Healthcare Counsel’s Weekly Zoom

15 July 2020

This week we were delighted to be joined Jodie Sinclair, head of employment, pensions and immigration at Bevan Brittan.  Jodie answered questions on some thorny issues regarding Covid and employment law.  The following is a summary of the discussion setting out general principles.  Providers should, however, seek legal advice in specific cases especially if considering disciplinary action.

Corridor countries and quarantine

At the time of writing, there are over 70 countries and territories on the UK’s exemption list.  People arriving into the UK from those places do not need to isolate for 14 days if they have not travelled to any non-corridor countries within the last 14 days.  The current list is available here.

Providers’ concerns include:

• Covid is a rapidly changing crisis. Countries currently on the list may soon be found to be unsafe, by which time residents and staff may be exposed risk.
• There remains uncertainty about how safe air travel is, especially as there is growing suspicion that Covid may be an airborne transmitted disease.
• Government guidance to care homes throughout the crisis has later proved to be misguided.

Employment law risks associated with requiring staff to quarantine when returning from corridor countries include:

• Employment law is not trumped by Covid considerations.
• Restrictions that go beyond government guidance – including requiring staff to take leave to cover a quarantine period for corridor countries – may not be regarded as reasonable management instructions and may be in breach of an employer’s duty to provide work, and the implied duty of trust and confidence.
• Refusing requests of staff to travel to non-corridor countries may constitute indirect discrimination as such requirements are more likely to affect those of a particular race or religion both of which are protected characteristics.
• Failure to pay for periods of quarantine may amount to unlawful deductions of wages.

Key considerations include:

• Staff are not entitled to SSP if they are fit to work and are returning from a corridor country.
• As with all difficult issues, engagement and communication is key.
• There are range of measures that could work if the employee agrees including unpaid leave and banking leave.
• Other practical solutions can include arranging rotas following leave that facilitates a quarantine period without reducing the number of hours staff work. Staff can also be asked to use the time after leave abroad to catch up on training.
• Depending on the needs of the business, providers may take the view that it is not currently practicable to grant leave requests due to the additional demands of Covid and the risk of using agency staff for cover.
• Providers may decide to impose a quarantine period for corridor countries and pay staff for special leave for that period.
• Providers making decisions based on health and safety obligations in respect of risk to residents and staff must be able to evidence an audit trail that includes engagement with staff, risk assessments and guidance at the time.
• Providers are advised to date stamp any government and other guidance relied on as it is changing at pace.

Testing

Providers concerns include:

• Some staff are resisting testing, possibly because staff are concerned that they will not be able to work following a positive result.
• Some providers have been told by employment law advisors provided by their indemnifiers that they cannot enforce testing.
• There are practical and legal practicalities about enforcing testing.

Key points include:

• Providers owe health and safety duties in respect of residents and staff, as well as further regulatory duties under the CQC regime and duties of care to staff and residents.
• Testing and PPE is a significant part of that equation. Whilst WHO guidance does not recommend employers test employees, the UK government has rolled out weekly testing for care home staff, based on the latest scientific evidence.
• There is unlikely to be any contractual provision about testing in current contracts.
• Asking staff to undergo testing is likely to be a reasonable management instruction.
• Speak with any individuals who decline testing to seek to understand their anxieties and explore if and how they can be managed.
• Advice should be sought if staff still refuse testing, as imposing a policy that staff are not allowed on site without testing could be regarded as a suspension. There may also be claims if it is alleged that the reason for a refusal is due to a disability (for example anxiety).
• Again, communication and engagement is important. Explain the health and safety obligations that underpin the request to test.
• A negotiated period of unpaid leave may be an option if the employee agrees.
• Care should be taken that policies are not applied selectively, as that could lead to discrimination claims.
• Test results are special category personal data. Accordingly, providers must consider the GDPR implications.  See my earlier post on this here.
• Future contracts can include a requirement to follow instructions relating to infection control measures.

Staff, including shielding staff, who are nervous about returning to work.

Key considerations:

• Shielding staff will be entitled to SSP until 1/8.
• For staff with a disability, there is a duty to provide reasonable adjustments.
• Accordingly, providers need to consider whether a staff member has a disability, and if so, what adjustments can be made.
• Medical suspension may be an option, but advice should be sought. There are special provisions in respect of pregnancies.
• As above, consideration should be given to any work that can be done from home (or that is not hands on) such as training or paperwork.
• In principle, an employee who is fit to work but refuses to work could be subject to disciplinary action.
• However, again there is a risk of a discrimination claim.
• As always, engagement and communication is key.
• That includes consulting on risk assessments in respect of returnees.
• Providers considering disciplinary action should seek advice.

Please let me know if there are any other topics you’d like covered in future Zooms – [email protected]

Introduction

It was great to see so many people on the Weekly Zoom on Wednesday.

