Sponsor segment - After COVID-19: what’s next for adult social care?

Thursday 22 April 2021

COVID-19 has been one of the biggest challenges the care sector has ever faced.

Irrespective of whether a council owned care home, a privately owned care home or a large chain with shareholders, this pandemic does not discriminate. However, out of the pandemic comes a unique opportunity to review deep-set, ongoing issues within a dysfunctional sector as it begins on the road to recovery and implementing learning from the experience.

More litigation?

Care providers and insurers should be aware of potential litigation in the immediate aftermath of the pandemic.

There are ongoing investigations of care establishments involving independent regulators and government agencies, which may be a prelude to future litigation.

Also, much of the care sector has struggled to find public liability cover for COVID-19, as insurers have been wary of providing cover in light of the significant death rate of residents in care.

Dr Cathy Gardner’s legal action and future claims

In the next few weeks, the hearing for Dr Cathy Gardner’s judicial review into ‘how the government failed to protect care homes’ is due to be listed. Those advising the care sector will be scrutinising the outcome of the Dr Gardner decision.

Dr Gardner has sought judicial review of government policy relating to the decision to discharge COVID-19 positive patients to care homes housing vulnerable residents. She wishes to obtain an explanation of what policies ensured the Government’s ‘protective ring’ around care homes.

The outcome of the hearing may significantly affect those against whom future claims are made and may lead to a change in how such claims are brought.

We may see similar claims, initially directed at the Government over its decision-making regarding COVID-19 positive patients and care homes, with private care providers being brought into a civil action if they were accepting positive patients on government advice.

Care providers and their insurers should be aware of possible litigation brought by bereaved relatives of care home residents who contracted COVID-19. This may be civil claims for breaches of the Human Rights Act 1998, or as regulatory investigations by the Care Quality Commission.

COVID-19 vaccines

Employers within the care sector will also know of recent concerns over  COVID-19 vaccines and their risks. Media reports may fuel the fire surrounding the refusal of many care workers to be vaccinated.

As reported in an earlier article, many care providers this year introduced a policy for new staff to be required to be vaccinated prior to starting jobs.

Some employers have indicated that if staff members refuse (where there are no medical grounds for doing so) they will become ‘unavailable to work’ in frontline care. With this comes potential employment concerns, for example, whether care providers would be justified in terminating the employment of staff who refuse vaccination without good reason.

Adult social care staffing

The biggest and most complex question to answer now is how the sector moves forward. The focus should be on restoring the care sector following the disruption of the pandemic and renewing the long-term plan for the care system. How has the pandemic impacted on the sector? Will there be more demand for domiciliary care? What can be done about employee recruitment and retention?

The staffing shortage crisis was the biggest issue facing the care system before the emergence of COVID-19. The pandemic pushed the fragilities of the sector to breaking point and staff were, and still are, working under immense pressure.

A workforce ‘burnout’ has resulted, which has exposed the fundamental issues of care funding and sector recruitment. Any long-term Government plan to tackle the crisis must address both the workload intensity and the immediate need for recruitment.

One obvious factor that will hinder this process is Brexit, and the new points-based immigration system. This may leave social care providers struggling to recruit overseas staff. The sector relies heavily on EU workers and it will become increasingly challenging to find the estimated 650,000 additional social care workers needed by 2035.

Adding to the issue will be the fact that during the pandemic, the Government called on those who were furloughed or made unemployed to take short-term roles in social care. This assisted in the short-term but was only a sticking plaster over a gaping wound.

Many who took on care roles viewed them as temporary work in an emergency, not an alternative career. The Government’s recent categorisation of social care staff as ‘unskilled’ will have added to this perception. The potential result will be an exodus of temporary care workers once the job market opens up again.

These factors will be priorities during long-term planning for social care funding. In addition to a meaningful investment in training and recruitment, there will need to be a shift in attitudes towards care workers to increase incentives.

There continues to be business interests in adult care, which as a sector, can still be commercially successful. It is hoped that the issues laid bare by the pandemic will pave the way for an effective and sustainable strategy to ensure the safety of those in care, the peace of mind of those needing care in the future, and the wellbeing of carers.

Michelle Penn (michelle.penn@blmlaw.com) is a Partner and Katrina Poole (katrina.poole@blmlaw.com) is a Trainee Solicitor at BLM.

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