webinar - laingbuisson events€¦ · webinar managing covid-19 risk & liability. setting the...
TRANSCRIPT
In partnership with
WEBINAR Managing Covid-19 Risk & Liability
Setting the scene
Setting the scene
Insurance• How are insurers preparing to cope with public liability and employer liability claims
• What kinds of situations might lead to successful claims being made
• What changes in insurance policies will we see following the impact of Covid 19
Liability• What liability does Government have due to their (lack of) testing of care home residents and staff now and in the early
stages
• Will parties will take class actions, and if so against what other parties and with what chance of success
• What approach should be taken in respect of data protection insurance cover during the pandemic
• What is the liability for surveyors attempting internal inspections of a covid-free care home in support of a purchase
transaction
• How can we be protected from future PPI claims from employees
Risk• What risk sharing approaches could/should Providers & Commissioners take to mitigate/manage Covid risks
• If staff develop coronavirus in the line of duty and they have PPE and training is the employer liable
• Can we be held accountable if we have followed PHE guidelines exactly and responsively
• What have the key challenges been in keeping people safe
Key questions from attendees
Q&A and live polling using
WEBINAR: Managing COVID-19 Risk &
Liability in Health and Social Care
Sarah Livingston
General Counsel
Elysium Healthcare
Submit your questions at sli.do
Event code: randl
In partnership with
Mark Adams
CEO
Community Integrated
Care
Ruth Winterbottom
Partner
DAC Beachcroft
Gill Weatherill
Partner
DAC Beachcroft
Philip Dearn
Healthcare Practice
Leader
Marsh
In partnership with
Mark Adams
CEO
Community Integrated CareSubmit
questions at
Sli.do
#riskandliability
Community Integrated Care are one of Britain’s biggest social care charities • 6,000 colleagues• £140 million turnover (projected 2020)
Supporting 4,500 people • 450 services• 2/3 Supported Living
Helping those with Learning Disabilities, Autism, Mental Health and Down Syndrome live independently
• 1/3 Older People’s ServicesCaring for those with Dementia
Driving the Care in the Community Agenda• Founded in 1988• Partnerships with some of the biggest sporting
names• Over 60 awards in 2019 including Charity of the Year
Who are Community Integrated Care?
What did we do?
Proactive and comprehensive response• Immediately established a war room reviewing our full
organisational response and establishing robust supply chains, leading all communications, benchmarking against the sector and producing daily reports
• Sourced 92% of PPE ourselves – sitting on 2/3 weeks supply• All 450 services in lockdown at beginning of March• Established board ethics committee • Daily board highlight reporting• Immediate introduction of enhanced sick pay and a salary
increase for frontline colleagues• Moved head office and regional offices to home working from
2nd week in March• Reduced recruitment lead in time from 12-16 weeks down to
7 days• Established fully digital learning and development programme
Regular communications- Daily cascade calls throughout
organisation- Created a dedicated website and 24/7 on
call phone number for colleagues to get the latest guidance and advice
- Family webinars introduced with 5 being held each week
- Proactive media approach to highlight sector challenges
2020 – From PPI to PPE claims
Impact of COVID-19• 172 people infected with COVID-19• 4 people recovered from COVID-19• 46 have sadly passed away from COVID-19
Additional costs incurred to-date fighting COVID-19• To date: £2.5m• Monthly run rate: £1m• 70% of Local Authorities refusing to engage
Risks• Human rights issues during lockdown• Concern how COVID-19 got into 20% of our
care homes – agency staff etc?• The future of the sector with limited cash for
smaller providers• PTSD impact on colleagues• Long term financial impact
Challenges• 21 separate changes to PPE guidance since February• Onerous weekly reporting required across the system• Concerns about early stage hospital transfers without
adequate testing• No testing of colleagues or people we support until April• 95% of our people still not tested by start of May• Lack of support from primary care
Risk mitigation • Detailed paperwork around every confirmed
COVID-19 infection• Debrief and bereavement counselling to
families • Family engagement webinars• Constant engagement with insurers • Board ethics committee• Detailed log of system guidance changes
such as PPE, testing etc.
