Care homes are very much in the news in light of the coronavirus pandemic and the medical and staffing challenges this has created. Each day we hear differing stories regarding PPE (personal protective equipment) and the testing of residents for the coronavirus. As a consequence, it can be confusing with regards to your legal rights in the event of negligence leading to personal injury or worse. So, where do you stand with regards to care home personal injury claims?
Legal obligation for the care and well-being of residents
The first thing to clarify is the legal obligation placed on care homes with regards to the well-being and health of residents (and employees). This is front and center with regards to any personal injury claims although there is a whole range of different issues to take into consideration. Also, while many care homes charge residents for their services, whether living in a local authority care home or a private establishment, you should still receive the same basic level of care.
It is unfortunate but we have seen a significant increase in the number of deaths in care homes across the UK. The coronavirus, which was originally noted as one which would impact the elderly more, swept through many nursing homes without much media attention at first. This seems to be changing and with the introduction of stand-alone care home coronavirus treatment and death figures, the situation is becoming clearer. However, there are a number of issues to consider such as:-
Personal protective equipment (PPE)
In the current environment, with PPE products in huge global demand, many care homes are struggling to provide adequate safety equipment to their staff. Under normal circumstances this may be classed as negligence but what choice do employers and employees have if this equipment is not available? Do they:-
- Refuse to provide help and assistance to residents?
- Improvise with their own PPE equipment?
- Can they afford to wait for the delivery of PPE equipment?
Let’s not forget that COVID-19 is reportedly one of the most contagious viruses the world has ever seen. The actual mortality rate is thought to be less than some forms of flu but because so many people are infected we have seen a rapidly increasing number of worldwide deaths. In many ways those managing care homes are currently in a no-win situation with a number of additional issues to consider:-
- Do they refuse to treat certain residents?
- Should they close their doors to new entrants?
- Social distancing would likely impact the quality of service?
- How do they protect staff?
- How do they protect residents?
One of the main issues discussed at length in recent days is the level of transparency with regards to COVID-19 infections and deaths. There are concerns staff are not being made aware of coronavirus infections in their place of work and families of residents may also have been kept in the dark. This prompts the danger of staff returning home, infecting others in their household, and the potential consequences.
Coronavirus testing in care homes
No doubt when the coronavirus pandemic is more under control and life returns to a degree of “normality” instances of alleged negligence in care homes will be tested in the courts. While the number of COVID-19 related deaths in care homes is currently unknown there is speculation it is well into the thousands. This prompts the question, why have care homes not been testing residents and staff for the coronavirus?
Under the very basic responsibilities of an employer, they have a legal obligation to:-
- Update appropriate training
- Ensure the well-being of their staff
- Provide the appropriate safety equipment
- Offer transparency on work-related risks
There are also the issues of shielding, self-isolation, and the furloughing of employees and the potential consequences of non-action or delays in action.
The concept of shielding is very straightforward; those perceived to be at high risk of serious medical issues upon contracting the coronavirus should currently remain at home for a minimum of 12 weeks. While some companies have offered full/reduced pay to those in shielding, others have reverted to statutory sick pay. The problem for care homes comes when they effectively refuse or persuade employees not to shield even though it is obvious they should be.
Placing pressure on staff to attend work can, in this situation, lead to physical and medical issues as well as potential mental trauma. Might care home management be deemed negligent in pursuing such a strategy?
The issue of self-isolation is a real problem for many people. Official government guidance deems that those showing symptoms of the coronavirus should self-isolate for a minimum of seven days. Others in the household should self-isolate for a minimum of 14 days to cover the incubation period and recovery from the virus. There are no ifs, no buts because the regulations regarding self-isolation have been made publicly available for everyone.
Again, this can cause friction between employees and employers, especially where employers place subtle or obvious pressure on employees to remain in the workplace. Flipping the coin, many sensible employers will err on the side of caution with regards to employees showing symptoms of the coronavirus. Employees may not be so keen to self-isolate especially if their income is reduced or they are transferred to statutory sick pay.
