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Page 1: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

In partnership with

WEBINAR Managing Covid-19 Risk & Liability

Page 2: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Setting the scene

Page 3: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Setting the scene

Page 4: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 5: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Q&A and live polling using

Page 6: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 7: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Mark Adams

CEO

Community Integrated CareSubmit

questions at

Sli.do

#riskandliability

Page 8: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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?

Page 9: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 10: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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.

Page 11: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Sarah Livingston

General Counsel

Elysium HealthcareSubmit

questions at

Sli.do

#riskandliability

Page 12: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 13: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Ruth Winterbottom

Partner

DAC BeachcroftSubmit

questions at

Sli.do

#riskandliability

Page 14: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 15: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 16: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 17: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 18: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Gill Weatherill

Partner

DAC BeachcroftSubmit

questions at

Sli.do

#riskandliability

Page 19: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 20: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 21: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 22: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Philip Dearn

Healthcare Practice Lead

MarshSubmit

questions at

Sli.do

#riskandliability

Page 23: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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.

Page 24: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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.

Page 25: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 26: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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.

Page 27: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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

Page 28: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

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.

Page 29: WEBINAR - LaingBuisson Events€¦ · WEBINAR Managing Covid-19 Risk & Liability. Setting the scene. Setting the scene. Insurance ... –Communicate and engage –provision of confidential

Thank you again to our partners

Content

Media

Charity