• With nearly two months to go, there have already been 15 successful prosecutions by CQC this year.
  • That is the highest number of convictions by CQC  in any calendar year.
  • Only five cases involved deaths. This suggests that CQC has lowered the threshold of harm in relation to prosecutions.
  • Safety remains the main theme of prosecutions, though CQC is now also regularly prosecuting for breach of the duty of candour.
  • The fines are highly variable. Whilst not strictly applicable to CQC cases, the Definitive Sentencing Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences guides courts to determine fines according to
    • The turnover of the defendant; and
    • its culpability; and
    • harm (determined by multiplying the seriousness of the harm against the likelihood of harm).
  • In determining the culpability, sentencing courts will consider the extent to which standards were followed. Significant efforts to address risk is consistent with low culpability.  Failing to comply with standards, failing to make appropriate changes and allowing breaches to subsist over a long period are all consistent with high culpability.
  • To mitigate the risks of high fines, as well as incidents occurring in the first place, providers should accordingly be able to evidence a strong culture of compliance supported by effective systems, training and audits.
  • In addition to CQC prosecutions, one care provider was convicted of corporate manslaughter and sentenced to a fine of over £1million in relation to the death of a resident from scalding in a hot bath. There have also been prosecutions of individuals for ill-treatment and wilful neglect with both convictions and an acquittal.
Date Provider Facts Fine
8 January 2021 Five Star Homecare Leeds Ltd Unregistered domiciliary care agency. £1,500 fine, £10,380.91 costs.
2 February 2021 Freemantle Trust Failures in policies and procedures that enabled an untrained agency worker to carry out oral suctioning. £2,000 fine, £7,000 costs.
4 February 2021 St John’s Nursing Home Limited Resident death following fall from care home window with inadequate restrictor. £80,000 fine, £3,474 costs.
9 March 2021 Richmond Psychosocial Foundation International Change of care and support offered at service for people with eating disorders and mental health issues.  A resident took their life that CQC attributed to the changes. Provider: £40,000 fine, £2000 costs.


Manager: £3,000 fine, £10,000 costs.

23 April 2021


Oakdene Care Home Limited Fall from hoist leading to injuries.  Resident died in hospital a few days later.


£10,000 fine, £12,915.88 costs.
30 April 2021 Spire Healthcare Limited Failure to comply with duty of candour in relation to surgical procedures, leading to prolonged pain and requirement for remedial surgery. £5,000 fine, £14,984.36.
7 May 2021 Ideal Care Homes (Number One) Ltd Attack on a resident in a residential care home by another resident who had been physically aggressive frequently in the past. £140,000 fine, £14,361 costs.
18 June 2021 East Kent Hospitals University NHS Foundation Trust Failures in safe care during delivery of baby resulting in the baby’s death at 7 days. £733,000 fine.

£28,000 costs.

29 June 2021 Lanemile Limited Death caused by blocked catheter. £80,000 fine, £17,000 costs.
14 July 2021 Girl Friday Somerset Limited Unregistered domiciliary care agency. £5,000 fine, £11,141 costs.
16 July 2021 Kingfisher Domiciliary Home Care Limited Unregistered domiciliary care agency. £5,000 fine, £2,000 costs.
23 July 2021 Teignbridge House Care Home Limited Fall from window causing life-changing injuries. £21,000 fine, £12,491 costs.
2 September 2021 Pemberdeen Laser Cosmetic Surgery Clinic Limited Failing to display CQC rating. £500 fine, £4,520 costs.
17 September 2021 Unnamed. A resident was raped by another resident who had regularly displayed inappropriate verbal and physical sexualised behaviour. £363,000 fine, £12,441.28 costs.
1 October 2021 Lifeways Community Care Ltd A resident caused life-changing injuries to another resident after trapping him in a room.  Only agency staff were on duty who did not have access to the room codes to stop the attack. £460,000 fine, £35,000 costs.


Please contact Healthcare Counsel if you need  help with any CQC matters, or other regulatory issues:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk


My take on ‘Help’, the Channel 4 drama by Jack Thorne about a Covid outbreak in a care home (Spoiler alert).

