Can a Care Home be compelled to accept the discharge of a patient who has tested positive for COVID-19?

Over the weekend, how Care Homes are dealing with admissions of patients being discharged from NHS hospitals has been highlighted in the media. There has been some criticism of Care Homes refusing to accept patients discharged from NHS Hospitals during the COVID-19 pandemic.

A number of issues feed into the debate around this. These include: the need to free up much needed hospital capacity for new COVID-19 cases balanced with continued reports that Care Homes are not being provided with sufficient or appropriate PPE equipment to protect their residents and staff from COVID-19 risk; staff shortage due to illness and, crucially, the fact that currently testing patients for the virus before discharge to a Care Home setting has not been made mandatory.

Worryingly, we have had an increasing number of enquiries from Providers who are being put under real pressure to accept the discharge of patients, without any assurances as to the patient’s COVID-19 status and even those who have tested positive for COVID-19 to their Care Homes.

This is a very difficult position to put a Provider in. They need to consider carefully whether they can meet the needs of that particular individual and also meet their regulatory obligations to keep all of their other residents safe. 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 safely isolate a proposed service user who has tested positive for COVID-19, or might develop symptoms following admission one can easily foresee the type of avoidable harm that might ensue.

Unfortunately for Providers however, the government guidance “Coronavirus (Covid-19): hospital discharge service requirements” published on 19 March 2020 (“the 2020 Guidance”) does not tackle this issue head on and therefore it is difficult for Providers to know where they stand.

That said, what is abundantly clear from this guidance is that Trusted Assessment rules and processes should be being utilised (or put in place rapidly if not already in place) for all patients being discharged from hospital to a Care Home setting.

Annex C of the 2020 contains guidance from CQC called “Covid-19 Trusted Assessor guidance”.

This annex makes clear that it is intended to be a supplement to the CQC guidance already in place on trusted assessors from 2018. That 2018 guidance clearly 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).”

Accordingly, we would argue that if there are attempts to compel a Provider to accept a patient from an NHS hospital, particularly those who have been tested positive for COVID-19, and the Provider is not satisfied that the discharge and assessments and care plans will allow them to meet their other regulatory obligations, including their regulation 12 requirements to keep other residents safe, then they cannot be compelled to accept that admission.

The 2020 Annex C further states that:

“Registered providers and managers will need to have confidence that legal requirements for assessments will be met, and that particular consideration will be given to safety and infection control-related needs during this heightened period.”

Without this confidence or indeed the equipment and staff to put appropriate measures in place Providers cannot be expected to risk the safety of its staff and residents (and take the risk of breaching their regulatory obligations in the process).

Care Homes care for some of the most vulnerable people in our society. Providers are working tirelessly across the country to keep these people safe. Many have restricted visitors during the Pandemic and others have taken even more drastic steps to have Care Home staff move into services for the duration of the Pandemic to keep the risk of infection out. These valiant efforts will be completely undermined if Care Home Providers are forced to accept patients from hospitals who have tested positive for the virus and the Care Homes have not been provided with the vital equipment and staff to allow them to manage this risk safely.

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