Legal briefing | 19 Mar 2020 |

COVID-19: CQC and Public Health England's response to risk in the residential care home sector

On the 16 March 2020, the Care Quality Commission ("CQC") wrote to all registered health and social care providers about how they were adapting their regulatory approach in response to the COVID-19 outbreak (the "CQC Guidance").

In summary changes they set out included:

stopping routine inspections;
shifting towards other, remote methods of inspection to give assurance of safety and quality of care;
only carrying out physical inspections in a small number of cases, for example where there are allegations of abuse; and
giving extra support to registered managers in adult social care.

The CQC Guidance followed on from Public Health England's ("PHE") guidance released on 13 March 2020 (updated 19 March 2020) on residential care provision for local authorities, clinical commissioning groups and registered providers of accommodation for people who need personal or nursing care ("PHE Guidance").

PHE Guidance details steps care home providers are being advised to take in relation to working with local authorities to establish plans for mutual aid and how they should work with other service providers across local areas wherever possible to avoid disruption.

Although it goes without saying, this is a rapidly changing area of policy and all due care and attention should be given to new announcements from PHE, the CQC and any other regulatory/government bodies as and when they are released.

Inspections

As set out in the CQC's Guidance, their fundamental objective during this period of unprecedented social disruption is to support registered providers and to keep the users of these services safe. Given the burden that a full CQC inspection can place on a registered provider (including managers and members of staff), the CQC announced that from Monday 16 March, all inspections would be halted, save for where it is considered absolutely necessary for the CQC to use their inspection powers.

This will only be in a very small number of cases where there are serious concerns of harm. This ultimately means that all routine rating inspections have been paused. No guidance has yet been provided on new entrants to the market who are currently going through the registration process, although the CQC have been keen to emphasise that a dialogue should be opened as soon as possible with all interested parties.

The CQC was also keen to emphasise that any inspection carried out would not be in the traditional format and, where a physical inspection is still deemed to be appropriate/necessary, providers will now be issued advanced warning that an inspection will take place. This is a completely novel step for the CQC to take and may reduce the CQC's ability to detect more serious offences taking place on a routine basis, and, given that the intention is to only inspect where it is seen as critically necessary anyway, there is naturally a broader question of what kinds of more routine breaches of CQC requirements may be let go, at least temporarily, during this period of disruption. This should be read in the context of the fact that notification requirements are not being reduced at this stage.

Notifications

It should be stressed that there has been no change to registered providers existing notification requirements. Therefore providers are still required to notify the CQC of deaths and of events that stop a service provider carrying on their service ‘safely and properly’ (with the emphasis that providers do not need to notify them of every single COVID-19 related matter).

Generally speaking, it could reasonably be expected that the CQC will take a more lax approach to enforcement where certain non-critical types of notification (i.e. change of director) are not notified immediately, although it should be stressed that the CQC stated that there are no changes to the requirements to make notifications or the system used to make them, so for now, registered providers should try and discharge their obligations in full wherever possible.

PHE Guidance

The PHE Guidance states that care home providers are advised to work with local authorities to establish plans for mutual aid, "including sharing of the workforce between providers, and with local primary and community health service providers, and with deployment of volunteers where that is safe to do so."

As has been widely reported in the media, PHE considers it critical, in order to minimise the risk of transmission to residents, that care home providers review their residential visiting policy. The PHE Guidance itself was not as robust as the approach that has been taken in the last few weeks by some registered providers. In many cases care homes are preventing almost all visits by relatives and other visitors, including contractors, regardless of whether or not individuals are symptomatic. This is rather than adopting the Government's approach of simply reducing and reviewing the same (although this position may well change anyway in the coming few weeks).

This is an area that is likely to be subject to regular review, and, from a legal liability perspective, care home providers may feel there is a real need to put in place more prohibitive restrictions, albeit trying wherever possible to balance this with the fundamental social needs of residents and their families.

In terms of financial support, the Government has implemented a COVID-19 Response Fund, to "fund pressures in the NHS, support local authorities to manage pressures on social care and support vulnerable people, and to help deal with pressures on other public services," noting that registered providers are not able to depend directly on this financial provision (although separate guidance in connection with the same has now been published).

A shared guidance document titled "Social care provider resilience during COVID-19: guidance to commissioners" has been produced by the Association of Directors of Adult Social Services, the Local Government Association and the Care Provider Alliance for local authority commissioners to follow (the "Commissioners Guidance").

The Commissioners Guidance states that, specifically in the context of residential care, it is acknowledged that cashflow can affect care homes, and commissioners can "offer support by paying on the planned support for people in given care homes and the reconciling for any adjustments due to deaths or other factors." It is stressed that this is even more important given the potential volatility of occupancy levels and it gives Commissioners the ability to "agree with local care homes what level of certainty in terms of planned payments will help them through this volatility."

NHS Indemnity

Separately, an additional indemnity (on-top of the existing NHS indemnity) will be put in place as part of the Coronavirus Bill 2019-21 for clinical negligence liabilities arising from NHS activities carried out for the purposes of dealing with, or because of, the coronavirus outbreak, where there is no existing indemnity arrangement in place.

Although this will not support CQC registered providers/individuals directly, this will provide comfort to those NHS employees who may need to directly intervene and work with CQC registered providers where it is deemed necessary. Over this challenging period of time, the specific advice from PHE to the NHS (where sharing a workforce) is to currently only deploy individuals "where it is safe to do so and where indemnity arrangements are in place."

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