandemic
However, notwithstanding these changes, it is clear that most providers already feel abandoned by the Government at a time when they are facing unprecedented challenges in the sector. The increasing number of fatalities, continuing problems with sourcing protective equipment, and some unwelcome media reports, has left some providers feeling exposed to allegations of negligence and potential enforcement action by the regulator.
What can providers do to protect themselves?
For several years now, all providers are under a legal duty to comply with the various standards that are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In the current climate, Regulation 12 (the need for safe care and treatment), Regulation 15 (the need for suitable equipment) and Regulation 19 (the need for competent and sufficiently trained staff) are of particular importance. Equally so, are the requirements that are placed on providers to ensure the health and safety of their staff under the Health and Safety at Work Act (see our Update on HS&E requirements for further information).
Any failure to comply with these requirements will almost certainly result in criminal sanctions and/or regulatory action by the CQC to severely restrict or even prevent a provider from operating altogether. It is, therefore, imperative that providers take into account the following tips in order to remain compliant with the law during the current pandemic:
- Consider the detailed guidance issued by Public Health England and the Department of Health and Social Care regarding admission procedures, how to work safely, and the use of PPE which has been published in response to the outbreak of COVID-19
- Having done so, thereafter review and, where appropriate, amend workplace risk assessments taking into account the vulnerabilities of individual residents and staff so that any significant risks are either eliminated or reduced as far as is reasonably practicable.
- Provide training, even if by distance learning online, so that staff are familiar with this guidance and any amended working procedures.
- Where new staff have started work before the DBS process is complete, record the reasons for this including any measures that are in place to mitigate against obvious risks
- Given the particular difficulties sourcing PPE and testing equipment, follow Government guidelines in attempting to source such items and, in particular, record all attempts made along with any one-to-one advice provided by the CQC in the event specific decisions are ever scrutinised in the future. (As of 11 May, providers should use the Governments new online portal which makes it easier to arrange for the delivery of testing kits so that all symptomatic and asymptomatic staff and residents, who are now eligible for testing in England, can be tested. Such measures are critical to safeguarding the well-being of both groups).
- Continue to make timely reports to the CQC of all notifiable incidents under the regulations. To be clear, whilst there is no requirement to notify the CQC of every individual case of COVID-19, there is a duty to notify the regulator without delay if the disease prevents a service from operating safely by lodging the appropriate form
- Ensure that residents holistic healthcare needs continue to be met and, in particular, following a specific warning by the CQC, ensure that Medicine Administration Records are up to date and accurate.
Although the CQC have sought to reassure providers, by acknowledging the unprecedented demands on the sector, time will tell whether they will maintain such an understanding approach as the pandemic begins to subside. As you would expect, whilst they have said that they will take a proportionate approach to any concerns that are raised against providers during the pandemic, they have stopped short of confirming any relaxation of the regulations.
Once routine inspections restart and, when deciding on a rating, it will be interesting to see whether providers will be unfairly penalised for the decisions which they took in the midst of pandemic, the circumstances of which have never been experienced previously. If so, and bearing in mind that ratings are intended to be a reflection of the service at the time of an inspection, providers should rightly challenge the CQC using their internal appeals procedure.
Similarly, and in circumstances where there are criminal allegations that relate to incidents which occurred during the pandemic, such as a failure to provide ‘safe care and treatment’, it will be interesting to see what yardstick is used by the CQC to determine whether, in their opinion, a provider has satisfied the statutory defence of having ‘taken all reasonable precautions and having acted with all due diligence’ to avoid any offence being committed. Knowing that investigations of this nature often take many months to even begin, there is a serious risk that the CQC will lose sight of what is ‘reasonable’ in one context when compared with another.
It is therefore essential that accurate and contemporaneous records are kept now so that, if questions are asked some months later, this information can be used to justify the actions of providers in circumstances where they are challenging a rating or, in more extreme circumstances, defending a criminal allegation.
Contact our Compliance & Regulatory team today if you have any queries about remaining compliant during the pandemic or in circumstances where you wish to challenge a rating or any other enforcement action taken by the CQC.
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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