At Ridouts, we have heard from providers that some insurers are refusing insurance cover for claims arising from COVID-19. This article considers the issue of whether a care provider can exempt or restrict liability for risks (including personal injury or death) resulting from COVID-19 in relation to service users, employees and visitors to a service. However, please note that the pandemic is bringing up a number of legal grey areas which are, as yet, untested. This article is provided for general information purposes only and does not constitute legal advice. Providers should seek legal advice in relation to any matters specific to their organisation.
Privately funded service users
The Consumer Rights Act 2015
The Consumer Rights Act 2015 (“CRA”) provides protection against unfair terms relating to business-to-consumer contracts. In the context of a care provider exempting or restricting liability for risks in a contract with privately funded service users, the CRA might apply because this would be a business to consumer contract.
The provisions under Section 65 of the CRA mean that a care provider would be unable to contractually exclude their liability to a service user for death or personal injury resulting from negligence. Under section 65(3) personal injury, “includes any disease and any impairment of physical or mental condition” so in this context, COVID-19.
Negligence, broadly speaking, means failing to take reasonable care or exercise reasonable skill in the performance of the contract, or, failing to ensure that a person who visits premises is kept reasonably safe. In the context of a care provider seeking to exclude or restrict liability for death or personal injury to a service user resulting from COVID-19, this would not be allowed. It also does not matter if this failure to take reasonable care was “inadvertent or intentional” or “whether liability for it arises directly or vicariously.”
Regulation 13(1)(a) of the Care Quality Commission (Registration) Regulations 2009 requires that providers meet “the aims and objectives set out in the statement of purpose” for the service. CQC’s guidance in relation to Regulation 13(1)(a) states that providers “… must have insurance and suitable indemnity arrangements to cover potential liabilities arising from death, injury, or other causes…”.
It is an open question as to how compliance might be affected if insurance cover is not generally available as with COVID-19.
Publically funded service users
The position in relation to Local Authority funded service users and whether they are in fact consumers for the purposes of the CRA is unclear. It is unlikely that liability could effectively be excluded for publically funded service users. This is because it would probably breach the terms of the overarching framework agreements and it would not be much of a stretch to argue a care contract with the actual service user.
- The Health and Safety at Work etc. Act 1974
Employers have a legal obligation, “to ensure, so far as is reasonably practicable, the health, safety and welfare” of all employees at work. This means that healthcare providers are responsible for all staff who work in their service and they have a duty to ensure that they are safe whilst at work. This is a statutory obligation and therefore in our view liability for risks arising from COVID-19 cannot be restricted or excluded.
- Employers’ Liability (Compulsory Insurance) Act 1969
If an employee becomes unwell as result of their employment, they may try to make a claim “for bodily injury or disease” against their employer. The Employers’ Liability (Compulsory Insurance) Act 1969 requires that employers have insurance cover against any such claims. Providers should carefully read and check existing and renewal policies for employers’ legal liabilities and review whether COVID-19 related claims form part of the cover. Even if the insurer has excluded, or has attempted to exclude the cover offered (albeit on increased premium terms), the requirement to insure still stands. If no insurance is available (which we do not believe to be the case) then that might prove a defence to non-insurance. However, it would not avoid staff claims being made.
Visitors to a care home
- Occupiers’ Liability Act 1957
Under the Occupiers’ Liability Act 1957, the person who controls the premises i.e the ‘occupier’ is liable for the physical safety of everyone who comes onto the premises and has a duty to take reasonable care to ensure that visitors are kept reasonably safe. If an occupier breaches this duty and someone is injured as a result they could be liable. However, there are various ways in which a provider could ensure that a visitor is reasonably safe. For example, the provider could follow government guidance in relation to visits to care homes and follow documented compliance procedures to minimise the risk of COVID-19.
Under section 2(1) a provider is able to, “…restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.” In this regard, a disclaimer could exclude a care provider’s duty in relation to visitors to their service. For example, “All persons who enter these premises are instructed that neither[………X………..] nor their staff will accept any liability of loss or injury or damage (including death) based upon an allegation relating in any way to the construction, maintenance, conduct or use of the premises or any business carried on upon the premises.” This disclaimer could be in the form of posted notices, email footers, website notices and signed agreements.
If a visitor has been warned about potential dangers and risks arising from COVID-19 and signs a disclaimer, it could be said that the visitor willingly accepts the risks. Occupiers’ liability insurance covers the occupier of a business premises for injury or damage claims made against them and this is most commonly called public liability insurance. Occupiers can take out insurance cover to protect themselves in the case of compensation claims from people injured on their premises.
CQC inspector visit
Under section 62 of the Health and Social Care Act 2008, CQC has powers of entry and inspection. CQC inspectors “may enter and inspect any premises which are…regulated premises” if they consider it is “necessary or expedient for the purposes of any of its regulatory functions.”
Under 63(7) of the Health and Social Care Act 2008, a person who “without reasonable excuse” obstructs an inspection, “is guilty of an offence and liable on summary conviction to a fine”.
It is an open question as to whether or not an inspector’s refusal to sign a disclaimer would be a reasonable excuse for preventing an inspection. If you have informed the inspector in advance that you have a disclaimer policy in place for visitors to the service and (as inspectors are visitors) they are expected to agree to it, it could be considered to be reasonable. However, it is difficult to know what view a court would take in relation to this.
In relation to service users and employees, it does not appear as though care providers can exempt or restrict liability for risks (including personal injury or death) resulting from COVID-19.
With regards to visitors to a care home, providers may want to consider a disclaimer notice (exempting or restricting liability for risks, including personal injury or death, resulting from COVID-19) as a condition of visiting. Whilst not guaranteed, it is likely that providers could seek to restrict liability for uninsurable losses under claims from a variety of visitors with a combination of posted notices, email footers, website notices and signed agreements. However, it is hard to predict what position CQC and the Government will take in relation to this. We need further information from the Government in relation to its proposed indemnity schemes to determine what cover they will provide to providers and whether it is sufficient. In the meantime, it is a good idea for providers to review their policies to determine what cover is currently available and not to wait until disaster strikes!
It should also be noted that the pandemic is bringing up a number of legal grey areas which are as of yet untested. Therefore, it is sensible for employers to have robust risk assessments in place in relation to managing all coronavirus associated risks, whatever they may be.
If providers need any advice or assistance in relation to issues arising from risks relating to COVID-19, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address firstname.lastname@example.org or by calling 0207 317 0340.