Understanding the legal issues arising fromCovid-19

Tom Lumsden, a partner at commercial property specialist law firm CooperBurnett LLP

examines the legal issues for care homes arising from the ongoing coronavirus crisis.

It is stating the obvious to say that the effects of the Covid-19 outbreak have been, and will continue to be for some time, challenging for UK businesses. This will especially be the case for the care home sector for two principal reasons. Firstly, because most care homes comprise buildings in which there are numerous vulnerable residents who are elderly or particularly susceptible to the virus and secondly, in order to function properly, most care homes require large numbers of staff. The concept of social distancing is therefore impossible to achieve in a care home setting. In addition it is virtually impossible to operate a care home in a total bubble sealed off from the rest of the world, as there will need to be necessary contact with people from the outside world in terms of food and medical deliveries, GP visits and so on. It would usually be impractical for staff to live on-site permanently, even if they wanted to do so.

Even those quick-thinking care home operators, who may already have prepared detailed and well thought out business continuity plans including what to do in the event of a pandemic, will have found their plans stretched to the limit. Those care home operators who have given little or no thought to business continuity plans will be suffering badly. On a practical level, there have been

reports of some smaller care homes having problems with food deliveries and not receiving any meaningful advice from the government or other sources. government advice has suggested there should be mutual aid between care homes and local authorities, although how this will work in practice remains unclear.

The issue of adequate protective personal equipment (PPE) continues to be problem. Some care homes appear to have received equipment that is a few years past its expiry date, although the CQC confirmed in March that at least 300 fluid-repellent masks were to be issued to each care home.

Those measures may well be far too late. Furthermore, the government’s advice stated that if neither the care worker nor the individual receiving care and support is symptomatic, then “no personal protective equipment is required above and beyond normal good hygiene practices.”

Given the fact that frontline doctors and nurses in NHS hospitals are becoming infected when wearing the most basic protective equipment, that seems bizarre. Why should care home

Those care home operators who have given little or no thought to business continuity plans will be suffering badly


staff dealing with vulnerable groups not have proper PPE protection? The lack of adequate testing has also caused problems in terms of staffing. Care home workers have historically been paid low wages for a job that is challenging, stressful and one that requires considerable skills. The lack of adequate testing has resulted in some care home workers deciding to self-isolate when they become ill, in order to avoid infecting the residents or their colleagues. The lack of testing is resulting in unnecessary staff absences since those who may just be suffering from a common cold are staying at home out of caution.

Covid-19 and contracts So how does the law deal with pandemics? In short, it does not. From a legal point of view, there is no one statute or legal rule that could adequately deal with a pandemic such as Covid-19 although of course the government has brought in legislation in the form of the Coronavirus Act 2020. The Act tries to cover the various legal changes that have made headline news in recent weeks but, as with any legislation that is rushed through Parliament, there are bound to be areas that have yet to be considered. One key question is how the outbreak affects parties’ contractual obligations. The starting point is, once a contract is entered into between parties such as • May 2020

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