It is being widely reported that there is a worrying crisis in the Health and Social Care sector being caused by the Covid-19 pandemic.
While the NHS has been a focus from the outset - clear given the "protect the NHS" message – other parts of the sector, particularly Social Care, have taken longer to attract the support needed to save lives. The government has acknowledged that this is now an area of focus and rightly so given the strain the sector is under.
The most recent ONS figures show that the number of coronavirus-related deaths in care homes in England up to 8 May 2020 was 8,314. However, it is being widely reported in the press by experts that the position is likely far worse than documented.
There are also increasing deaths in care sector workers and also, unsurprisingly, increased instances of whistleblowing in the care sector.
This article seeks to highlight the potential liability risks posed by the Covid-19 pandemic to organisations working in the Health and Social Care Sector.
Potential Claims
Employee claims
There is an obvious risk that employees may seek to bring claims against their employers for injuries suffered in the work place. This is likely to be employees who have allegedly contracted the Covid-19 virus.
Organisations will have employers' liability insurance to protect against these claims. It is vitally important that organisations take the following steps:-
All of these things are interrelated - guidance is constantly evolving and will impact what is reasonable as regards the steps taken to protect employees and how reasonable they are. There are no perfect answers in such a fast-moving environment, but the ability to show that business practices were adapting as best practice and guidance does can only help.
Public Liability Claims
These claims will cover general liability to the public and may also provide cover for liability for damages arising from accidental bodily injury. This will usually cover claims where individuals allege that businesses failed to exercise reasonable care in protecting them against or warning them of the risk of exposure to the virus.
Claims will involve visitors and guests. We anticipate these claims may well be difficult to prove for causation reasons, as to which see below. As with employee claims though, tracking guidance, adapting processes as the situation evolves and the ability to evidence what was done - and what was not done and why - will be essential in managing claims.
Patient / Resident Claims
A duty of care is owed to individuals who are being cared for whether that is in a retirement home, a nursing home, or caring for vulnerable persons at their homes. Where a person contracts Covid-19 (or suffers a related injury) there may be an allegation that this was as a result of a breach of the duty of care or 'negligence.'
In this setting, the organisation will most likely have insurance in place to cover any claims by the person to whom care is being provided.
Again, to mitigate these claims it is necessary for the organisations to take the following steps:-
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Contact insurers to confirm coverage and reporting requirements.
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Keep in regular contact with regulatory bodies to ensure compliance with guidelines which will be updating on a regular basis.
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Hold regular meetings with staff to keep them appraised of any changes in practice.
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Keep detailed records of all steps taken to comply with the evolving picture.
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Keep an eye on competitors and what steps they are taking to make sure the likelihood that the approach taken is seen as "reasonable" in the circumstances is maximised.
There is of course a NHS indemnity in place in respect of treatment provided in an NHS setting. The Covid Act 2020 extends the existing indemnity for NHS workers who are working in NHS contracted situations. It covers short term changes to NHS business for example, because retired staff have returned for work, or staff are being deployed in novel areas/situations.
However, at present, there is no indemnity for the Social Care sector (or Healthcare where provided outside of an NHS setting) and professional indemnity insurance has to be secured in the usual way to protect against the threat of claims.
Mounting a Defence
For organisations in the Health and Social Care sector it is no doubt a worrying time. Not only are the organisations using valuable resources to protect their patients and fight the Covid-19 pandemic on the frontline with limited resources, there is also the threat of a tranche of claims being made.
However, there are some points of reassurance.
Breach of Duty
It is our view that Courts and Judges, when considering the alleged breach of duty of care owed by the provider will likely take into account the extraordinary circumstances created by the pandemic and will consider the steps taken by the organisations to comply with their duties, and whether these were reasonable. In short, what is reasonable in "normal" times is not the same as what is reasonable in an environment where staff and equipment shortages are commonplace and there is a constantly changing and often conflicting array of situation-specific guidance to take into account.
Causation
It is incumbent on a Claimant to prove their case. The Claimant will therefore need to prove that they contracted Covid-19 as a result of the Defendant's breach of duty.
Given the virus is so widespread, it may be very difficult to prove where the Claimant contracted the virus. For example, consider an employer's liability claim where a staff member alleges they contracted Covid-19 as a result of the employer's breach of duty or a visitor to a care home bringing a public liability claim. The Claimant will have to show, on the balance of probabilities, that they did not contract the virus elsewhere for example, from a family member with whom they live or a trip to the supermarket.
Insurance
Although we have heard frequent concerns that going forward insurers will simply stop covering Covid 19 related risks or claims, our view is that things are unlikely to work this way. It is likely that the FCA, which regulates the UK insurance market, may intervene to ensure that insurers do cover the risks that the Health and Social Care market (and indeed other markets and sectors) needs covered. Policies should be fit for purpose. Even if that does not happen, the insurance market will still need to do business and if insurers are not offering cover that is sufficiently robust, policies will not sell. It may become more expensive – potentially significantly so – to cover Covid 19 risks, but given some of the issues highlighted above the scope for the insurance market to simply withdraw from this area is far from a certainty. As such, Covid-related issues are in our view likely to remain insurable.
Many of the claims that will arise are in respect of the period from March 2020 onwards (until the virus is contained) and this will be covered by most existing policies held by providers. Insurers will not simply be able to unilaterally change terms mid-policy, although we have heard anecdotal examples of this being threatened and can provide advice to anyone who is dealing with that kind of issue. Policy renewal terms may of course be different and will need to be considered carefully.
Conclusions
Ultimately, the risks relating to claims of the kinds described above, the ability to mitigate them and the protection available from insurances is fact specific. It will turn on organisational reaction to guidance and actions taken to comply with it, the ability to evidence compliance, but also the ability to evidence the reasons for non-compliance where that has happened and how this was mitigated; specifics of insurance terms; the circumstances of the particular claim and again the ability to evidence facts. While, as we have highlighted, the onus is on the Claimant to prove their case, there is much that organisations can do, and that we can help them to do, to reduce their risks.
For further information in respect of the above please contact Bronwen Courtenay-Stamp or Tom Sampford in our Insurance Team here, who are actively advising on all of the issues covered, as to insurance terms, best practice for mitigating risks and managing claims and potential claims.