I wanted to give my take on some of the data protection points. 

These views are entirely my own.  I stress that all of this is to give what I hope is a useful steer.  Those who wish to rely on this should seek legal advice as I cannot accept liability other than to clients who have engaged me to provide advice.

As a general comment, I think anything that you are doing to genuinely protect people’s health is likely to be lawful if you are complying with the notice requirements and have given consideration to the risks.   

Even if there are any inadvertent breaches, it is likely that these will be dealt with an a proportionate manner.  The Information Commissioner’s Office (‘ICO’) has published its regulatory approach during the Covid  which recognises the challenges organisations are facing.  The ICO states it is ‘committed to a an empathetic and pragmatic approach’ as a result.  So I wouldn’t worry to much about anything you do which is intended to protect people’s health.

 However, if you are sharing information about Covid status for any other purpose, that is clearly risky.  ICO’s regulatory approach above states:

               “We will take firm action against those looking to exploit the public health emergency through nuisance calls or by misusing personal information.”

And

               “We will take a strong regulatory approach against any organisation breaching data protection laws to take advantage of the current crisis.”

Data Protection Law in a Nutshell

Personal data is information about a person from which they can be identified.

To process any personal data, you need to be able to meet at least one condition from Article 6 of GDPR.

To process special category personal data (which includes data concerning health), you also need to be able to meet at least one condition from Article 9 of GDPR (and in some cases you also need an appropriate policy document in place).

Here is a summary of the conditions that are most likely to apply to the issues we discussed:

As to particular issues:

Testing temperatures of visitors as a precondition for visiting.

Whether or not a high temperature is a good indicator of Covid, the current guidance is that people who have high temperatures should self-isolate for seven days.  Accordingly, I think it perfectly reasonable to assure yourselves that visitors do not have high temperatures.  Indeed, I think providers are at risk if they don’t do so.  Whilst you could simply ask visitors to test before they come, staff performing a test is more reliable for a number of reasons (less likelihood for error due to staff familiarly with taking temperatures and better equipment, the test being done immediately before admission and no opportunity for visitors to give the wrong information whether unintentionally or not).  The visitor would of course need to consent to the test, but the lawful basis for processing the data would be 6(c) together with (most obviously) 9(h) and also possibly 9(b) and 9(j).  You would need to document how the data is being used and for what purpose in your privacy notice.   If you relied on 9(b) you would also need a policy document.

The ICO has useful guidance on testing staff most of which is applicable to testing visitors too.  The ICO recommends completing a Data Protection Impact Assessment and  provides a link to a simple template available here.

Visitor Agreements

‘Contract’ is a lawful basis for processing data.  In this case, you would not replying on that basis because the agreement is probably not an enforceable contract.  However, that does not mean that such agreements are not useful in mitigating the risk of transmission.  The agreement will set out the expectations of visitors very clearly in respect of disclosing information about any Covid symptoms, possible exposure to others with Covid, agreement to temperature testing and infection control measures on the premises.    

If you think that having an agreement (or asking a visitor to sign a policy) will mean that it’s more likely that visiotrs will read the document carefully and will attach greater weight to their obligation to comply with the requirements, it seems like a good idea.  Some people may object in which case you would definitely need to check that they have read and understood the policy and seek their verbal agreement to comply with the requirements.  

It’s really a matter for your judgment – providers on the front line are better placed to judge what will work best.  If you consider that it won’t make a difference whether people sign the document or not in terms of compliance, it may be preferable to go through the policy with each person before they are admitted.  Whichever option you choose, you should send the agreement / policy in advance of the visit so that visitors have a chance to read it before they arrive, not least to ensure that they don’t arrive at the home when they have a high risk of transmission.

Whichever option you choose, you would again be relying on the lawful bases set out above.

Communicating Covid Status of Staff or Residents

The ICO has a useful summary in its Covid guidance to healthcare providers.

               “As a manager of a care home, can I tell a resident or their family if another resident or member of staff may have contracted coronavirus?

Yes. Data protection doesn’t prevent you exercising your duty to ensure the health and safety of your residents. But you shouldn’t disclose the identity of any individuals unless you really have to. For example, a simple notice that there is a virus case on the premises, with instructions about what isolation precautions should be followed, would usually suffice.”

A joint statement from the Residents and Relatives’ Association, the National Care Forum, Skills for Care, CQC and the Care Provider Alliance (though not the ICO) includes the following:

“Care providers should keep residents and their family members as informed as possible about the situation in relation to the COVID-19 status of the home. This includes whether there are any suspected or confirmed cases amongst residents and staff, what steps are being taking as a result of this, how the care home is working to keep residents and staff safe, and how they will keep residents and family members informed on an ongoing basis.

