As COVID-19 (Coronavirus) continues to spread indiscriminately, the NHS and adult social care providers face ever-increasing pressures.

In recent days, the new hospital discharge process has been published, with the aim of discharging people from hospital within hours of being assessed as fit for discharge. Assessments are to be undertaken by Trusted Assessors (see our previous article on this topic and the responsibilities of care homes). Care homes have seen embargos lifted and efforts underway to make use of vacant care home beds to facilitate hospital discharge and free up space in our hospitals as the number of people requiring treatment increases.

Regulations passed on 31 March also enacted the parts of the Coronavirus Act which suspend various duties which had been imposed on Local Authorities by the Care Act 2014, including assessment obligations. Further information can be found here.

However, this all comes at a time when care homes are facing ever-increasing staffing pressures as a result of staff self-isolating and shielding, in line with government guidance. An article in a national newspaper this week relayed a desperate plea for more staff from a care home in Liverpool where 50 of the 72 staff were absent from work. Other national provider associations have also raised concerns over staffing pressures and the need for care homes to engage new staff urgently.

As a result, the rules around DBS checks for care staff have now been relaxed to enable new staff to start work quicker and CQC has issued new interim guidance. The new measures only apply to individuals being recruited, including volunteers, as a consequence of and during the coronavirus pandemic and where the following three considerations apply:

• providers need to start staff urgently;
• waiting for a full DBS check could cause undue delay; and
• this delay leads to risks to the continuity of service, impacting the safety and wellbeing of people using that service.

All other appointments and applications for DBS checks that are not linked to coronavirus must continue to be processed according to existing DBS and CQC guidance.

Disclosure and Barring Service Checks

Individuals being recruited for roles to deliver front line care in health and social care settings in response to the coronavirus pandemic must still apply for a full enhanced DBS check and relevant barred list(s) check, where they are eligible for this.

Providers should follow the new DBS guidance on applying for a free coronavirus Fast-track Barred List Check for those who are eligible. On receipt of the application, the DBS will provide a barred list check result by the end of the next working day, and the full DBS check will follow later.

You should also consider whether you can use the following to determine suitability of a prospective employee:

• If the person you are looking to employ as part of these emergency measures has had an Enhanced with Barred List DBS check in the last three years, it is for the same workforce (such as children and/or adults), and, based on your assessment of the situation, it can be used for the role applied for; or
• they are a current subscriber to the DBS Update Service and already have a relevant check in place – in which case, you can assess the suitability of the applicant using the original certificate and a check of the Update Service.

Staff appointed under these measures, may start work based on a satisfactory fast-tracked barred list(s) check while waiting for the full DBS check. This also applies to those working with children, during this period only.

If you recruit staff with a fast-tracked barred list check, or an older DBS check from a previous employer, you are expected to demonstrate that:

• For the purpose of responding to coronavirus it is essential that the person starts work before receipt of a full DBS check;
• You have obtained evidence and satisfied yourself of the person’s fitness to carry out their role. This includes their employment history, professional registration where relevant, references from previous employers and evidence of their conduct in previous employment in health or social care with children or vulnerable adults, and the reasons why that employment ended. The expectation remains that providers satisfy themselves that the person is fit and proper for the role as defined in Regulation 19 of the Regulations. However, CQC recognises that in the current emergency, you may have to consider starting someone in their new role before all of the usual recruitment information is available and assessed (see further below).
• You have done whatever you can to obtain the above information, but where this proves impossible, you have used your own judgement to assess the suitability of the person. You should record the reasons for your decision, what efforts have been made to obtain references, and where possible, the reasons why the information could not be obtained.
• You have risk-assessed the situation and put measures in place to mitigate any risks, as far as possible, where you deem that to be helpful and practical. Some forms of mitigation you could implement may include: avoiding lone working where this is practical and possible; robust supervision arrangements; regularly checking the satisfaction of people using the service who are in contact with that member of staff; possibly removing from frontline duty anyone about whom a complaint is made who is also awaiting their certificate or other outstanding recruitment check information.

CQC has confirmed that it will take a pragmatic view on the portability of certificates for those being employed in emergency roles.

What about other recruitment checks?

Of course, for adult social care providers, the DBS check is only one of a number of criteria which have to be satisfied under Schedule 3 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”). Other requirements include references, evidence of satisfactory conduct in previous employment in health or social care, employment history etc.

CQC has now published new interim guidance, which applies specifically to individuals being recruited, including volunteers, as a consequence of and during the coronavirus pandemic and which fulfil the three criteria set out above.

It is important to note that, so far, there have been no changes to the legal requirements imposed on providers under the Regulations, irrespective of the coronavirus pandemic. CQC does not have the power to change those legal requirements but as a regulator, it will be responsible for deciding when to take enforcement action in relation to any breaches.

