Independent mental health providers risk potential claims from staff and families for regulation breaches while they are distracted by the challenges of the Covid-19 pandemic, attendees at LaingBuisson’s Managing Coronavirus Risk & Liability in Health & Social Care webinar heard today.
Ruth Winterbottom, a partner at law firm DAC Beachcroft urged providers to mitigate risks associated directly with the pandemic by closely documenting procedures and policy responses in key areas, such as PPE and social distancing.
She said deficiencies in documentation are the ‘breeding ground for claims’ and that action brought by staff is likely to derive from infection in the workplace and work-related stress.
However, she added that the knock-on effect of providers being completely distracted by Covid-19 could be an increase in other claims, such as for physical injury if reduced staffing makes manual handling difficult.
There are also likely to be challenges from families if staff take their eye off the day job and miss key triggers in patients, she said.
Sarah Livingstone, general counsel at mental health provider Elysium Healthcare, told attendees that it had been difficult for the company to interpret government guidance during the pandemic because it is aimed primarily at either acute hospitals or care settings.
She said that the company had decided to be more stringent in its approach than current guidance dictates in order to protect itself and to ensure that non-Covid-19 risks to the business are being picked up.
Partner at DAC Beachcroft Gill Weatherhill said there were challenges for providers across the health and social care spectrum but that mental health providers faced additional complexity from the legalities around deprivation of liberty.
‘The legal framework wasn’t designed for a pandemic. We’ve spent a lot of time helping providers look at the complexities. For example, how you deal with patients who don’t want to be isolated. Can you use the powers of the Mental Health Act? Can you use the Mental Capacity Act? Should you be using the new schedule 21 power, which is designed for detaining, screening and assessing in this context?’ she said.
As well as claims from individuals, Covid-19 also creates regulatory risk for health and social care providers in the form of future retrospective scrutiny and public enquiries. Although some professional regulators have indicated they will offer leeway for providers, Weatherhill added there is a fine line between deviation from good practice and illegal practice.
‘As you would expect, to the extent that CQC hear that there are concerns at a service they are still going to look at you be that virtually or in person and when they do that they will be considering similar criteria to the pre-Covid world so you will still need to be in a position to make sure you can provide the assurances around issues such as staffing, risk management and quality and safety,’ she said.
Although the sector has already begun to see some early-stage liability claims, it is anticipated they will gather momentum as we emerge from the first wave of the pandemic and providers are advised to take action now to mitigate the risks as much as possible.
Philip Dearne, healthcare practice lead at risk advisory and insurance broking firm Marsh, said he was expecting to see increased claims in public liability cover, treatment risk and malpractice and employee liability.
In Canada, he said, a class action had already started against a care provider for ‘failure to prepare for a pandemic’.
At the same time, he added, insurers have started restricting products, excluding pandemics from cover and reviewing premium costs, with some suggesting price increases of as much as 50%.
‘What we’ve seen over the last few weeks, bearing in mind that we only saw the first fatalities in March, there have been six insurers that have stopped writing new business for healthcare providers in a relatively small marketplace,’ he said. ‘most of those are continuing to offer renewals but they won’t write new business.’
Dearne advised providers to maintain audit trails and demonstrate risk management. Crucially, he said, providers should begin renewal processes as soon as possible and talk to their brokers about what good looks like to insurers.
‘It’s going to be a challenge and we are advocating to our clients a number of different ways in which they can try and mitigate the impact of this, and in which we can help them, but I don’t want to paint a picture that it’s going to be easy out there because unfortunately it’s not,’ he said.