Whilst data protection rules must continue to be observed and personal details of individual cases may not be shared, providing a general update about the COVID-19 status of the care home, and the steps being taken to deal with any cases and mitigate the risk to others, will help to allay fears.  As stated above, this will also help to protect the resident’s and family member’s right to private and family life (protected by Article 8 of the Human Rights Act). As the care home is the resident’s home and its COVID-19 status is a factor which may put the resident at risk, keeping residents and family members informed allows them to weigh up any steps they may need to take to mitigate this risk, and to participate in care decisions.”

One of the case studies of good practice includes the statement:

              “We always notify the families of people living in our care homes where COVID-19 is suspected or confirmed.”

Both the ICO guidance and the joint statement accordingly state that you can share information about there being Covid cases in your home as long as it does not disclose information about individuals (unless ‘you really have to’).  Neither expressly discusses communicating when you have no cases. 

Saying you have no cases discloses health data about each resident which as set out above is special category personal data.

If the information is disclosed to residents, or those lawfully acting on their behalf if they lack capacity, I would argue that disclosure is covered by 6(c) and 9(h)  ‘necessary for the provision of health or social care’ given that there is a duty of candour owed to them and CQC, the social care regulator, has expressly required providers to be transparent with stakeholders about Covid.

The issue of disclosing information to families of those with capacity, or to families not acting on their behalf, is more difficult.

I would bear in the mind the following:

1. The Joint Statement, though not a statement of the law, sets out the importance of being transparent.
2. The ICO’s Covid statement above suggests that it would be sympathetic in the current climate.
3. However, using a ‘no Covid’ message for marketing purposes, rather than for reassuring residents and relatives, would constitute ‘breaching data protection laws to take advantage of the current crisis’ which risks ICO enforcement even during the current crisis.

One way of handling this that we discussed on the call is to have a Covid policy that sets out what you would do if you had any cases including that you would be open and transparent about it as recommended by the Joint Statement.   Families will then of course be able to work out that there are no cases if you haven’t told them otherwise.

For all the above reasons, I think the risk of enforcement for communicating to families that there are no Covid cases is low, but the disclosure of that information more widely for marketing purposes is much riskier.

Outside or indoor visits?

Providers need to do deicide this on a case by case basis.  The obvious overall goal is to minimise the risk of transmission whilst facilitating visits that reduce the adverse affects of isolation on the resident.  Drive-through visits where everyone is outdoors, there is no risk of physical contact and distance can be easily regulated, seems a good option in many cases.  However, that will not always be possible.  Most obviously, those at the end of life may not be able to access outdoor spaces.  Where visits are indoors, the current guidance suggests that they should take place in residents’ rooms.  You should consider barriers such as full face shields, as well as other PPE.  Visitors will also need to wash hands before and after the visit, and assurances about their risk of Covid established through a questionnaire / agreement coupled with testing temperatures as above.  See my last blog for more thoughts on the risks and how to manage them.

Questions at daily briefing

The current guidance remains that visits should only be in exceptional cases, and only end of life is given as a concrete example of that.  That guidance dates back to 2 April.  Facilitating visits outside that guidance carries all the risks set out in my blog last week.  The sector is clearly in desperate need of updated guidance.  Anyone can submit a question to be asked at the daily government press briefing.  The questions are selected by an independent polling company.  You can have your question read out rather than recording a video if you prefer.  You can ask questions here.

Next session – Wednesday  10 June, 10.30

The dial in details are as before.  Please email me if you’d like to join for the first time (email below).  Alex Ruck Keene will be joining us to answer questions about Covid and Mental Capacity.  Alex is without a doubt one of the star lawyers in this field, but also has a passion in education and best practice.   If possible please email me in advance if there are any particular MCA / DoLS questions you have.  Please also let me know if there are any other topics you’d like covered.

I hope to see you then!

Jonathan

UPDATE – 30 May 2020

Since writing and posting the blog below, the government has updated its social distancing guidelines.  It includes the following:

“If you have any of the following health conditions, you are clinically vulnerable, meaning you are at higher risk of severe illness from coronavirus. You are advised to stay at home as much as possible and, if you do go out, take particular care to minimise contact with others outside your household.

Clinically vulnerable people are those who are:

• aged 70 or older (regardless of medical conditions)
• under 70 with an underlying health condition listed below (that is, anyone instructed to get a flu jab each year on medical grounds):
• chronic (long-term) mild to moderate respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
• chronic heart disease, such as heart failure
• chronic kidney disease
• chronic liver disease, such as hepatitis
• chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), or cerebral palsy
• diabetes
• a weakened immune system as the result of certain conditions, treatments like chemotherapy, or medicines such as steroid tablets
• being seriously overweight (a body mass index (BMI) of 40 or above)
• pregnant women

As above, there is a further category of people with serious underlying health conditions who are clinically extremely vulnerable, meaning they are at very high risk of severe illness from coronavirus. You, your family and carers should be aware of the guidance on shielding which provides information on how to protect yourself still further should you wish to.”

