Kella Bowers 15 April 2020

Risk and resilience around Covid-19

It’s challenging at the best of times for local authorities to deliver services to the community and protect the most vulnerable in our society – a challenge which has been amplified during the current pandemic, and could leave councils facing civil liabilities the future.

Because of the immediate and overwhelming public health challenge, consideration of what civil liabilities might be presented at the end of all this will not be a priority for those working in social care. Instead, the current focus will be very much on working with the resources which are available and the alternative solutions that can be found to be able to carry out assessments and contact when the normal approach cannot be followed to try and keep people safe in this challenging time.

To justify the resourceful and excellent work being done within social care departments, decisions will need to be fully documented, ensuring the difficulties faced are recorded and there’s full clarity around the rationale for decision-making. This will prove fundamental to protecting budgets going forward and avoiding criticism and liabilities further down the line.

The media spotlight has been on social care provision in recent weeks, which is to be expected in times of heightened emotion. Reports around the lack of availability of PPE for care home staff and concerns about the protection of care home residents have hit the headlines. But care staff are being faced with doing their best in circumstances for which there’s really no precedent for. Protection of care home residents, being adults with vulnerable health located in a contained space with significant care needs, is a major concern.

Highly restrictive measures may well be required to safeguard the health of those residents but without documentation of the decision, risk assessments as to whether alternative options have been considered and clarity as to the situation that that particular location experienced, defending such decisions in the months to come could be difficult. One cannot merely rely on the coronavirus’s existence as a justification for all actions.

Local authorities may find themselves in a paradox. If staff have inadequate PPE, employers may inadvertently find themselves criticised for putting employees at risk by allowing (or requesting) them to visit and care for vulnerable service users who may have COVID-19. The allegation here being that employers could be failing to provide staff with sufficient protective equipment, leaving them in potential breach of employment regulations. Conversely, if the staff have inadequate PPE, which prevents them from doing their job, this may result in real harm to the service users, residents and clients, causing a delay in the identification of residents with symptoms and therefore a delay in the care in house or the medical care required which itself may give rise to liability and a claim for a failure to provide the statutorily required care.

There is some guidance emerging, which goes some way to addressing such concerns. The deputy coroner in Birmingham has recently provided guidance, which we’d expect other coroners around the country to replicate. It states that:

• COVID-19 risk assessments should be undertaken
• Generalised COVID-19 policies should be put in place if they’ve not already been created
• Contemporaneous and detailed records should be made in support of decisions taken

Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal.

In such a fast-moving environment, time is of the essence. Community Care magazine reported last week that very few individual councils had responded to their request to share their contingency planning documents for protecting their workforce and services during the COVID-19 crisis. This suggests that planning doesn’t yet exist in a centralised, documented form, leaving local authorities open to criticism. The civil courts and the coronial courts will be alert to the national difficulties that local authorities are facing, and the competing advice or interests of those involved, but cogent documented rationale and evidence in support of the efforts made to reduce risk is going to be required.

The safety and care of vulnerable people is a social care department’s top priority and should continue to be. Taking the time to step back, consider and document the decision-making process will best position you so that the good work being done now can be demonstrated in the future.

Kella Bowers is head of social services and abuse at Forbes Solicitors

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