COVID-19 & care homes inquiry: an urgent call

Clearly something has gone badly wrong in the UK. The proportion of care home residents who have died is a third higher than in Ireland and 13 times greater than Germany. With a second wave ahead, lessons learned can save lives. By Oliver Lewis

The Prime Minister has agreed to an inquiry into the government’s response to the COVID-19 pandemic. However, he has not committed to an inquiry under the Inquiries Act 2005 (which may be established where it appears to a minister that ‘particular events have caused, or are capable of causing, public concern’). He has rejected calls to establish an inquiry immediately. That needs to happen so that lessons are rapidly learned, public trust is re-established and lives are saved.

This article sets out potential themes that an inquiry may consider in relation to COVID-19 and care homes.

On 29 July 2020, the House of Commons Public Accounts Committee published its hard-hitting report Readying the NHS and social care for the COVID-19 peak which described the government's approach as ‘slow, inconsistent and, at times, negligent’ and increases pressure for the launch of an urgent statutory inquiry (read more here).

Although several Parliamentary committees have launched their own inquiries, they are all constrained by the mandate of their particular committee, they have few resources including staff to appropriately consider very considerable disclosure, they lack input from those most affected and are a political, rather than a judicial, process.

An inquiry would examine the UK government’s response, but its mandate must extend beyond Westminster. It should include decisions made by the devolved governments, NHS bodies at the national and local levels, care inspectorates and public health bodies in all four nations, advisory bodies such as SAGE, local authorities and the private sector including care providers, supermarkets and equipment suppliers.

To gain public trust, a deliberative democratic process such as a citizens’ assembly or jury could make recommendations to the minister on the matters to which the inquiry relates in advance of the formal terms of reference being published. This would enable participatory decision-making that includes the most marginalised people and increase public trust in the inquiry process.

The extent to which the UK complied with its obligations under Articles 2 and 3 of the European Convention on Human Rights should be examined. These provisions establish duties to take proactive steps to protect life and prevent ill-treatment. Further obligations exist under the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the UK in 2009. Article 11 of the CRPD seeks to ensure disability-inclusive emergency planning including in preparedness for natural disasters such as epidemics. Also of relevance is the Sendai Framework for Disaster Risk Reduction 2015-2030 which was adopted by all UN member states. Under the Framework, disaster risk reduction policies and practices must be disability-inclusive and data must be disaggregated by, among other factors, disability.

Older and disabled people face a dual COVID-19 risk. First, those in congregate care are at increased of infection. Second, they are a risk of a worse outcome owing to age and comorbidities. Disabled people have a higher prevalence of diabetes, obesity and cardiovascular disease – all of which are COVID-19 risk factors. 

These risks led Michelle Bachelet, the UN High Commissioner for Human Rights to warn in mid-March that the virus ‘risks rampaging through such institutions’ extremely vulnerable populations’. In several countries, a third to half of COVID-19 deaths have been in care homes.

Social care in the UK is fragmented and has faced years of under-investment. Care is often provided by agency staff working in multiple locations on minimum wage zero hours contracts. In England, there are around 15,500 residential and nursing homes providing support for older and disabled people, with an estimated 457,000 beds. It was reported in early July that over 30,000 excess deaths in care homes, two thirds of which are directly from COVID-19. 

Clearly, things have gone badly wrong in the UK: the proportion of care home residents who have died in the UK is a third higher than in Ireland and 13 times greater than Germany despite Germany having a care home population twice as large. Deaths are still occurring, there is a prospect of a ‘second wave’ and no independent body has oversight of what has happened. These are reasons why an inquiry should be established rapidly. Lessons need to be learned and shared to save life.

Understanding why the UK has done so badly must involve those most affected. Any inquiry needs to have the resources to do justice to what will inevitably be a complex task. The inquiry will have to establish what was known, and should have been known, by the government and other stakeholders in preparedness for an epidemic such as COVID-19. It will have to understand the decisions made at various levels, week by week, as the pandemic progressed. It will have to comment on the quality of decision-making and communication to the sector and to the public and make recommendations.

The key questions for an inquiry

Key questions for the care home strand of an inquiry are likely to include the following.  

