The impact of COVID-19 through the lens of the care sector in Scotland
The Crown Office and Procurator Fiscal Service (COPFS) is responsible for investigating sudden and unexplained deaths in Scotland.
From 21 May 2020, all COVID-19 or presumed COVID-19 deaths in the following two categories have been reported to the COPFS:
- Deaths of care home workers and other front line staff, where the deceased may have contracted the virus in the course of their employment.
- Deaths where the deceased was resident in a care home when the virus was contracted.
Operation Koper is the name given to the unit that is investigating these tragic deaths. Since its inception in May 2020, officers have been gathering information which has caused disproportionate disruption to care home staff who have been required to cooperate while navigating the impact of both pandemic restrictions and the virus itself in their day-to-day activities.
In Scotland, the total reported number of COVID-19 related deaths of care home residents to COPFS, as of 31 January 2022, is 3,828.
Given the scale of the investigation, it is likely that it will take COPFS some time to confirm whether investigations into each death will result in: no further action; a Fatal Accident Inquiry; or criminal proceedings. It should be noted that, as of 28 October 2021, there were around 164 Fatal Accident Inquiries outstanding, with ten of these being at least five years old.
In the meantime, care providers will no doubt be conscious of the potential for civil claims, which come with, in most situations, a three year time limit for commencement of court proceedings.
In respect of employee injury claims, employers have a duty to risk assess the workplace environment in order to minimise the risk of injury. The emergence of COVID-19 has created new and unknown risks and as such, care providers have had to come up with creative solutions.
In heeding potential claims, employers should be able to evidence their infection prevention and control precautions. It is important to keep documented evidence of the specific COVID-19 risk assessments that have been carried out; any policy or procedure put in place; and proof of measures enacted to protect staff, including the provision of appropriate personal protective equipment.
As the pandemic has evolved, the available information on preventing its spread has increased. Employers should remain conscious of whether assessments, policies and measures put in place remain appropriate. What was considered suitable and appropriate in May 2020, may no longer be fit for purpose in February 2022. It is therefore imperative that employers remain engaged with current health information and official guidance, and review and update practice where required.
Care resident claims
In respect of injury claims relating to care home residents, the legal duty is that of reasonable care. The starting point in assessing any case, is considering the reasonableness of the care provided to the resident, in the context of what could reasonably be expected. In caring for residents throughout the pandemic, staff have had to consider the novel risks of isolation, use of PPE, and visits from family and friends. It is important that the care provided is documented in detail, is relevant to the specific care needs of the individual resident, and that decisions made have been in line with official guidance, policies and procedures.
The COVID-19 public inquiries
Ultimately, what should be considered as reasonable practice at any particular time, will become clearer following the conclusion of the two public COVID-19 inquiries.
Lady Poole QC, who will be chairing the Scottish COVID-19 inquiry, has been tasked with establishing the facts and lessons learnt from the strategic response to the pandemic in Scotland. The Scottish inquiry aims to “identify lessons and implications for the future, and provide recommendations”.
The UK COVID-19 inquiry, which is likely to consider similar issues, will be chaired by Baroness Hallett DBE, and is scheduled to commence in the Spring of 2022. It is expected that the risks of litigation or otherwise, will become apparent thereafter.