It is incredibly welcome that the messages ‘care homes don’t count’ and ‘no one is coming’ were voiced through ‘Help’.  Just as important was showing how committed carers can be.  Almost without exception, the stories presented about care homes in the media are the horrors of poor care.  Why is that?  Why is the NHS always the hero, and social care the villain?  Four reasons make a significant contribution:


  1. We don’t want to confront aging and the unhappy challenges that will face us, particularly as they can’t be fixed. In contrast, we tell ourselves that hospitals will restore us to good health.
  2. We feel guilty for outsourcing the care of those we love. In reality, properly funded care by well-trained professionals is usually the best option for people needing care.  We think that hospital care is different as it requires doctors and other professionals.  However, caring also requires highly specialised skills deployed by staff who are called to the caring professions.
  3. Social care provision is usually operated for profit. The public seem to be suspicious of this.  They generally don’t realise that GP practices are generally profit-making businesses.
  4. Poor care makes a good story.


It was refreshing, then, to see a care home provider who seemed to care.  Well done, Mr Thorne, for showing how providers tried to do the right thing and help to free up beds by taking hospital discharges, only for them to bring Covid into the home.  Bravo for pointing out how they were provided with neither the tests nor the PPE that they needed to have any chance of controlling the virus.  Thank you for showing the initiative and hard work providers took in sourcing their own PPE.


As to the night when Sarah was alone in the care home, it is welcome that the public were given a glimpse into what the Covid crisis was really like on the ground; it was a battlefield.  In the film, Sarah had interactions with three residents that night.  The reality would have been far, far worse.  With staff shortages and no agency availability, carers may have been looking after far more residents on night shifts, many suffering or dying from Covid.


Thorne should be applauded, therefore, for calling out the preposterous claim that a protective ring was placed around care homes.


If he had wanted an appropriate final act, Thorne  may have been interested in some of my clients who, after facing the horror of outbreaks, sometimes caused by hospitals discharges, and often with no support from any other agencies (‘no one’s coming’), they then found themselves the subject of Safeguarding Adults Reviews as though it was the care homes’ fault.   You couldn’t make it up.  But then again, you don’t have to.


Instead, Mr Thorne wrote a fanciful final act in which Sarah abducts Tony from the care home after he is prescribed tranquilisers to prevent him from absconding.   Thorne reverts to tired tropes of providers doing the easiest thing, rather than the best thing.  On a dramatic level, it doesn’t work at all and is inconsistent with the rest of the film, its core themes and the owner’s character as established to that point.


Why did Thorne do it then?  See point 4 above: Thorne chose narrative over authenticity and the vital themes he was trying to portray.  He thought it would make a good story.  As well as the final act falling flat and rightly being panned by some critics, it was a wasted opportunity to laud care homes as heroes as they should be.


So thank you, Jack Thorne, for ‘Help’, or at least for most of it.

It is difficult to overstate the significance of Friday’s Supreme Court judgment.  The civil standard of proof will apply to all inquests in respect of all conclusions including unlawful killing.

Healthcare providers are likely to be particularly affected by this.  In cases where, previously, bereaved families would have advocated for conclusions of neglect, they will now be pushing for unlawful killing conclusions.  The elements, after all, are very similar:


Neglect means: Gross


failure to provide basic medical attention


that more than minimally, negligibly or trivially contributes to death.


Unlawful killing – Gross negligence manslaughter means:


Gross[1] breach of duty that contributes significantly to the death.
Unlawful killing –

Corporate Manslaughter means:

Gross breach of duty by an organisation in the way its activities are managed or organised (providing the way in which its activities are managed or organised by its senior management is a substantial element in the breach)


that causes or contributes to the death.