  1. What was known, by whom and when, about the COVID-19 process of transmission?
  2. The Prime Minister seems to have blamed care homes for not following the guidance, but what was the guidance? Was guidance for care homes issued by the four nations clear, easy to understand, timely and communicated effectively? Were the bodies that authored the guidance responsive to feedback and did they provide speedy updates? Was the guidance based on evidence? Why was the England guidance inconsistent with WHO advice with respect to eye protection for staff, masks for residents, PPE for cleaners and specificity of laundry temperature?
  3. What infection prevention and control (IPC) measures were put in place in the social care sector before the government’s decision to rapidly discharge patients from NHS beds into care homes? Why was it considered unnecessary to test these patients for COVID-19? Did staff at receiving care homes receive adequate training on IPC and have access to appropriate equipment? What regard did the public bodies have for the health and life of residents in recipient care homes?
  4. How was food supply ensured for care home residents? What was the role of supermarkets?
  5. Was provision made for residents in social care to continue to be able to access primary and specialist health services? Did care home residents have appropriate access to primary care, given that by the end of April over 85% of GP consultations were taking place remotely? Did remote consultations work effectively for residents with learning disabilities or dementia? How were care home residents who were in the shielding category cared for? To what extent did difficulty accessing healthcare contribute to deaths?
  6. What was the role of 111, and did the service prevent people accessing hospital care? 
  7. How were care home staff and residents affected by the availability of testing? Why was the World Health Organization advice on testing abandoned? Why was testing made available to care home staff only in mid-May and completed by early June? Why were residents below the age of 65 not provided with testing even with the evidence that there had been a 134% increase in deaths in care of people with a learning disability and/or autism for the period 10 April to 15 May?  Why was weekly testing of staff and monthly testing of residents of care homes for over 65s introduced only on 3 July? Why was testing not offered to those in other locations such as supported living and people living independently in the community receiving care? Would regular and early testing have prevented deaths?
  8. What was the scale of the shortage of personal protective equipment (PPE) in care homes? Why did some care homes have insufficient PPE supply? Whose responsibility was it to protect the PPE supply chain for social care? To what extent did the PPE shortage cause deaths?
  9. What action did local authorities take to discharge their duties to protect lives of people deprived of their liberty under the ‘Deprivation of Liberty Safeguards’ regime? To what extent did local authorities revisit best interests decisions? Was sufficient consideration given to evacuating residents to places of safety in the community?
  10. When was data made available to local agencies and the public on outbreaks in care homes? Was that data reliable, clear, centralised, and published on a sufficiently regular basis? What were the reporting systems? Were they effective in enabling data to be published to inform rapid decision-making at national and local levels? How was data disaggregated by care home, age, disability and race/ethnicity? Were residents and their families made aware of the local situation and IPC measures?
  11. What expertise was available to the central and devolved governments? Why did SAGE not have any experts in gerontology or disability? Why did SAGE meetings discuss care homes only twice from January to May?
  12. Why was it only on 15 May that the government provided £600m funding for care homes, the previous funding for local authorities having been non-ringfenced? Did care homes require funding for IPC before that? Has that funding been used on IPC to save life?
  13. Given the risk in care homes, what steps were taken by which organisations to prevent people in the community who had been assessed as requiring residential care from being transferred to care homes? Was care provided in the community for them?
  14. What was the process at national and local levels for the key agencies to learn from the experiences of social care in other countries?
  15. Did COVID-19 disproportionately affect care home staff and residents from Black and Minority Ethnic communities? How was data collected, what was known when, and what policy decisions were taken as a result?
  16. What was the role of the Care Quality Commission, Care Inspectorate Wales, Care Inspectorate (Scotland) and the Regulation and Quality Improvement Authority (Northern Ireland)? Did they continue to perform a watchdog role? Did the CQC compromise its independence by co-authoring government guidance for care homes, and what was the impact on care home residents? How did the inspectorates adjust their practice to comply with the requirements set out in the Optional Protocol to the UN Convention against Torture to carry out preventive visits to care homes?
  17. How did statutory advocates maintain their contact with their clients? Did they have adequate supply of PPE?
  18. How did care homes enable residents to maintain contact with family and friends? Were residents offered regular opportunities to use video conferencing to keep in touch with friends and relatives? Was provision made for relatives to have an in-person visit to loved ones who were close to death?
  19. Given GPs had stopped visiting care homes, whose responsibility was it to sign death certificates? What guidance existed on recording COVID-19 related deaths, and was the guidance followed? How were decisions taken to refer deaths to the Coroner?
  20. With respect to all of the above, were decisions made with due regard to duties under the Human Rights Act 1998 and the Equality Act 2010?

It is hoped that an inquiry will usefully contribute to the wider debate about social care reforms in this country and elsewhere, in particular a shift from institutional care to the provision of support in the community. Michelle Bachelet has observed that, ‘we simply cannot return to where we were just a few months ago, before COVID-19’.

Published on 30 July 2020.

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Oliver Lewis

Oliver Lewis of Doughty Street Chambers is regularly instructed to advise on human rights and negligence claims concerning health and social care. He also practises in the Court of Protection, inquests and international human rights law. He tweets at @DrOliverLewis.

Oliver is a member of the legal team advising ‘Covid-19 Bereaved Families for Justice’, a group of over 1,400 people who have lost relatives to Coronavirus: www.covidfamiliesforjustice.org