Sarah Livingston
General Counsel
Elysium HealthcareSubmit
questions at
Sli.do
#riskandliability
12
Elysium Healthcare’s Services
• Complex Care
• CAMHSo Hospitals
o Private Outpatients
• Mental Health and Wellbeingo Secure
o Rehabilitation
• Learning Disabilityo Hospitals
o Residential Care Homes
• Neurologicalo Care Homes
Ruth Winterbottom
Partner
DAC BeachcroftSubmit
questions at
Sli.do
#riskandliability
DAC BEACHCROFT
MANAGING RISK AND LIABILITY FOR COVID-19 IN THE HEALTH & SOCIAL CARE SECTOR
Potential Areas of Claim:-
o EL
– PPE, lack of, unfit, defective, insufficient training and guidance;
– Hygiene facilities, cleaning policies;
– Social distancing;
– Vicarious liability for employees working with symptoms, health surveillance;
– Reduced staffing → manual handling issues, cleaning and waste disposal, revision of care plan documents, staffing ratios, unfamiliarity, effective communication of change, fatigue → error.
20 May 2020 14
DAC BEACHCROFT
MANAGING RISK AND LIABILITY FOR COVID-19 IN THE HEALTH & SOCIAL CARE SECTOR
o PL/Medmal
– Cross infection from employees, issues around cause of death, liaising with HM Coroner;
– Issues relating to staffing and equipment, lack of and unfamiliarity with, distraction of Covid-19 issues leading to deficiency of care, failure to properly implement care plans – Compensation Act considerations.
– Issues around admission and triage procedures
20 May 2020 15
DAC BEACHCROFT
Managing Risk And Liability For Covid-19 In The Health & Social Care Sector
o Claims will be made for:-
– Infection – proof of diagnosis – causation – occupational v environmental exposure;
– Psychiatric injury and work related stress, anxiety from potential breach and increased/unfamiliar workload leading to distress. Will be judged against a background of general anxiety – a surge following the end of crisis phase?;
– Physical injury, e.g. manual handling, assault but with the aggravating factor of psychiatric wellbeing of the Claimant likely to aggravate level of damages sought.
20 May 2020 16
DAC BEACHCROFT
MANAGING RISK AND LIABILITY FOR COVID-19 IN THE HEALTH & SOCIAL CARE SECTOR
o Protective Steps
– Document – in relation to all PPE – availability, attempts to secure, training of staff, cross reference to numbers of staff and patients – record all communications and decision making rationale and cross reference to national guidance;
– Records – names and contacts for all employees and agency staff – rotas, changes in care rendered necessary due to e.g. unavailability of external visits – risk assessment and impact on care planning and increased triggers;
– Communicate and engage – provision of confidential advice and/or access to support, free flow of information with families, employees, suppliers etc. Engage employees in decision making process, part ownership of strategy leads to reduced likelihood of claim;
– Review – risk assessments, care plans - take time to go back and do overview of documents collated contemporaneously and contextualise them. Undertake heat map of areas of concern and focus on explanation of decision making;
– Regulation – HSE, local authority, assistance and involvement – RIDDOR.
20 May 2020 17
Gill Weatherill
Partner
DAC BeachcroftSubmit
questions at
Sli.do
#riskandliability
DAC BEACHCROFT
RETROSPECTIVE REGULATORY SCRUTINY
o A sense of false security?
o Benefit of the doubt for H&SC providers and professionals?
o Different regulators, different remits, different audiences
o Knock on effect - issues one step removed from Covid-19 eg:
– Ligatures
– Choking
– Falls
o Temporary deviation from good practice to unlawful - a fine line?
o Overlap with claims
20 May 2020 19
DAC BEACHCROFT
CQC
o No planned inspections
o Draft reports still being issued
o Reactive and follow-up inspections continue (whistleblowing; incident notifications etc)
o “Virtual” inspections
o Covid-19 specific issues eg PPE; can you demonstrate safe, well led services by reference to:
– relevant guidance followed
– organisational clarity
– SMT scrutiny and review
– PPE tracker systems
– Local system arrangements
20 May 2020 20
DAC BEACHCROFT
MENTAL HEALTH SERVICES
o Sector wide challenges in a complex setting
– Infection control
– Isolation and social distancing for patients who cannot/will not comply
– Testing
– PPE (eg. emergency response and CPR)
o Mental health specific challenges:
– Community residential services
– Statutory assessments; records; electronic signatures
o Legal framework challenges – not designed for a pandemic
20 May 2020 21
Philip Dearn
Healthcare Practice Lead
MarshSubmit
questions at
Sli.do
#riskandliability
MARSH
Managing Coronavirus Risk and Liability in Health and Social Care
Potential Sources of Claims
• Employees – infection transmission,
Personal Protective Equipment (PPE)
issues, stress, employment disputes.