Until Friday, submissions in respect of unlawful deaths were very rare in Coroners’ Courts.  That will undoubtedly change.  Implications will be far-reaching and include the following:

  1. The bereaved will far more frequently seek unlawful killing conclusions.
  2. Interested persons will more frequently adopt a cut-throat approach (where each interested person seeks to avoid blame by criticising others).
  3. Given the risks, more interested persons and witnesses are likely to be represented.
  4. More employees will be represented separately from their employers.
  5. Providers will look to insurers for legal expenses cover in more cases, and insurers will take a keener interest in inquests given the risks.
  6. Inquests are likely to take longer and will be more costly.
  7. There will be pressure on investigating and prosecuting authorities to take action following conclusions of unlawful killing.
  8. Witnesses are much more likely to be guarded in their evidence, potentially to the detriment of effective investigations.
  9. There is bound to be a flurry of judicial reviews challenging the decision of whether to leave the conclusion to juries.

Healthcare providers would be well-advised to be more cautious about inquests and to seek legal advice at an early stage.  Providers will be in a very difficult position if they turn up to court unrepresented against a legally represented family seeking an unlawful killing conclusion.

[1] Does gross always means the same thing though? In the context of gross negligence manslaughter and corporate manslaughter, ‘gross’ means ‘so bad in all the circumstances as to amount to a criminal act or omission’.  That does not apply to the inquest conclusion of neglect as it is not a criminal offence.  Coroners and juries will therefore have to interpret the same word in two different ways.


Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk


CQC has sent me its internal guidance on its transitional inspection framework under the Freedom of Information Act.  It is essential reading for those concerned with regulatory compliance of health and social care services.  I attach them below.

There is a guidance document that applies to all services – ‘Inspection guidance for Transitional Monitoring Activity’ – supplemented by 6 service specific guidance documents, one each for, Independent Hospitals (Dialysis Services), Independent Services for those with Learning Disabilities and/or Autism, Independent Ambulance Services, Adult Social Care, Primary Medical Services and NHS Trust level (urgent and emergency care services).  CQC says others will follow.

Of great practical use, the documents set out not only the questions that CQC will be asking on TMA calls, but also the sources of evidence inspectors may wish to look at to obtain supporting evidence.  That will help managers to prepare for the calls.

The disclosed documents provide a far more detailed picture of the TMA (a term new to me).  Details include:

  • Inspectors have a TMA app that includes all the services in their portfolio.
  • The services are prioritised automatically based on previous ratings and other (unspecified) data held by CQC. This is a new feature.  Such automation of regulatory decisions raises questions about fairness as providers will not have access to the underlying data or the opportunity to comment on them.
  • Inspectors may obtain evidence from a variety of sources before the TMA call. That includes:
    • Local Authority/other stakeholder feedback
    • Last inspection/registration report
    • Feedback from people using the service and/or people who support them
    • Feedback from staff
    • Evidence of how the provider gathers and acts upon the views and experiences of people using the service.
  • There is a particular emphasis on obtaining people’s experience of care. If that cannot be obtained reliably, CQC will consider an inspection even if no risk has been identified.  Providers may, therefore, wish to consider what evidence about service users’ experience they can obtain and make available in the event of a call.
  • Inspectors are also guided to consider closed cultures.
  • The TMA call will be on Teams or by phone.
  • The guidance discourages recording of calls but does not prohibit providers from doing so. Indeed, paragraph 14.3 of the Inspection Guidance provides a range of options to inspectors should providers wish to record the calls.
  • As above, the questions the inspectors will ask are set out in the service specific documents.
  • CQC expects requested evidence to be available by screen sharing during the call or otherwise within 24 hours. Inspectors have discretion to accept documents beyond that but no guidance is provided on how to exercise that power.
  • The inspector will give a risk score between 1 and 5 for each KLOE. 1 is very high, and 5 is very low.
  • Risk is based on level of harm (major, moderate, minor, disproportionate restrictions of liberty) and probability of harm (harm has occurred, probably, possible).
  • Usually, further regulatory action will only be considered if a service is scored 1 or 2 in any KLOE.
  • There is an exception in respect of cases where 3 is awarded but moderate harm or disproportionate restrictions of liberty or loss of human rights is possible. In such cases, inspectors will use their judgement as to whether to the TMA outcome is changed and a management review meeting (MRM) will be held to discuss a proportionate response.
  • Adult Social Care and PMS services will receive a summary record if there is to be further regulatory action. Hospitals may do so in time.
  • TMA calls are not inspections and will not result in a change of rating.
  • This means that, as anticipated, services that were rated as requires improvement will not be inspected if CQC is content with the level of risk following the TMA call and so their ratings will not change.
  • Scores of 1 require a MRM within 24 hours and/or alerting other stakeholders such as the police and safeguarding.
  • Scores of 2 will require a MRM within 2 working days. Services where a 3 was awarded but CQC considers that regulatory action is needed will be subject to a MRM within 5 working days.
  • The MRM will decide what regulatory action is required.
  • TMA calls are by consent. Any refusal to engage will be considered at a MRM.  I think ordinarily that will result in an inspection, though it could lead to a statutory request for information.