Furloughing of employees
The system of furloughing employees, with up to 80% of monthly income covered by the government, was introduced as a means of protecting jobs going forward. While many companies will wish to retain their own counsel and carry on for as long as possible, a refusal to furlough employees in times of trouble could also be seen as potentially negligent. Loss of earnings and potential mental trauma caused by unnecessary job losses could see some employers land in court.
Care of residents
If we set aside the challenges posed by the coronavirus, as covered above, over the years we have seen a number of common medical negligence claims relating to care homes. Unfortunately, despite tight regulatory activity, medical negligence is not necessarily uncommon although instances of mistreatment are falling. Some of the more common medical negligence claims relating to care home residents include:-
- Pressure ulcers/sores – often leading to infection
- Incorrect medication
- Injuries relating to falls/handling errors
Pressure ulcers and sores
As many elderly residents are bedbound or have issues with movement, pressure ulcers, and pressure sores are fairly commonplace. They occur when the skin of a patient is in contact with their bed for a prolonged period of time. Some medical issues will exacerbate this problem such as diabetes. It is therefore extremely important that residents are “turned” in their beds on a regular basis to avoid these problems (and the use of protective pads is considered). In the event that pressure ulcers/sores appear then medical treatment should be administered as soon as possible.
Issues with the incorrect administering of medication tend to revolve around misunderstandings, incomplete records, system problems, and staff training. While all care/nursing homes will have resident nurses specifically there to administer medication we have seen medical issues and deaths as a consequence of medication errors. It is the care homes’ responsibility to maintain records, train staff, and ensure the appointment of appropriately experienced staff to these very responsible roles.
If you have ever visited a care home you will no doubt have seen the array of protective equipment, handrails, and lifting machinery used every day. Due to the often frail nature of residents, it is unfortunate but there will be accidents and not all of these will be down to negligence. However, that does not remove the responsibility of care home management to ensure staff have the appropriate training, and all equipment is in full working order. It is also essential that handrails and other assistance measures are adequate and also checked on a regular basis.
There is no doubt that the regulatory and the recordkeeping burden associated with care homes has increased dramatically in recent years. Unfortunately, more and more time is spent on administration which can often remove employees from the front line. While the vast majority of carers would prefer to be on the front line helping and assisting residents, this is not always possible.
Flip the coin, if an employer failed to keep their records up-to-date this could, in theory, cause medication issues and serious injuries. Record-keeping is also a very important way in which care home management can demonstrate the actions they took when fighting negligence and potential compensation claims. So, it does look as though there will be a growing emphasis on record-keeping and general administration going forward. Removing many carers from the roles for which they signed up to, caring for residents many of whom will become friends over time.
Claiming compensation for care home negligence
In the event of personal injury as a consequence of alleged negligence in a care home, you will need to prove liability. This will require standard details such as:-
- Date and times of alleged negligence
- Details of medical issues/injuries
- Witness statements
- Photographic evidence
Many people have found it difficult to prove negligence in care homes beyond a reasonable doubt because of the often frail physical and mental state of some residents. They may not be able to communicate the reasons for their injuries or perhaps mistreatment from certain members of staff. This is where CCTV cameras can play a role but on the flip side, there is also the issue of privacy and basic human rights. So, if you believe you have a claim for compensation either for yourself or a family member you may find it challenging. That said; under no circumstances should you refrain from pursuing a perfectly reasonable care home negligence claim.
The reality is that the UK nursing home sector has grown significantly in recent years as the population continues to grow older. Advances in medicine and both residential and nursing home care have extended life expectancy for many people. As we touched on above, when pursuing compensation there can be challenges in obtaining evidence due to the often frail nature of residents. On occasion specialist advice and assistance may be required when pursuing a claim.
However, unless those care/nursing homes providing substandard services are held to account what will encourage any improvements/changes going forward?