Let’s face it, being able to evidence full compliance with all of the Regulations can be tough at the best of times, and providers are reliant on their care staff to complete documentation correctly and fully. It is quite foreseeable that, in circumstances where services are facing significant staffing shortages as a result of this national emergency, it will be extremely difficult to comply with many of the Regulations. When it comes to urgent recruitment, the need for additional staff immediately in order to cope with the emergency, may be defeated by compliance with all of the recruitment requirements. CQC will have to take a reasonable approach to such matters.

CQC has stated that it understands the challenges faced by the country and has previously stated: “We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit.”

CQC has now commented specifically on the need for urgent recruitment. Whilst it continues to encourage providers to continue to carry out the recruitment checks as they ordinarily would, CQC states that it understands that during this time, providers “may have to assess their situation and consider starting a new member of staff or volunteer based on less evidence than they normally would”. For example, CQC suggests that if a single reference or telephone conversation with a previous employer gives you enough assurance to start that person in some capacity, it will “trust providers to use their professional judgement and to be pragmatic.”

However, while CQC acknowledges that people may be started in their roles as an emergency, without all of the usual checks and balances which would be in place in ordinary circumstances, it makes it clear that providers remain responsible for using their judgement and taking necessary action if concerns about a new member of staff, or volunteer, do arise.

CQC further states: “As long as providers take reasonable steps to ensure new staff are adequately supported and sufficiently supervised so that people are safe, we will not take a punitive approach. Providers should record the decisions they have made, any risks identified along with the mitigations they will put in place”.

This is welcome news – but CQC then goes on to say that its existing guidance on supervision arrangements remains in place and any applicants for work relating to a regulated activity will require the skills and experience for the role they will be expected to fulfil. It also states that you will still need to make decisions about how staff and volunteers are deployed to carry out duties which are appropriate to their level of knowledge, skills, experience and competency, and make suitable arrangements, including a safe level of induction and support which reflects local circumstances and the role.

What if I need staff to carry out different roles?

You may find that staffing pressures mean that you need existing staff to carry out different roles, for example asking housekeeping staff or administrative staff to help with care tasks. As mentioned above, you will need to consider the skills, training and experience of those individuals and consider how you will supervise them.

Where existing staff are asked to take on different or additional duties, you should consider whether a new DBS check is necessary, if the previous check was not an enhanced check or related to the same type of role and tasks. (The DBS online eligibility tool can help you decide what levels of checks are required for different roles).

What else should I do if I am not able to complete full recruitment checks?

CQC suggests that you have a system to easily identify which staff have been recruited during this coronavirus pandemic. For example, CQC suggests perhaps adding a code such as ‘coronavirus’ to their staff records to ensure that they can be reviewed and full recruitment procedures should be followed later for all those staff who have received a fast-track barred list check.

CQC states that providers are expected to prioritise the safety and wellbeing of service users and to act appropriately on any information you do receive, however delayed that information might be.

Registered Manager and Registered Provider Applications

CQC does not currently intend to change its process for those applying to CQC to become a Registered Manager or Registered Provider and applicants will still be expected to undertake the full enhanced DBS checks. However, CQC is in contact with DBS and will keep this under review.

CQC has suggested that there are some situations where it might need to process a Registered Manager application urgently, in which case it will expect a barred list check and it would consider a certificate for an enhanced full DBS check carried out during the previous three years for a similar role working with children/adults. However, in these circumstances, CQC states that it would add a condition to the registration requiring that a countersigned DBS check is provided to CQC within a specified period (which will be dependent upon the status of coronavirus and any restrictions still in place at the time). It is not clear when CQC may take this approach.

Safeguarding

Both CQC interim guidance and the recent government guidance on the Care Act easement provisions are clear that safeguarding obligations continue during the period of the coronavirus pandemic.

Summary

In summary, continue to do the best you can to comply with the Regulations. These are truly unprecedented times and CQC acknowledges that there is a need to balance compliance with full recruitment requirements, with the risks to those in your care.

It is important that you continue to undertake whatever checks you are still able to perform and that you document the steps you have taken and your rationale for not taking any of the other steps required by the Regulations. We are pleased to note that CQC understands that providers will not always be able to follow safe recruitment practices to the letter, but this guidance from CQC is still fairly vague and it remains to be seen how CQC may interpret any shortfalls in compliance in due course. Clearly recorded decisions, based on assessed risks, will make it far easier to demonstrate to CQC that you were justified in any breaches of the Regulations.

Only time will tell what approach CQC may take to individual cases in the future but if you find yourself in a situation where CQC or others are raising concerns over your actions or threatening any enforcement action then you should seek legal advice at the earliest opportunity.

Our specialist CQC lawyers are here to support you through these challenges. Contact us to discuss how we can help you. Email online.enquiries@la-law.com or call 01202 786187.