Please let me know your experiences of TMA calls.  Are they fair?  Are they a reliable way of assessing risk?


Jonathan Landau

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk


06 20201005 Inspector guidance for Transitional Monitoring Activity CQC IAT 2021 0419 REDACTED

07 20201007 TRA NHS Trust level urgent and emergency care conversation CQC IAT 2021 0419

05 20200925 TMA PMS guidance and prompts QC IAT 2021 0419

01 20200909 ASC Inspector Guidance Transitional Monitoring Approach CQC IAT 2021 0419

04 20200921 TRA Guidance for Independent Ambulances CQC IAT 2021 0419

03 20200921 independent dialysis Applying TRA guidance Hospitals CQC IAT 2021 0419

02 20200921 IH LD and Autism Applying TRA Guidance Hospitals CQC IAT 2021 0419


Since discussing CQC’s transitional framework on Wednesday’s Zoom, CQC published further information about it on Thursday, available here: https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/transitional-monitoring-approach-what-expect

The process will be:

  1. CQC will review information from a variety of sources.
  2. CQC will hold a conversation with providers either by phone or using Microsoft Teams typically lasting 1-2 hours.
  3. CQC may ask providers to share your screen during the call to share information, or may ask providers to send encrypted documents within 24 hours.
  4. Based on the discussion and evidence, CQC will decide whether to take further action including an inspection.
  5. It will also produce, but not publish, a record of the discussion.

CQC has published the questions that will be asked during the monitoring call.  They are targeted questions drawn from the existing KLOEs and key questions. They are available here: https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/monitoring-questions-adult-social-care-providers.  Providers would be well-advised to make sure that all managers have prepared answers to the questions and have collated supporting evidence.

We also discussed the government’s Adult Social Care Covid-19 Winter Plan.  It sets out expectations for providers as well as national and local bodies.  Providers should therefore take note of the content.  It’s available here:  https://www.gov.uk/government/publications/adult-social-care-coronavirus-covid-19-winter-plan-2020-to-2021/adult-social-care-our-covid-19-winter-plan-2020-to-2021

We also discussed the Test and Trace App. Of note, the supporting guidance states that the app should be paused when:

  1. When PPE is worn
  2. When employees are behind a Perspex or similar screen
  3. When phone are kept in a locker or communal area.

The next zoom will be on 21 October.  Email me if you’d like the dial in details: jlandau@healthcarecounsel.co.uk

Yesterday (16 September), CQC published a joint statement of Chief Inspections about the transitional inspection framework that is expected to run until next spring when the new inspection framework is due to launch.  Here are the key points, and the implications for providers.

Key points

  • Launches on 6 October 2020 for adult social care and dental services.
  • Initial focus on safety, access to services and leadership, but based on existing KLOEs.
  • Use of information for all available sources including from Provider Collaboration Reviews.
  • CQC promoting feedback using CQC’s ‘Give Feedback on Care Services’
  • On-site inspections limited to obtaining evidence that cannot be obtained by other means.
  • No return to inspections at fixed intervals.
  • Focus on providers where CQC has concerns.
  • If CQC is satisfied there is a low level of risk after conducting a desk top review of monitoring information, it will let providers know but this won’t change the rating. However, in time, CQC proposes including a short statement on the service’s page confirming the outcome.
  • If the review suggests a risk, CQC will inspect and review any or all KLOEs. However, as inspections will be targeted based on risk, not all KLOEs may be inspected meaning there will be fewer changes of ratings.



