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Care providers and Covid litigation in a staffing crisis

  • United Kingdom
  • Litigation and dispute management
  • Health and life sciences

11-11-2021

As the nation returns to work the care sector continues to operate in extremely difficult circumstances. There are well over 110,000 current vacancies in the sector and the 11th November deadline for all staff to be vaccinated will, on the government’s own figures, lead to the loss of another 68,000 staff. The situation seems set to worsen as the government announce similar vaccination requirements for front line NHS staff.

For the care sector at least, the ongoing operational crisis of Covid is far from over.

Despite this, time must be set aside to manage the legal risk posed by the pandemic to your ongoing operation.

Your duty to your staff

As a care provider you owe a duty of care in relation to the health and safety of your staff, residents and visitors. The duty is broadly the same for all three groups – to take reasonable steps to keep staff, residents and visitors reasonably safe. The actions and decisions you have taken in the midst of the crisis will be examined in considerable detail in the cold light of day. The documentary evidence required to show that you acted reasonably may never have been created in the first place, or may now be difficult to locate. The people taking the decisions and who are able to justify them may have moved on.

The CQC have reported that the number of Covid related deaths in care homes notified between April 2020 and March 2021 was just over 39,000. Between March and July 2020 at the height of the pandemic the death rate from Covid for social care workers was roughly twice that of the general population and substantially higher than that of healthcare workers.

As well as those staff who sadly died, many more will have become ill, some very ill, and some will have gone on to suffer from long Covid and be unable to work.

As the immediate crisis of the pandemic is over and the country enters a phase of learning to live and work with Covid endemic, employees’ and the families’ of those who died thoughts will turn to the possibility of compensation.

Covid compensation claims

Civil claims will inevitably be brought and if they meet with success many more are likely to follow. A typical claim is likely to be based on allegations of inadequate PPE provision or a failure to consistently enforce Covid specific hygiene protocols during the pandemic itself. It should be borne in mind that employers will be liable if the failure of one of its employees breaches such a protocol and causes other staff to be infected (vicarious liability).

Many of these claims will not succeed, either because of the difficulty in establishing where and how Covid was contracted or because the courts will, hopefully, take into account the extreme circumstances in which care homes were operating and the very real difficulties they faced in terms of supply of PPE et cetera. However, Covid is a potential fatal disease and as such was a very high risk issue for any care provider – the degree of protection for staff that the law will expect to have been in place will be commensurately high and it is almost certainly true that unions will already be considering their strategy in relation to these claims.

The value of these claims will vary. Symptoms that pass in a couple of weeks will not be worth very much, however bad they are, but fatal claims and some of the more severe long Covid cases where staff cannot return to employment will comfortably run into hundreds of thousands of pounds.

You will substantially increase the prospect of defending any such “ historic “claims if you collate and preserve documentary evidence relating to the provision of PPE to staff and protocols and procedures in relation to maintaining Covid hygiene within your organisation. It is an old saying, but nonetheless true, that court cases are won and lost on the documents that can be produced. It is also true that documents that are not deliberately preserved will be lost over time.

The next threat – stress claims

The widespread success of the vaccination program in lowering the numbers of people with Covid mean that the immediate threat to both staff and residents has, if not passed entirely, at least become manageable with Consistent good practice within the care home. However, just as the practical challenges that care providers face are not yet over, neither are their potential legal risks at an end.

The current staffing problems that care providers face, which are likely to be increased with the requirement for vaccination of all staff, coupled with the extremity of the working environment for many of your staff for the last 18 months, pose another substantial risk to their health.

A study on health and care workers’ mental health during the first lockdown period between May and July last year found that 58% of Staff suffered from a mental health disorder during that period. One in five of them met the criteria for PTSD and almost half of them either had clinically significant anxiety or depression.

The ongoing shortages of staff in the care sector will mean that care workers will not be “back to normal “in terms of their work environment and will not be released from the stressors that they have been working under for the last 18 months.

Unlike the risk of Covid transmission, the risk to carers’ mental health is still very real and ongoing. Care providers need to be alive to the vulnerability of their staff, be able to identify carers who are suffering from stress, depression or even PTSD and take steps to protect them from further harm.

The first warning of potential problems almost always comes at line manager level as they are the people with day-to-day contact with the carers themselves. Line managers need to be trained to spot the signs of potential mental health issues (they are not always obvious and very rarely volunteered by the carer) and know how to react, both in terms of handling the carer and reporting the issue up the management chain so that steps can be taken to help the carer recover and protect them from further harm.

Once on notice of a problem, great care needs to be taken as how the member of staff is dealt with. The courts are often willing to accept that it is difficult to identify a member of staff suffering from stress or depression but are not tolerant of organisations that, once on notice, do not act promptly and reasonably in the handling of the issue.

Stress claims are mostly lost, not because the original problem was not recognised but because once it had come to the employer’s attention They failed to respond adequately or, having put in place a plan to help the member of staff with lowered workloads et cetera,then failed to maintain that plan over time.

Again, the creation and retention of contemporaneous documentation, the involvement of HR and appropriate medical expertise are all essential if a civil action is to be defended. Just as with claims arising from the transmission of Covid itself, cases will be lost, not because there was no protocol or plan to deal with the situation in place, but because, in practice, that protocol or plan was not systematically enforced.

It is very likely that we will see greater numbers of litigated cases arising from this sort of secondary impact of Covid rather than from those contracting the disease itself. Stress claims are expensive to defend in terms both his legal cost and management time and where the stress impacts on the claimant’s ability to work long-term, damages can again easily run into six figures.

