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Markel Insurances

11 Jun 2020

Working safely: Health and safety checklist for care organisations

At Markel, we believe that you should Expect More from your lawyers, insurers and tax professionals. We are committed to delivering the best advice and assistance to all of our customers and we will continue to do so during the Covid-19 pandemic and beyond.

The care sector has been hit hard by this outbreak - from stories of commissioners putting pressure on providers to admit COVID-positive residents, to staffing issues and delays in testing. For a sector that was already struggling, the additional requirements have been hard to process. It is also interesting that the bulk of the guidance for the sector has predominantly come from central government rather than the CQC.

The CQC have paused routine inspections, however they have been keen to state that their regulatory role and core purpose of keeping people safe has not changed. They have developed an Emergency Support Framework that was applied from 4 May onwards during the pandemic. This approach has a number of elements:

  • using and sharing information to target support where it’s needed most

  • having open and honest conversations with providers

  • taking action to keep people safe and to protect people’s human rights

  • capturing and sharing what CQC do

They have stated that they will use this emergency approach in all health and social care settings registered with CQC and for a period afterwards. This process is not an inspection and the performance of a provider will not be rated. There is a lack of certainty for providers as this is described as a ‘flexible process’, which will be regularly improved during the pandemic based on learning and feedback.

The CQC state that the Emergency Support Framework has been designed to be flexible, allowing them to respond to the changing needs of the health and social care system during this time. This approach involves using and sharing information to target support where it’s needed most. It is unclear what the reference to ‘support’ is, as many operators do not have a supportive relationship with their local inspectors. The information used by the CQC in their risk-profiling exercise will be from new and existing sources, including information providers share through notifications. They are increasing efforts nationally and locally to encourage feedback from the public and care staff, as well as whistleblowers.

In testing times providers are encouraged to maintain an open dialogue with residents, families and staff to mitigate the risks of adverse information being shared and/or whistleblowing disclosures. This will help ensure that issues are aired and can be responded to so people are kept safe.

The CQC have made it very clear that they will take action to keep people safe and to protect people’s human rights by using our powers to take action where there is unsafe or poor care.

Providers are expected to continue to do everything in their power to keep people safe. The CQC have highlighted what they perceive to be innovative methods providers are using to adapt in the areas in the checklist below in areas such as infection control, communication, well-being, guidance and staffing.

It is important to note that the guides do not replace existing health and safety obligations, however, they should be considered by employers when assessing risk and implementing control measures.  As an employer, the day-to-day operations of your business will inevitably change but your legal responsibility to protect employees and non-employees from risks to their health and safety remains. Practically, all providers must carry out a COVID-19 risk assessment and keep this under review. Whilst it may sound obvious, the appropriate action should be taken and ensure that all those impacted by it are aware of it.

As lawyers, we see risk assessments that are relied on in defence of a prosecution – a common problems is that they are either generic and do not address the specific needs of the business or alternatively, they are adequate, but no steps are taken to mitigate risk and embed new ways of working within the organisation. Providers may look to source risk assessment templates and policies from third parties; however, they must be fit for purpose and tailored to the organisation. In addition, we would expect to see health and safety and COVID-19 risk management as a standing item on board and management meeting minutes to demonstrate how the organisation has devised its approach and monitors the position. It is accepted that these are challenging times and providers will face challenges, the key is how these are responded to. An audit trail should be retained in the event that this is needed as evidence in relation to potential proceedings that may include inquests, the CQC inspectorate and the local authority quality review/safeguarding teams.

*This article does not constitute legal advice and is for guidance purposes only. For any specific queries or concerns, you should take legal advice.

For further information and advice on health and safety in the workplace, contact Deborah Nicholson or call us on 0371 705 4006.

Our COVID-19 Hub contains a range of information and resources to best support our clients during this difficult time. To receive the latest news and insights by email sign-up here.

Tagged Social Welfare Insurance COVID-19
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What to do when a client doesn’t pay: The process and tips for getting paid