  • Services that are currently rated as Requires Improvement who have invested in improving quality are likely to be the big losers because the level of risk may now be too low to warrant an inspection, and so there may be long delays before the ratings are raised to Good.
  • Similarly, those services that have worked hard to raise standards to Outstanding are likely to be disappointed as it seems unlikely that CQC will inspect them soon.
  • Given that ratings are likely to be out of date in many cases, providers will need to consider novel ways of communicating improved quality to commissioners and prospective clients. Certainly the sector will need to educate commissioners that, frankly, dated ratings will not be a reliable indicator of quality.
  • If occupancy fails to recover due to an outdated rating, that should be raised with CQC as a matter that could ultimately threaten the viability of the service. CQC should be invited to inspect on that basis.
  • CQC will be leaning heavily on data from a variety of sources. It is vital for providers to identify and resolve concerns with stakeholders promptly to avoid falling into CQC’s sights.
  • If providers received positive feedback, they should signpost the CQC feedback feature (link above).
  • The sector will need to keep a close eye on whether elements of the system lead to unfairness. For example, will providers have access, and be given the opportunity to respond, to the information that CQC uses for its initial desktop review?  That information  will undoubtedly prime CQC’s view of the service, and consequently its final judgments (see my article on unconscious bias and CQC here).

The joint letter is available here. I will blog again when I receive CQC’s internal guidance.


If you need any help with CQC or any other healthcare regulatory matter, please get in touch:

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk



28 July 2020

On 26 and 27 of February 2020, the Supreme Court heard the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire.  The issue was whether the standard of proof for suicide in inquests is beyond reasonable doubt, as had been thought since at least 1984, or on the balance of probabilities, as held by the High Court and Court of Appeal in this case.

The judgement is still awaited.  Are we in for a surprise though?  Might the Supreme Court rule that not only does the civil standard apply to suicide but also to unlawful killing?

There are a number of arguments in favour of this outcome:

  1. Inquests are civil cases. The civil standard of proof is on the balance of probabilities (more likely than not) rather than the criminal standard (beyond reasonable doubt).
  2. The legislation makes no provision that the criminal standard applies to findings of unlawful killing.
  3. The argument that findings of unlawful killing (on a balance of probabilities) would prejudice criminal trials is not tenable. It is settled law that the findings of one court do not bind another.  Moreover, as Lord Reed pointed out at the hearing, the potential for difference outcomes exists in any event.  Currently, an inquest could reach a conclusion of unlawful killing, but the case could still lead to an acquittal following a criminal trial.
  4. Even if there was such inconsistency, that at best is undesirable. It does not point to what the standard is one way or the other.
  5. There are currently some occasions when a civil court has to apply the civil standard in relation to criminal offences. For example, the Criminal Injuries Compensation scheme (and its associated Tribunal) must apply the civil standard to determine whether a crime has been committed which is a precondition for an award under the scheme.
  6. Incontrovertibly, the standard of proof for narrative conclusions is the civil standard. Such conclusions could in principle include findings on all elements of a criminal offence.   It is accordingly difficult to see why there should be a higher standard for a short form conclusion of unlawful killing.

The consequence of such an outcome would undoubtedly be far-reaching.  Unlawful killing will be the appropriate conclusion in more cases.  Bereaved families will more frequently make submissions in favour of that conclusion.  The risk to those whose actions or omission may have contributed to the death will accordingly increase.  Those risks include risk to reputation, an increased risk of prosecution and of claims.  It is likely that there will be more representatives at hearings, and insurers will routinely take an active role in inquests.   Inquests would be even more stressful for employees than they are now. More staff will wish to be separately represented, especially where they allege that their involvement in the death was affected poor management, training, or lack of resources.

