The Covid-19 pandemic was an unprecedented global event that impacted millions of lives around the world and in the UK.
At the forefront of those tackling repeated waves and strains of the deadly disease was the care home sector. From February and March 2020 onward, coronavirus spread quickly through many care homes with significant numbers, including many residents living with dementia, sadly dying.
As we speak a UK Covid-19 Inquiry has been set up to examine the UK’s response to and impact of the Covid-19 pandemic, and learn lessons for the future. However, and somewhat cart before the horse, we are now seeing more and more inquests considering those very issues outlined within the four modules and terms of reference for the Inquiry, namely resilience and preparedness, decision and political governance, and impact on healthcare and vaccines.
From May 2023 through to August of this year, Robert Dacre of 2 Hare Court Chambers and I appeared at an inquest on behalf of a London-based care home. The scope of the inquest included discussion regarding the management of the deceased’s care which led to hospital admission, delays in being administered the AstraZeneca vaccine, (rolled out in early 2021), dangers of the vaccine itself being administered to a resident while unwell and the expected regularity of obtaining oxygen saturation observations.
Following a lengthy Inquest, HM Coroner considered the evidence before him and returned a short form conclusion of ‘Natural Causes’, and commented specifically on the adequacy of infection control measures implemented at the care home.
The conclusion was a favourable one for our client. In this article, Robert and I outline some of the main issues we thought, in approaching an inquest in which Covid is said to have a causative link to the cause of death, may be of assistance to other institutions:
1. A careful approach needs to be taken to assist the coroner with the guidance that was available at the relevant time. Our recent experience is that guidance that featured in the evidence, on close inspection, post-dated the relevant period or was otherwise not applicable.
During the Covid pandemic, in particular, at the height of the second wave, national and local guidance changed on a weekly, and sometimes daily, basis. There was also, in effect, overlapping guidance for different healthcare contexts at different times. While some historical guidance is available online, the majority is not.
As a starting point, it is likely to be necessary to locate the relevant guidance documents that were in force at the time.
2. Documentary guidance was only part of the picture in the response to Covid. It is also important to consider what other forms of advice and guidance were available from local authorities, professional bodies and the government.
The evidence in our recent inquest was that there was almost daily liaison with the local authority regarding infection rates, infection control measures and spikes in locally reported cases. The coroner should be made aware that cooperation of this type was taking place.
3. It may also be necessary to demonstrate the extent of general compliance with infection control procedures and other Covid guidance at the time. If CQC or local authority inspections had taken place either before or after the relevant period, reference should be made to these and if necessary, relevant documents obtained.
4. It may also be necessary to explain how the care home liaised with other healthcare providers during the pandemic, i.e. general practitioners, community nurses and hospitals. To the extent that this liaison changed during the pandemic (either for infection control or other reasons), this should be made clear.
5. The coroner should also be made aware of the particular difficulties faced by residential care homes at the time to amend procedures as the guidance changed and to respond to developments in the illness, all the while dealing with the tragic consequences of the pandemic to many of their residents. This is perhaps easily forgotten. Efforts should be made to explain to the coroner the complex management issues that arose at the time.
NB: Please note that Module 6 of the UK Covid-19 Inquiry, examining the care sector across the UK, will open in December 2023.
Abdul Khan - Assistant Lawyer (Keoghs LLP – Crime & Regulatory)
Robert Dacre (2 Hare Court Chambers)
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