Following a serious incident, death, or safeguarding concern, care providers often face investigation from multiple bodies at once, including the Coroners Court and Care Quality Commission (CQC) in England and Wales, the Crown Office and Procurator Fiscal Service (COPFS) and Care Inspectorate in Scotland, along with local authorities and/or the police across the UK.
The inquest process in England and Wales focuses primarily on an individual’s death answering the four key questions of who, when, where and how someone came by their death. Care homes may be the subject of Prevention of Future Deaths (PFD) reports in cases involving:
- Falls and inadequate supervision
- Failure to escalate deterioration
- Safeguarding failures.
The purpose of a PFD report is to identify systemic failures, for example, care planning, escalation, communication or medication. The report will be published and become publicly available, potentially creating reputational and regulatory exposure, depending on the findings.
The Fatal Accident Inquiry process in Scotland aims for a similar result at the close of the inquiry. The determination of the Sheriff identifies the person who died, and the place, date and cause of death, but also requires considering in every case:
- Any precautions which—
- Could reasonably have been taken
- Had they been taken, might realistically have resulted in the death being avoided
- Any defects in any system of working which contributed to the death or any accident resulting in the death.
The CQC, Care Inspectorate and other regulatory bodies have greater scrutiny of the care sector in recent years, and this has led to more prosecutions and increased fines. This has been particularly evident where there are serious care failures (such as patient harm, neglect or governance failures).
As well as the potential for a regulatory investigation after an incident, the care organisation may also face a civil claim. The focus in every civil claim is to make a swift decision as to risk and to determine whether the claim should be defended or settled. This approach not only saves legal cost; it assists with reputation management and in claims involving the care sector, it allows carers and managers to focus on their day-to-day duties, rather than unnecessarily engaging with legal investigations.
Unusual features of care sector claims
Whilst the starting point with assessing any claim is determining what happened, in accidents involving care service users it may not always be possible to gain an accurate description, or even the basic facts. Sometimes it may not be evident an accident has happened until injuries become visible sometime later. On occasions there may be a series of incidents, possibly over several days or weeks. Whilst piecing together a timeline of events may take time it is an important part of the investigation, although in some cases it may not ever be possible to ascertain precisely what happened. Needless to say, that in these cases formulating a view as to whether there has been a breach of duty will be challenging.
In many cases contemporaneous documentation is fundamental to being able to support organisations to reach a swift legal resolution. Therefore, good record keeping and version control over generic documents such as risk assessments or training records and materials are key. Whilst it may be possible to secure witness statements from care workers to bridge any gaps in documents, memories have often faded by the time the claim is presented and changes in personnel can make this exercise challenging.
Another feature of care claims which sets them apart from claims affecting other sectors is that accidents which may seem minor, such as a trip or slip, can lead to significant injuries when suffered by elderly claimants. On occasions these may sadly have fatal consequences.
Claims need to be handled with an added layer of sensitivity, particularly if they involve vulnerable parties. Claims may also be emotive for claimants particularly where family members are bringing claims on behalf of a deceased relative.
Claims arising from incidents involving elderly adult service users may not attract significant claims for special damages (such as future loss of earnings). The main aspect of the damages claim is often the award for general damages (pain and suffering), as well as care in some cases. However, even where the financial value of the pleaded claim may not be significant, the quantum investigations may still be complex where for example:
- The claimant can’t describe the injuries they have experienced.
- There is an underlying and unrelated deteriorating physical or mental state of health.
- There are medical complications during the recovery period, often related to being bedbound.
Distinguishing symptoms or injuries caused by the progression of any pre-existing disease or illness and those caused by the accident may require medical expert input, albeit a claimant may not be able to attend an examination.
The claimant’s legal costs can be higher in claims arising from accidents in care homes due to the issues identified with investigating the claim and determining the value. Where there is an inquest, legal costs may also be claimed in certain circumstances, which reinforces the importance of early decision making.
Civil claims and regulatory investigations and prosecutions may create a reputational risk for the organisation, but when handled sensitively and with early decision making, these risks can be mitigated. Good record keeping and effective document retention is key, this may include evidence of audits, independent reviews and spot checks, as well as escalation processes for incidents. Clarity of events and procedures can serve to reassure regulatory bodies, claimants and their families as well as the public.
