Even before the current pandemic, the healthcare sector faced daily financial and logistical hurdles. Now, not only do you have an unprecedented challenge in responding as a sector to an unexpected global event, but at an operational level you must also keep up to date with almost daily revisions to procedure, amended guidance and evolving regulatory approaches.
To help understand the procedural and regulatory changes which have been (and continue to be) introduced, we highlight below some recent headline developments which we consider will influence on a practical level how you respond to the continuing spread of the disease.

Statutory Notifications
Although the Care Quality Commission (CQC) and Health and Safety Executive (HSE) have suspended routine inspections, both organisations have issued guidance detailing the reporting requirements of COVID-19.

• CQC: you do not need to notify individual coronavirus cases, and need only notify if coronavirus affects the day to day running of your business in that you cannot safely meet the needs of your service users or a utility, fire alarm, call system or other item of safety equipment fails for more than 24 hours. Non-COVID-19 notifications should continue to be submitted, “without delay,” in the normal way.

• HSE: in cases of employee infection, RIDDOR reports should only be submitted where:
an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus;
a worker dies as a result of occupational exposure to coronavirus; or
a worker has been diagnosed as having COVID-19 (supported by a registered medical practitioner’s diagnosis) and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

The requirement for an actual diagnosis by a medical practitioner before a case can be considered as potentially reportable is helpful. However, there is still room for interpretation over what amounts to, “reasonable evidence,” that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor as to the circumstances of transmission (which may or may not be available, or forthcoming).

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. It accepts however that as the prevalence of the disease increases, it will be difficult for employers to establish whether or not an infection was contracted as a result of their work.

Going forwards all employers with open workplaces need to remain updated and alive to the potential need to report diagnosed cases.

Inquests
The spread of COVID-19 has had a significant impact on the court system. Mirroring procedural changes introduced within the mainstream judiciary, the Chief Coroner has produced a number of Guidance Notes in an effort to both limit the number of physical hearings taking place, as well as protect court staff.

At a practical level, COVID-19 is an acceptable (direct or underlying) cause of death for the purposes of the Medical Certificate of Cause of Death. Therefore the fact that an individual may have died as a result of COVID-19 is not, on its own, a reason to refer a death to the Coroner. There may however be other circumstances relating to such a death which do nonetheless justify referral and further investigation by the Coroner.

For those deaths which do proceed to inquest, the Coronavirus Act 2020 has suspended the requirement for a jury inquest even though COVID-19 is a notifiable disease.

The decision as to whether ongoing cases can continue to be heard is ultimately at the discretion of the senior coroner for each area. However the Chief Coroner has suggested that:
• no physical hearing should take place unless it is urgent, essential business and that it is safe for those involved for the hearing to take place. For example, any jury inquest, “of significant length,” listed to start between 31 March and 28 August will be adjourned. Currently those hearings listed from 1 September onwards should remain in the list;
• any hearings that do take place should be public and conducted in court; and
• coroners should, where feasible, use technology (including telephone and video-conferencing applications) to enable the participation of all Interested Persons and their representatives.

The full Guidance Note can be found at:
https://www.judiciary.uk/wp-content/uploads/2020/03/Chief-Coroner-Guidance-No.-34-COVID-19_26_March_2020-.pdf

Resident Admissions
Current Public Health England (PHE) advice permits service users to be admitted to a care home from a domestic setting. Whilst some may have COVID-19, PHE considers that such patients can be safely cared for if all other relevant guidance is followed.

If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period, care can be provided as normal.

This advice does not overrule your general obligation to consider whether you can safely cater for a specific individual’s needs. That assessment must still be undertaken in respect of all new admissions in the normal way.

In respect of admissions from hospital, the onus is on the relevant Discharge Service to clarify with the receiving setting the COVID-19 status of an individual, as well as any symptoms observed during the transfer process.

Whilst national testing for the disease remains limited some hospital inpatients will qualify, for example those receiving critical care for pneumonia. However negative tests are not required prior to an individual’s transfer to a care home.

Further guidance can be found at the following link:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878099/Admission_and_Care_of_Residents_during_COVID-19_Incident_in_a_Care_Home.pdf

Personal Protective Equipment (PPE)
A dedicated helpline has been established for organisations who have immediate PPE supply concerns. The contact details are: 0800 915 9964, or supplydiruptionservice@nhsbsa.nhs.uk

PHE has issued, and regularly updates, its guidance as to the appropriate use of PPE by those working in the sector and for those undertaking specialised or nursing care, specific guidance is available at:

https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-personal-protective-equipment-ppe

For those providing care to service users who are known to be possible or confirmed COVID-19 cases, specific PPE recommendations are provided. For other individuals an assessment is recommended, to be undertaken remotely if possible, to ascertain whether the individual meets the case definition for possible/ confirmed COVID-19 before care is delivered. If an individual is symptomatic and meets the case definition, appropriate PPE should be worn prior to care.

Current guidance states:
• Aprons and gloves remain subject to single use in accordance with Standard Infection Control Precautions.
• Respirators, fluid-resistant surgical masks, eye protection and long-sleeved disposable fluid repellent gowns can be subject to single sessional use, each session ending when the care worker leaves the clinical care setting or exposure environment.
• Once removed, all PPE should be disposed of safely.

In addition, users of face masks should be aware of the HSE’s guidance on face fit testing, full details of which can be found at:
https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm

Medicines
The CQC recognises that the dispensing and checking of Multi-Compartment Compliance Aids (MCAs) is labour-intensive and that pharmacies may withdraw this service during the pandemic. If your supply changes from MCAs to original packs, the CQC recommends that you review and update your risk assessments, policies and procedures, staff training and competency assessments in response.

The key message is that all staff must understand how to administer medicines safely and in a manner which allows for continuity of care.

Additional advice, including in relation to the delegation of tasks to care workers from healthcare professionals, is available at:
https://www.cqc.org.uk/guidance-providers/adult-social-care/covid-19-medicines-information-adult-social-care-providers

DBS Checks
The CQC has issued interim guidance for recruiting staff and volunteers as a consequence of (and during) the pandemic and where the following three factors apply:
– you need staff to start urgently;
– waiting for a full DBS check could cause undue delay; and
– this delay could lead to risks in continuity of your service and impact the safety and wellbeing of people using it.

For emergency roles, you will be able to make use of a fast (and free) Barred List check and, whilst Enhanced Check information will still be processed, this will be issued subsequently.

Helpfully the CQC has confirmed that if employers take reasonable steps to ensure that new staff are recruited in line with the above guidance, they continue to be adequately supported and appropriately supervised and that service users remain safe, it will, “not take a punitive approach.” This means that so long as you record the decisions taken in respect of staff recruitment, together with any risks identified and mitigating control measures, this is likely to influence whether enforcement action is taken in respect of similar breaches in the future.

The CQC’s full advice can be found at:
https://www.cqc.org.uk/guidance-providers/all-services/covid-19-interim-guidance-dbs-other-recruitment-checks

Staff appointments which are not as a result of COVID-19 must continue to be processed in the usual manner.

Conclusion
Despite the relaxation of some regulatory requirements, you need to be mindful that matters potentially of interest to the regulators (and unrelated to COVID-19) will continue to occur. It is imperative therefore that you continue to abide with your pre-existing regulatory and professional obligations to ensure the safety and well-being of both your service users and employees.

A summary of the CQC’s advice, relating to all aspects of social care, can be found at the following link:
https://www.cqc.org.uk/guidance-providers/adult-social-care/information-adult-social-care-services-during-coronavirus-outbreak#restricting-visitors

Should you require any assistance in interpreting or applying current guidance, then please do not hesitate to contact us.

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