There are also resource implications for the Coronial system, already under strain in many areas due to cuts in local authority areas.

It’s not the outcome anyone is expecting, but watch this space…..

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.



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 – jlandau@healthcarecounsel.co.uk

Healthcare Counsel’s Weekly Zoom last Wednesday concentrated on mental capacity and Covid.

Liberty Protection Safeguards

There was no way the LPS can be implemented by October as initially planned as the regulations and Code of Practice have still not been issued. Indeed, a draft of the Code of Practice has not yet been issued, and following that, there will be a period of consultation before it is finalised. In short, it does not look like the LPS will be implement soon. A new timetable will be announced in due course.

However, there is every reason to think that the LPS will be implemented eventually. The LPS were proposed following a project by the Law Commission, the body responsible for reviewing law in England and Wales and making recommendations for legal reform. A protocol agreed between the Law Commission and Government in 2010 included a requirement for a relevant minister to give an undertaking that there is a ‘serious intention to take forward law reform’ in the proposed area before the Lord Chancellor approves inclusion of a project in the Law Commission’s program. Moreover, there is both a practical and legal need for reform. Currently, DoLS only applies to care homes and hospitals and of course people can be detained in other places. Currently, the only way to do that lawfully is to apply to the Court of Protection which is costly and burdensome to all involved. There is also need for a regime that includes children aged 16 and 17 who are not covered by DoLS.

In short LPS is delayed but is likely to be implemented eventually. Without the regulations and Code of Practice, we only have the skeleton of the regime so it would make sense to wait before investing in training.

Assessments during Covid

DHSC issued helpful guidance on DoLS and Covid available here.  It includes the following:

“To carry out DoLS assessments and reviews, remote techniques should be used as far as possible, such as telephone or video calls where appropriate to do so, and the person’s communication needs should be taken into consideration.”

In some cases, for example for people who find direct face to face communication distressing, remote assessments can be more effective than on-site assessments.

Providers facing requests by local authorities to visit homes to conduct assessments should draw their attention to the guidance and explain their concerns about the risk of Covid transmission. If local authorities persist, providers should in the first instance seek their reasons as to why they do not consider that assessments can be conducted remotely. In some cases, the local authority may have valid concerns in respect of certain individuals and their particular needs. The starting point should be an attempt to work in collaboration to facilitate a high-quality assessment without requiring risky visits.   Each case must be carefully considered in a person-centred way. A position by a local authority that face to face assessments are its usual practice, as reported by one contributor on the call, is not adequate.  Nor would a blanket refusal by a provider to permit visits by assessors under any circumstances.

The guidance also suggests being pragmatic by taking into account evidence taken from previous assessments of the person.

Covid Testing and Mental Capacity

39 Essex Street’s Court of Protection team published a guide to this topic available here. It is a clear and useful guide that I recommend as a first port of call.

For those who may lack capacity in relation to the decision as to testing, the process should be as with all decisions:

1.     Assess whether the person has capacity to make the decision for themselves (with support if needed). That includes understanding the information relevant to the decision. which in turn includes, among other things, understanding the consequences of a positive test such as isolation. This is not a simple issue because of the complexity of the government guidance: a person may be required to isolate if they do not have a test at all but have symptoms, or if they live with others who have had Covid, regardless of whether they are tested.

2.     If the person lacks capacity, determine whether anyone is lawfully authorised to make the decision on their behalf (either a health and welfare LPA or a Deputy). Check the documents to ensure that the authority covers this decision.

3.     If there is no one who has authority to make the decision on their behalf, make the decision in their best interest. The 39 Essex Street guide is particularly useful here. A test can be in a person’s best interests even if it is intended to protect people other than the resident  The resident’s previous wishes to be a good citizen come into play here. Even in cases where it is clear that the person would not have wished to be tested, it may be possible to argue that testing is lawful as other factors are also important in determining best interests. The MCA requires consideration of all relevant circumstances and that includes, in this case, risk of harm to others. As with all best interests decisions, there should be appropriate consultation as set out in section 4 of the MCA and the Code of Practice.

