This week the media have reported that in a three year period there have been over 20,000 allegations of abuse by care home workers against the elderly and vulnerable. This is mirrored by an increase in claims arising from such allegations. They are often not straightforward and need careful consideration of a wide range of issues.
The Local Government Ombudsman, Michael King has noted there is a growing problem over standards of care homes.
Abuse is terrible for the individual victims and their families. For care homes the action to take and the consequences of such incidents are vast. Consideration must be made of the response to the victim and their family; immediate implementation of post disclosure safeguarding protocols; reporting to third parties; consideration of employer obligations. Registration with official bodies could be under threat, criminal charges could be brought, there may be reputational damage, there will be financial implications including the cost of meeting damages in individual claims, increased insurance premiums and criminal fines.
Insurance cover may provide some assistance. Understanding in what circumstances insurers will indemnify is essential. Compensatory damages arising from personal injury are likely to be covered by a public liability policy, save where there is an abuse exclusion in place. Financial sanctions arising from the criminal offence of ill-treatment or wilful neglect, which has been in force since 13 April 2015 and applies to both individual care workers and care providers, are unlikely to be covered. Penalties for the provider offence include unlimited fines, public reprimand and remedial orders to correct deficiencies.
With so many implications it is imperative to have been pro-active and taken all steps possible to prevent abuse and thereby also minimise the risk of claims arising. Some of the pro-active steps to take include:
- Policies – have up to date policies and procedures, setting out the standards of care expected of staff;
- Training – ensure that staff are aware of local policies and that appropriate and regular training is provided;
- Learn lessons – if complaints are made or issues are raised about a resident’s care, ensure that these are appropriately investigated so that lessons are learned and, if necessary, practices are changed to prevent a recurrence of poor care.
If there are allegations of abuse, evidence of appropriate up-to-date policies, staff awareness and training will be expected by whichever organisation is considering what has happened so as to determine whether the care provider’s activities are properly managed and organised and to minimise the risk of prosecution. Good record keeping is therefore also essential.
The reporting of 20,000 allegations suggests that there remains a lot of work to be done by some care providers to improve standards of care. With an aging population it is of benefit to us all that time and resources are applied to ensure that the good examples of care are the norm and reports of this nature become a thing of the past.
Michelle Penn, partner, BLM