SAFEGUARDING


Your Legal Responsibilities


Deborah Nicholson, Head of Crime and Regulatory at Markel Law, looks at some of the legal obligations care homes are facing at the current time and how the CQC is stepping up its activity.


The care sector has faced one of its toughest times over recent months with new challenges in ensuring the welfare of users and employees are protected, as well as tackling lockdown restrictions.


There is no doubt that for many care sector organisations the safeguarding pressures for both clients and users created by COVID-19 has been beyond anything many will have dealt with previously. There is the need to maintain strict infection control procedures to safeguard residents, however as restrictions ease, the prohibition of visitors has to be counterbalanced with maintaining quality of life for the residents.


Providers have been innovative with some using technology to help facilitate virtual visits, whilst others have created drive by visiting pods and used large windows to try and help residents maintain a connection with their family and friends. The Department of Health and Social Care has published new guidance on the arrangements for visiting residents.


This requires consideration of the circumstances of the individual care home (for example, its employee availability, resident demographics and outbreak status) and its local circumstances (local epidemiological risk, presence of outbreaks in the community).


For all care homes in England, this guidance sets out:


1. The principles of a local approach and dynamic risk assessment.


2. Advice for providers when establishing their visiting policy.


3. Advice for providers when taking visiting decisions for particular residents or groups of residents.


4. Infection-control precautions.


5. Communicating with family and others about the visiting policy and visiting decisions.


Personal protective equipment (PPE) has also been top of the news agenda and it is imperative that staff and users are provided with the necessary protection depending on the risks present. The concept of assessing risk needs to be kept under constant review, especially in the middle of a pandemic; this is what is meant by the reference to dynamic risk assessment.


Even where PPE is available, some staff may refuse to work on the grounds that they do not feel safe. Employers have a duty under the Health & Safety at Work Act to offer a safe working


- 16 - “Even where PPE is


available, some staff may refuse to work on the


grounds that they do not feel safe.”


environment so it can be doubly important at the moment to risk assess each staff member for underlying health conditions and any other underlying vulnerability. If the staff member is considered to be low risk and still refuses to work, employment and contractual issues may be engaged.


Additional considerations occur when staff lock themselves down and reside in care homes to help protect residents. This significantly increases the obligations on managers who will need to protect staff around the clock. In these instances, it’s important that careful consideration is given to how this arrangement would work and the risks to residents and staff.


COVID-19 AND THE CQC


Throughout the pandemic, the Care Quality Commission (CQC) stopped physical routine inspections and monitored providers through their risk monitoring processes which are based on reported data, intelligence and previous inspection reports.


The CQC will look closely at health and safety, infection control and risk assessment procedures. CQC can take enforcement action where they feel a safe and proper environment is not being maintained. If an organisation has an inadequate rating, they will be top of the list for inspections.


It is important to note a local authority can cancel a provider’s contract before any CQC investigation has been concluded, therefore it’s vital that legal support is sought as soon as a notice is received. With the right support, an organisation can be supported and turned around before it is threatened with closure.


www.markellaw.co.uk/ www.tomorrowscare.co.uk


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