The points set out below are intended to help providers start to prepare for visitors when guidance changes. They may also assist those who are already facilitating visits despite visits being in breach of regulations and guidance.  There is no guidance permitting visits to care homes yet other than for end of life care.  Facilitating visits therefore exposes providers to a range risks that can be mitigated but not eliminated even with the greatest of care.

The context

Healthcare Counsel’s Weekly zoom session on Wednesday centred on planning to open homes to  visitors.  I commented that providers who are not currently facilitating visits nevertheless need to start preparing now because there has been a pattern of guidance and law changing without notice.  True to form, yesterday afternoon the Prime Minister announced that social distancing guidance would be eased as of Monday so that up to 6 people from different households could meet outdoors even on private premises.  There is no reason to think that will not include grounds of care homes. [UPDATE: Note the updated social distancing guidelines above regarding clinically vulnerable and extremely clinically vulnerable groups].

Some providers  have already started to facilitate visits.   Some have held socially distanced garden tea parties.  Others have been arranging drive-through visits.  Until Monday, the visitors themselves would have been in breach of the regulations because visiting family is not covered by the regulations.  Moreover,  in both “Admission and Care of Residents during COVID-19 Incident in a Care Home”, published on 2 April  and “Covid-19: our action plan for adult social care” published on 15 April, the government recommended that visits should be limited to those who are at end of life.   CQC’s current guidance also reflects that.

It is easy to see why providers took a view, though.   Isolation from family is having a devastating impact on residents’ quality of life at at time when they may not have much life left.  Providers reported that some residents have become depressed and withdrawn without visits from their families, and some providers have even seen increases in physical frailty including pressure sores.

It is equally easy to why other providers have remained in complete lock-down.  As the guidance remains in force, it would be difficult to criticise a provider for following it, particularly given the nature and degree of the risks posed by Covid, set out below.  In contrast, the risks to residents and staff is real and grave.

Both those who have already opened up their homes to visits, and those who must now at least start planning to do so, need to consider the risks carefully and manage them effectively.

The Risks

For those planning to restart visits, the following risks must be considered:

• Staff and residents contracting Covid from visitors.
• Visitors contracting Covid from staff and residents.
• Visitors contracting Covid from other visitors.
• Heightened risks to clinically vulnerable residents.
• Claims from staff, residents and/or visitors who contract Covid.
• Regulatory enforcement in relation to resident safety.
• Regulatory enforcement in relation to restricting visits.
• Scrutiny from commissioners, public health, and safeguarding.
• Embargos if there are new Covid cases or concerns about safety.
• Insurers not covering any losses caused by Covid either because providers have not followed guidance and best practice or because they have withdrawn cover relating to Covid entirely when renewing insurance policies (several providers have reported this).
• Data protection breaches in relation to handling information about Covid cases.
• Staff concerns about being exposed to, and/or residents being exposed to, greater risk.

Managing the Risks

Points to consider include:

• Compliance with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. That will mean from Monday that visits can be in the grounds of care homes but must be outdoors.   Likewise, there should be no more than 6 people meeting together at a time, maintaining a minimum distance of 2 meters from those outside their own household.
• Engaging with your local health protection team.
• Discussing your plans with your insurance brokers and ensuring you have clarity as to the extent of your cover.
• Consulting with staff and considering any concerns raised.
• Drafting a policy and procedure regarding visits. This will include:
  • Preparing the environment, including cover for inclement weather.
  • How visit times will be staggered to ensure social distancing is maintained, and that there are sufficient staff available to facilitate meetings.
  • Duration of visits.
  • Cleaning the environment before and after each visit.
  • Deployment of staff.
  • Use of PPE by staff and visitors.
  • Obtaining resident consent (or LPA / Deputy / best interest decisions as appropriate for those lacking capacity).
  • Planning for each resident including risk assessments. Assessments should cover how the resident can safely access and meet visitors in the environment, and managing any particular challenges om ensuing that social distancing is maintained throughout the visits.
  • Consideration of how shielded residents will be protected from the risks of visitors.
  • How information about staff, residents and visitors relating to Covid will be processed
  • Maintaining contact through other means to supplement visits in person.
• Drafting a visitors’ agreement in which visitors agree to comply with the visiting policy, including infection control and declaring any symptoms or exposure to anyone with symptoms in the preceding 14 days.

None of this will eliminate the risks set out above but  will help to mitigate that risk.  Providers should regularly keep up to date with government and CQC guidance.  SCIE usefully curates government guidance here: https://www.scie.org.uk/care-providers/coronavirus-covid-19

The next Healthcare Counsel Weekly Zoom will take place at 10.30 on Wednesday.  Please email me if you’d like the login details.  Please also let me know if there are any topics you’d like covered.  [email protected].