The problems that the potential civil liabilities arising from Covid present extend beyond the simple fact of the claims and compensation themselves, however. Any form of court action absorbs management time that would be much better spent elsewhere. Hundreds of hours can be spent searching for and collating documents, giving witness statements and attending trial to give evidence. The more cases an organisation faces, the more of the manager’s time will be taken up.

In addition, there are the obvious adverse PR issues arising from having a care providers name linked to litigation of this type. In the end, the care industry works on trust and having your name linked to litigation involving the death or serious mental illness of staff and patients can be extremely damaging.

What can you do now?

So now the worst of the crisis is over what can you do to prevent claims arising or, if not prevent them, minimise the time, effort and cost involved in defending them and increase your prospect of doing so successfully?

In relation to claims arising from the transmission of Covid itself the most important thing to do is to ensure that the documentation showing the decision making process leading up to the development of the protocol for dealing with Covid hygiene and the protocol/procedure notes are collated and preserved.

The next step is to identify and preserve the documents that show that that protocol was actually complied with. Too many organisations are able to produce fantastic risk assessments and method statements but are unable to prove the consistent implementation of them and that is the key.

Just because the documents are all on your system somewhere do not assume that they will be traceable when you need them in, perhaps, two years’ time. Computer systems are changed and even when they are not, documents are cleared off to free up space or are simply lost. In any event, searching for them in several years’ time will take up substantially more time than identifying them now.

Once that has been done the next step (and this is something of a gold standard but your insurers and lawyers will thank you for it) is to ask those key individuals involved in the development, implementation and running of your Covid protocols to record what they did in the form of a statement signed and dated by them. This exercise is well worth an afternoon of your managers’ time. There is no need to be too worried about the content. They should simply record everything that they can remember that’s good and bad, the problems they faced and how they sought to overcome them. Every organisation has a churn of staff each year and even staff that remain in post will have memories that fade year on year. A relatively contemporaneous document will be invaluable If /when you face claims. It is important that such a document attracts legal privilege and we can explain how that can be changed to you.

Dealing with stress claims arising from the past/current working environment follows broadly the same lines.

The risk to carers’ mental health arising from the pandemic is a known risk. Care providers will be expected to have specifically assessed that risk and taken action to minimise the impact of it upon their staff. This process should be carried out and recorded. If you already have policies they should be overhauled to reflect the change circumstances that the last two years have brought about. Once that has been done those policies should be rigorously and consistently applied. In addition, managers at all levels should be aware of the substantially increased risk of mental health issues amongst their teams and be able to identify those staff at risk and act appropriately in response.

Where a problem for a specific member of staff has been identified and a plan put in place in relation to their work practices that plan should be stuck to rigorously. Many stress cases are lost because, although the problem has been identified and a reasonable plan put in place, that plan has, in practice, simply fallen away over weeks or months after the employee returns to work.

All of this looks like an additional burden when management within care providers are already overstretched and understaffed. However, time spent now will save many tens or hundreds of hours that will need to be spent, if and when claims arise.

Stress claims in particular have a tendency to be “contagious“ within any large organisation. Once you have one stress claim within your organisation it is likely that more will follow and so having the evidence required to rebut any claim to hand helps prevent the spread of such claims.

Yes, but aren’t we insured?

It is easy to dismiss the need to spend time on these issues now sheltering behind the thought that your organisation will have insurance, at least against claims brought by employees. Such a thought is likely to prove to be a false comfort. Although insurance, if in place, will cover the legal costs and damages (subject to any deductible that you may have for each claim which may be substantial). The management time and PR costs that claims will incur will be much greater if documents have to be found in several years time and witnesses traced. In relation to the potential for stress claims steps taken now will not only make them easier to defend if they arise but also minimise the chances of them are rising in the first.

Once a claim arises

Whatever effort you put in at this stage there is a risk that you will face claims. A large care provider will almost inevitably face some claims arising from the pandemic. What should you do once you are notified of the possibility of such a claim?

The first thing to do is to seek legal advice quickly and inform your insurer. Often claims can to be dealt with by providing a prompt and thorough response to any allegations of default. It is here that the work done on the preservation and collection of documents and the recording statement will prove itself invaluable.

Claims arising from Covid will be relatively novel in legal terms. The claimant solicitors are likely to be acting on some form of no-win no fee agreement and they will be nervous about the prospects of investing hundreds of hours of their time in a claim for which there is little precedent that will allow them to be confident of succeeding. If you can quickly present a firm rebuttal of the allegations supported by the appropriate documentation it is much more likely that the claim will never reach litigation. In any event, early legal advice will put you in the best position to judge how to deal with the potential claim.

How can we help?

But we would suggest that you do not wait until you have your first claim to speak to a lawyer about this. Eversheds Sutherland’s combination of expertise in the care sector and years of experience in the defence of personal injury claims puts us in an ideal position to discuss with you the potential risks that your organisation faces, the challenges that such litigation will bring, the duties owed to staff and residents, the court expectations of care home operators, the difficulties that claimants will face in establishing liability and the steps that you can take now as a care home operator to maximise the strength of your defence to any claim.

We can also talk you through the collation and preservation of evidence based in terms of documents and witnesses and discuss putting in place a procedure to respond to any claim quickly and effectively, so that you are not on the back-foot here when you receive your first. We would be happy to have such conversation with you free of charge in the first instance.

 

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