The last 16 months have been extremely challenging, and at times traumatic, for care homes. Owners, Managers and staff have seen residents become ill, in many cases numerous deaths, and have also suffered illness and bereavement themselves. Our healthcare lawyers have the utmost respect for care home staff, most of whom have gone above and beyond to support vulnerable residents during this crisis period.

Whilst many of us clapped in recognition of both NHS and social care workers, others raised concerns. Lockdown resulted in a number of difficulties and concerns raised by family members who were unable to see their loved ones, who were shocked by their deterioration when they did eventually see them, and who were understandably concerned over outbreaks within homes and, perhaps naturally, asked questions over how and whether their loved one was being sufficiently protected from the virus.

In June 2020, a Freedom of Information Act request had been made to CQC, asking for details of the number of deaths which had occurred in each individual care home. CQC refused to provide that data. A complaint was then made to the Information Commissioners Office (ICO) and on 21 May 2021, the ICO determined that CQC had been reasonable to refuse to release that data on the basis that there was strong public interest against disclosure.  In particular, the ICO confirmed that CQC had been reasonable to refuse disclosure for the following reasons:

• Risk to life – CQC was concerned that the public would see the data as useful and meaningful in determining risk within a care home and would respond to that data by moving loved ones to alternative homes, which in turn would expose the resident and others to significant risks. CQC was quick to point out that the number of deaths could be affected by a number of factors, not just the quality of care or infection control within a home. It was concerned that, even with caveats, the public would place too much emphasis and reliance on this data.
• Impact on the mental health of care home staff – CQC recognised the risk posed to care homes and staff by how the media and public may react to the data. The ICO judgement states:

“CQC said that there is independent evidence of care workers feeling blamed or guilty for the deaths of those they care for and of the impact of the pandemic on care home staff. Studies have shown a deterioration in the mental health of social care workers during the pandemic. The World Health Organisation (WHO) have also reported upon the risk of care workers being stigmatised and subjected to attacks, and such events have been reported in the UK. Publication of the number of reported COVID-19 deaths in each location is likely to draw significant public attention to those services with the highest numbers of such deaths. It is highly likely that providers and locations will be singled out in national, local and social media with care staff feeling personally blamed for deaths.”

As specialist care home solicitors representing care homes nationally, we have supported our clients throughout this difficult period and seen the effects of the pandemic on care homes, owners and staff. In our experience, this is a genuine concern held by care homes and it was a welcome relief that the data was not published.

However, the ICO also stated that, whilst it was right to refuse the request at the height of the pandemic, as the vaccination programme rolls out and we move out of lockdown, the balance of considerations changes and becomes more in favour of publication. CQC has since announced that it will publish COVID-19 death notification data for the period 10 April 2020 and 31 March 2021 subject to approval at their Public Board meeting on 21 July 2021. The intention is that the data will be published on the CQC website later the same day, although it is possible that if there is an issue with data quality they will delay publication. Given that many still hold the concerns which first led CQC to refuse to provide the data, care home providers may find it helpful to consider the impact of the publication and what can be done, in advance of the publication.

CQC has indicated the data to be published will be the number of deaths which have been reported to CQC with a cause of suspected or confirmed COVID-19, regardless of whether those deaths occurred in the care home or in hospital. CQC will be contacting each care home to share the relevant data it holds for that home, between 5 and 9 July 2021. This information will be delivered by email at the individual care home level and publication will also include local authority area data.

The data CQC will share with each location will be presented quarterly by date of notification received by CQC and not the date of death. Whilst CQC will share the total death notification received in the same period, CQC will not include this in the publication on 21 July 2021.

Although CQC has said it does not intend to validate this data, providers may wish to review their submissions and check they accurately reflect the notifications which have been made by that location.

As 10 April 2020 was a date that care home testing was not routinely available, many providers would have declared deaths as suspected COVID-19 if they occurred within a timeframe similar to a confirmed case. Similarly, many care home providers submitted the CQC notification of death ‘without delay’ and prior to a cause of death being declared, meaning the two may not necessarily tally. This will inevitably lead to questions being raised about the value of comparing the data between locations as not all locations behaved in the same way or had access to the same amount of testing. In addition, deaths in another setting will also be included if the care home submitted a notification. It is imperative that care homes consider what their particular set of data will represent.

There are many unanswered questions including: what about deaths before 10 April 2020, what guidance there was to homes completing these notifications and what amounted to a suspicion of COVID-19 and will staff deaths be included? There will be new questions from current and former families and staff, many of which will be difficult to answer.

CQC has encouraged care homes to continue having important “..conversations with the families of people who died and those in your care, in advance of publication.” Providers are encouraged to consider how they are communicating with these interested parties and to prepare a short statement in advance to ensure consistent messaging across their setting. Given the concerns over the potential impact of staff, consideration should be given to communication with and supporting staff also.

It is likely that the local press will be in contact with care homes and provider organisations and we would advise giving some thought to how these interactions will be managed in advance. It may be beneficial to have a statement prepared and ready if it is needed and we would also recommend that care homes consider, in advance, their strategy to promote positive PR/media coverage after the event, to seek to limit any potential damage as far as possible.

If you would like assistance from one of our experienced care home solicitors to assist in drafting a letter to families, staff, service users or a press statement or to discuss how publication may affect your organisation, clarify your understanding of what is required or any other matter please contact our specialist CQC lawyers by email: laura.guntrip@la-law.com or telephone: 01202 786187.