The strain upon care homes and care workers caused by the COVID-19 pandemic has been well-documented. Encouragingly, however, we are now seeing some very positive trends in the sector. Occupancy rates are increasing, staff retention is improving, and the need to rely on agency staff has reduced.
There remain, however, several emerging claims trends that underscore the need for care and nursing homes to ensure their records are properly maintained, and that their staff are appropriately trained and fully compliant with the home’s policies and procedures.
Currently, a significant volume of legal claims in the sector relate to missed medication or incorrectly dispensed medication. These claims usually arise because the dispensing policy is either inadequate or is not being adhered to – which can make these cases challenging to defend.
In many cases, deficiencies in protocols for dispensing mediation are being exacerbated by staffing constraints. If, for example, there is just one person who’s responsible for both dispensing and checking medication, then there is no independent ‘audit’ of which medications were handed to which service user.
We cannot emphasise enough the importance of having strict dispensing policies in place, which staff are able to adhere to, to mitigate the risk of these claims.
Claims for negligent care sadly also remain quite commonplace in this sector. Typically, these claims include service user falls and claims alleging poor management of service users with impaired mobility, often leading to skin viability issues.
It is vital to the successful defence of these claims that the risks are adequately assessed, that care plans are sufficiently detailed and are reviewed and updated on a regular basis, and that accurate records are maintained.
As well as having detailed policies and plans in place, care homes also need to ensure that all treatment records are accurately maintained.
Shortcomings in record keeping have become more evident in recent years in part because of the problems many care homes have been facing in recruiting and retaining staff.
Unfortunately, if the service user’s records are not properly maintained, it becomes very difficult to defend these types of negligence claims.
Staffing issues can themselves be a fertile breeding ground for legal claims. There have been several recent cases where the training of new staff has not been up to standard, or where agency workers for whom English is not a first language have not been made aware of the full detail of care plans and risk assessments, leading to deficiencies in aspects of the care.
The number of claims in which violence plays a part is also significant. Once again gaps in record keeping can be an aggravating factor.
If a risk assessment or care plan is not updated as soon as a spontaneous physical act is witnessed, there may be a missed opportunity to arrange the additional support that a service user may require, and the risk of recurrence is increased leading to the issue becoming even more challenging to manage effectively.
It is also crucial that carers are properly trained in how to de-escalate and manage violent incidents. We would strongly recommend to all of our care home clients that they arrange specialist training, including in relation to safe and lawful use of restraint, to help their staff manage these risks effectively.
Supporting staff
The challenge of recruiting and retaining employees has long been recognised in the sector, with staff shortages being further aggravated by the cost of living crisis and the impact of Brexit. As mentioned above, staffing shortages can often be a contributory factor to legal claims by service users.
Stress claims by staff are also, unfortunately, on the rise. This is perhaps unsurprising given the extremely challenging conditions that many staff had to work though during the pandemic.
It is vital that even the smallest care homes take this issue seriously. We recommend that all care homes where possible should have access to an HR facility to help deal with these issues, and that there is a clear HR process to follow as soon as colleagues exhibit early signs of stress.
As well as being the right thing to do, taking these steps without delay can make any stress-related claims more defensible.
That said, it does appear that the staffing picture is now improving and many care and nursing homes are taking positive steps to drive recruitment and improve staff retention across the sector. Whilst often challenging, care work is also, of course, hugely important to society and immensely rewarding for the care providers.
Care home managers are working hard to ease some of the financial pressures on their staff and to support them in other ways. For example, managers are increasingly implementing new shift patterns to enable staff with families to work more flexibly; instead of a 12-hour shift, for example, staff can be offered a pattern of four hours on, four hours off, four hours on, four hours off.
There is no doubt that dealing with legal claims and issues can be very stressful and difficult for all concerned. However, it is important to remember that care home managers are not expected to do this on their own and that support and guidance is always on hand via their insurers.
The key is to involve insurers as early as possible once there is a claim, or a circumstance that may give rise to a later claim. The insurers will then be able to arrange the appropriate advice and support. Prompt, early notification of claims and circumstances is of course a requirement of most insurance policies.
However, our experience is that early engagement with insurers and their legal teams often makes a very significant difference in achieving a better outcome to a claim or legal case.
It will also provide much-needed support for any colleagues who may be involved and will help to protect the business from any associated reputational and financial harm.
