Earlier this week I wrote an article considering the question of whether a Care Home can be compelled to accept the discharge of a patient who has tested positive for COVID-19. In that article (found here) I submitted that the Government guidance “Coronavirus (Covid-19): hospital discharge service requirements” (published on 19 March 2020) does not tackle this issue head on making it very difficult for Providers to know where they stand. I therefore offered an analysis of how specific provisions of the Trusted Assessor framework could apply to the decision making in this area.
On 2 April 2020, the Government published guidance which does now specifically address this issue called “Admission and Care of Residents during COVID-19 Incident in a Care Home.”
This new guidance stresses the Governments position that the Care Sector has a vital role to play, as part of the national effort, in freeing up acute hospital capacity and that it is expected that residents will be admitted to Care Homes even if these patients may have COVID-19, whether symptomatic or asymptomatic. The Government position is that “All of these patients can be safely cared for in a care home if this guidance is followed.”
The new guidance provides details of how it expects Care Providers to meet the care needs of residents being discharged from hospital depending on their COVID – 19 status.
It provides guidance on 3 categories of COVID-19 status:
- If a resident has no symptoms of COVID-19 :
The guidance states that, upon discharge, the care home should provide care as normal.
If that person then develops symptoms then the Care Home should provide care in isolation if symptoms occur within 14 days of discharge from hospital. This care is to include that the Resident does not leave their room (including for meals) for 14 days after onset of symptoms or positive test and that staff wear protective equipment & place in clinical waste after use. The Care Home should also consult the resident’s GP to consider if re-hospitalisation is required.
- If the resident has tested positive for COVID-19, is no longer showing symptoms and has completed isolation period
The guidance states that the care home should provide care as normal.
- If the resident has tested positive for COVID-19, is no longer showing symptoms but has not yet completed isolation.
The guidance states that the Care Home should provide care in isolation. This means the resident does not leave room (including for meals) for 14 days after onset of symptoms or positive test. Staff must wear protective equipment & place in clinical waste after use.
The guidance goes on to detail the types of measures that should be put I place in terms of social distancing and isolation especially for those in vulnerable or shielding groups (including staff in those categories).
Whilst this new guidance may well set out the expectation of Providers, it pre-supposes that all Care Homes are currently equipped with sufficient resources, including PPE and staffing, to be able to put these measures in place. It also pre-supposes that testing is more widely available than it currently is and, unfortunately, that is just not the reality of the situation that Care Home Providers find themselves working in.
In terms of PPE, the new guidance promises that the Government “will ensure a longer-term supply of all aspects of personal protective equipment (PPE) for care homes – and home care providers – so that staff can provide care, as well as providing a national supply disruption line for immediate concerns.” Annex F of the guidance goes on to detail the PPE that must be worn
Until these resources are readily available Providers cannot be expected to accept admission of patients from hospital who may have COVID-19 as they will not be able to put the provisions expected by the new guidance in place in terms of isolation with use of PPE. Accepting an admission in these circumstances may well put the safety of the existing vulnerable residents, and the care home staff, at risk.
In terms of testing, the new guidance states that:
“The Hospital Discharge Service and staff will clarify with care homes the COVID-19 status of an individual and any COVID-19 symptoms, during the process of transfer from a hospital to the care home”. However, it is widely reported that testing is not currently routine or sufficient. The scenarios in the guidance do not properly account for an individual’s COVID-19 status being unknown, just because they are not showing symptoms does not necessarily mean they are not infected with the virus. They may never show symptoms, and triggers the guidance on providing care in isolation, but could continue to spread the virus with a very vulnerable group unknowingly.
It is all very well for the guidance to provide that “Negative tests are not required prior to transfers / admissions into the care home”, however there must at least have been a test so that the provider can know one way or another which of the three categories of the guidance the resident falls into. Only then can the Provider properly consider whether they are able and sufficiently resourced to provide the appropriate level of care envisaged by the guidance and assess whether the admission will be clinically safe for that resident and the existing resident and staff.
The new guidance still refers to the Trusted Assessor framework. It provides that: the assessment of care needs will be undertaken by hospital discharge teams, in collaboration with Trusted Assessors
The 2018 CQC guidance on Trusted Assessments provides that:
“ Trusted Assessor discharge assessments and care plans must allow the accepting care provider to meet the requirements of Regulations 9, 10, 11 and 12 of the Health and Social Care Act 2008 (Regulated Activities) 2014 (and all other relevant legal requirements).”
As mentioned in my previous article, when considering new admissions, the Provider will need to consider carefully whether they can meet the needs of that particular individual and also meet their regulatory obligations. Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires providers at all time to provide safe care and treatment for all service users. This includes a specific obligation to assess the risk of, and prevent, detecting and control the spread of, infections. CQC can prosecute for a breach of this regulation if a failure to meet the regulation results in avoidable harm to a person using the service or if a person using the service is exposed to significant risk of harm. One could argue that if a Care Home does not have the PPE equipment, staff and/ or facilities to provide the care envisaged in the governments new guidance for a new admission, then one can easily foresee the type of avoidable harm that might ensue.
In essence admissions still have to be clinically safe in line with regulation 12 and individual decisions will still have to be made, at Provider level, taking into account the ability to meet social distancing guidance and the availability of staff and other resources such as PPE and testing. Clinically safe in line with regulation 12 must be a judgment in the reasonable professional opinion of the Provider and/ /or Home Manager who will bear ultimate responsibility for meeting the 2008 Regulations. In exercising that judgment, they will have to take into account the safety of the new arrival and other service users and staff.
Again this guidance underlines the vital need for the Government to step up its efforts to ensure the consistent supply of PPE to the Care Sector and the need to make testing more widely available. Until its obligations in this regard are met, the Government cannot expect, nor compel, Providers to gamble with the safety of their residents and staff.