Particular care needs to be taken for anyone who may need to be restrained in any way. If it is likely that the person will resist, force may be used if it is necessary and proportionate. Providers should draft an assessment in advance setting out why restraint is necessary to protect harm to the resident, and how the restraint used will be the minimum necessary to conduct the test. The assessment should also consider whether restraint is in the person’s best interests (this is separate to whether the test itself is in the person’s best interests: conducting a test, and using restraint for the purposes of the test, are two different things).

I would urge providers to seek advice if:

1.     Restraint is needed and the purpose of the test is to prevent harm to others rather than to the person being tested: and/or

2.     The test itself would cause serious distress to the individual.

Again, blanket decisions are inadequate. Decisions should be made on a case by case basis.

Deprivation of Liberty and DoLS

Almost all residents who live in a care home who lack capacity should already be subject to DoLS. The additional restrictions put in place as a result of Covid are unlikely to require any further authorisation in the vast majority of cases if they are therapeutically necessary for the resident in question. In cases where restrictions are necessary only to protect others, the DHSC guidance recommends seeking advice from your local health protection team.

Minimising Impact of Restriction – Quality of Life Considerations

From a risk perspective, providers are unlikely to face negative consequences for following government guidance to protect residents and others if they act in a proportionate way. But that includes giving careful consideration to minimising the adverse impact of restrictions on residents. Again, this should be done on a case by case basis.  It will include maximising contact with families and friends (such as through the use of technology) and maintaining meaningful activities. Care must be taken to monitor the mental wellbeing of residents and changes acted upon quickly. Providers should also seek external advice on best practice.

Those with Capacity

We did not discuss this on the call but I have had queries about this subsequently. What do you do in respect of residents who have capacity and wish to leave the home contrary to shielding guidance or your home’s lockdown policy?

In a nutshell:

1.     Try to explain the reasons for the restrictions.

2.     Explore whether there is anything you can do to reduce the impact on them, for example by shopping on their behalf.

3.     If they still wish to leave, explain that you may need to end the placement in order to protect other residents and/or contact public health who may use powers to enforce the restrictions.

A similar approach would apply if someone with capacity refuses to be tested.

In practice, I would urge providers to seek legal advice if residents cannot be persuaded to agree restrictions (and/or testing).

This Week’s Zoom

The series will continue this Wednesday at 10.30. This week we will be discussing communication – how do you communicate:

–        with relatives who are becoming increasing concerned about your lockdown policy?

–       with stakeholders if you have any Covid cases?

–       with the press if they contact you for comment?

We will be joined by crisis communications expert Chris Gilmour from Beattie Communications who will be on hand to answer any questions.

We will also cover providers’ experiences of accessing Infection Control funding. The government grant is ring-fenced and worth around £1000 / bed but are providers able to access it and how are they overcoming red tape put in place by local authorities?

The login details remain the same. If you’d like to join for the first time, please message me or email me: jlandau@healthcarecounsel.co.uk


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.”


               “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:

Article 6
(c) Legal obligation: processing is necessary for compliance with a legal obligation to which the controller is subject; Providers have legal duties in respect of infection control and health and safety of staff, and safety of visitors to their premises.  They also have a duty of candour to residents (if they have capacity or otherwise to people lawfully acting on their behalf) to be  open and transparent in relation to care and treatment provided to service users in carrying on a regulated activity.



Article 9
(b) Employment, social security and social protection law.


This includes ensuring the health, safety and welfare of employees.

You would need an appropriate policy document in place.  A template with guidance is available here.


(h) Health or Social Care Applies if the processing is necessary for the purposes of the provision of health or social care.

You must be able to justify why processing of the specific data is ‘necessary’.  It must be a reasonable and proportionate way of achieving the purpose of providing health or social care.  

This condition applies where there is a duty of confidentiality owed to the individual concerned, as is of course the case in respect of care homes and their residents.

You don’t need to have an appropriate policy document in place.

(i)  Public interest in the area of public health


This includes responding to new threats to public health such as epidemics.

You don’t need to have an appropriate policy document in place.


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!