Care homes and Covid-19: current issues

06 July 2020

The current pandemic poses particular problems to care home managers and local authorities who make such placements. It raises questions about their legal obligations and the rights of care home residents in the face of this health crisis.

The scale of the emergency can be seen from the judgment of Hayden J in BP v Surrey CC [2020] EWCOP 17 at [27]:

It strikes me as redundant of any contrary argument that we are facing "a public emergency" which is "threatening the life of the nation", to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing. The striking enormity of it has caused me to reflect, at considerable length, before committing it to print. Article 5 protects the fundamental human right both to liberty and, it must be emphasised, to security. It requires powerful reasons to justify any derogation. Those reasons must be confirmed on solid and compelling evidence before any court finds them to be established. The spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying comorbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential.

Regulation of care homes

A care home is defined by s3 of the Care Standards Act 2000. Its residents occupy their rooms be virtue of licences. Care homes are regulated under the Health and Care Standards Act 2008.

The majority are now privately owned, although some are still owned by local authorities.

Possession proceedings

CPR PD 51Z, which was introduced in March to manage Covid-19 related possession proceedings, prevents any claims for possession being progressed in respect of such licences until the end of August 2020.

Care home residents and deprivation of liberty

Many residents (eg those with a physical health deficit) will have arranged their own accommodation. Others will have had their accommodation arranged under ss18-19 of the Care Act 2014 following an assessment by a local authority under s9 of the Care Act 2014.

Many residents will lack capacity in which case their occupation may well be the subject of a Standard Authorisation as the arrangements in the care home will amount to a deprivation of liberty.

Residents who lack capacity cannot enter into a licence agreement (in most cases) and the agreement has to be made on their behalf, eg by a local authority or by someone acting under a Lasting Power of Attorney.

A person who lacks capacity and who is deprived of their liberty can challenge the Standard (or Urgent) Authorisation under s21A of the Mental Capacity Act 2005, with the help of an RPR, relative or other advocate. Even without Covid 19 local authorities face many such challenges.

Covid 19 has meant that many care homes have introduced more restrictive regimes for all residents, regardless of any conditions on an individual’s Standard Authorisation. The most common additional restriction is a total ban on visitors. This is obviously sensible but can be distressing for some residents, particularly if they are unable to understand the measure. Another common additional restriction is a total ban on leaving the care home.

In BP v Surrey CC, a case argued on human rights grounds, Hayden J held these sort of measures were justified in the current circumstances. In BP the family wanted their relative to return home because of the additional isolation caused by the Covid 19 regime. This was found not to be realistic on the facts.

This should be compared with VE v AO [2020] EWCOP 23 where a terminally ill woman was allowed to return home to die when her family would normally have been excluded from the care home at her death because of concerns about spreading infection.

These cases show that each case will have to be considered carefully on its own facts. While additional restrictions are unlikely to amount to breaches of the Human Rights Act 1998, it may well be that an individual case special arrangements will need to be made. Careful thought must be given to each person’s circumstances.

Government Covid 19 guidance for adult social care

The situation with Covid 19 has been fast-moving and there has been a lack of definitive government guidance for care homes.

The government has issued ‘COVID 19: Our action plan for adult social care’. This has 4 themes:

  • Controlling the spread in care homes
  • Supporting the workforce (there is also separate guidance on this)
  • Supporting independence of residence (ie support for those who receive care in their own homes)
  • Supporting local authorities and care providers

There are clear problems with  the first theme of controlling the spread of Covid 19 in care homes because of the well-reported pressure on care homes early in the pandemic to accept discharges from hospital of possibly infectious residents.

There is obvious scope for negligence claims in due course if other residents were unnecessarily infected. The same is true from the failure to provide adequate PPE. Similar issues also arise as regards protecting the workforce. Care homes have a duty of care to their staff and their residents. However, in many cases (eg the supply of PPE in the early days) these matters were out of the hands of the care home managers.

It seems highly likely that claims will follow eventually once the position becomes clearer.