• Service users/patients – infection
transmission, non-covid conditions.
• Investors.
Insurance Covers Likely to be
Triggered
• Employers Liability.
• Public Liability.
• Treatment Risk/Medical Malpractice.
• Employment Practices Liability/Legal
Expenses.
• Directors and Officers Liability/Charity
Trustee Liability.
MARSH
Managing Coronavirus Risk and Liability in Health and Social CareCost and Availability of Insurance Cover
24
The insurance market is shrinking for healthcare providers – six insurers have stopped writing new healthcare business since February (permanently or suspended).
Insurance pricing has been increasing for some time and this is likely to accelerate –expect increases (potentially significant).
Exclusions – many insurers are now applying pandemic or bodily injury exclusions that could affect your balance sheet protection under the following:
Public Liability cover.
Treatment Risk/Medical Malpractice.
Directors and Officers/Charity Trustee Liability.
MARSH
Trying to replicate current arrangements or taking a different approach to insurance buying.
• What are the cover essentials – does your broker take a “blank sheet of paper” approach?
• How much risk can you or are willing to retain?
• Investing in and demonstrating risk management and mitigation capabilities –
understanding what “good” looks like to insurers.
• If you have investors/backers how are you aligned to their exit strategy?
• How is your broker positioned to help and do you have a plan B?
Starting early.
Claims defensibility.
Managing Coronavirus Risk and Liability in Health and Social CareInsurance Market Challenges and Solutions
25
MARSH | EVERSHEDS SUTHERLAND
The Coronavirus Pandemic Global Crisis is Unlike any Other: No Organisation Was Fully Prepared for it, and the Outcome is Far from Clear or Uniform
26
TOP EVENT
COMPOUNDING
FACTORS FOR
BUSINESSES
RESULTS
A rapidly-evolving pandemic with no clear economic end path.
• Inflexible risk responses inadequate for rapidly evolving pandemic.
• Critical decisions made without full data availability or assessment.
• Difficulty knowing when to bring resources back on stream by country/sector/product.
• Maximising value chain resilience impossible post pandemic without deep understanding.
Supply chains
unknown and/or lack
resilience.
Rapidly evolving
policy responses
which differ by country
and industry.
Unclear data and
inconsistent
projections for
epidemic and economy.
Prior Business
Continuity planning
often unequal to the
challenge.
MARSH | EVERSHEDS SUTHERLAND
Recession
Every Organisation is Asking Urgent Questions about the Pandemic and Recovery: Without the Ability to React to New Data, Plans will Quickly become Obsolete
27
Yo
Y o
utp
ut
Time
Forecast in plan
Today’s revised forecast
Lockdown begins
Stimuli deployed
Vaccine deployed?
Stimuli wound down?
Lockdown ends?
“When do we bring suppliers/assets on stream to best win the recovery?”
Lockdown eased(distancing remains)?
“Will this really be the end of the lockdown? Or
will there be a second wave?”
“How will market conditions evolve? When
will demand normalise?”
“When should we bring our staff back? How do
we protect them and show it is safe?
“…and does today’s new intervention response
change everything we just planned?”
“Do we need to reassess our delivery roadmap?
Do we need to do something different?”
“How deep will the recession go? Which
countries and industries will fare worst?”
SOURCE: MARSH RISK CONSULTING
MARSH | EVERSHEDS SUTHERLAND
Laying the foundations for recovery
28
Engage and maintain contact with your
communities, suppliers, and staff.
Modelling COVID-19 scenarios to understand
business impacts.
Review insurance coverage and prepare
any claims.
Thank you again to our partners
Content
Media
Charity