As reported in our last blog, the Chief Coroner for England and Wales has recently provided updated guidance on inquests, commenting that in the contents of COVID-19, inquests are not a suitable forum to examine potential systemic failures in the provisional of personal protective equipment (PPE) to employees.
The issue of PPE for social care employees has been widely discussed in the media in the last few days, and we have seen many reports discussing the lack of PPE, as well as volunteer led initiatives to provide PPE, and other industries repurposing manufacturing to provide gowns/aprons/visors. But what should social care providers be mindful of in respect of PPE in the current climate?
The starting point for any employer is existing legislation, in particular the Personal Protective Equipment at Work Regulations 1992. This imposes various duties upon employers with regards to PPE such as providing suitable PPE, risk assessing the tasks and requirements for PPE, providing information, instruction and training on the use of PPE. It’s easy to see that in the context of the COVID-19 pandemic in the social care sphere, these issues could be overlooked in the rush to ensure a consistent provision is provided for service users.
As well as ensuring PPE is suitable for employees, it is also important to ensure it reduces as far as possible the transmission of the virus to vulnerable service users. And whilst it might be tempting to for example accept a generous donation of PPE from a voluntary group, social care providers should carefully consider whether that PPE has been produced with the same level of care as its normal PPE providers might produce.
Information and official guidance regarding COVID-19 changes regularly at present and providers would do well to keep abreast of this, and ensure they have a dynamic risk assessment process that keeps abreast of new guidance as it comes to light. If a claim were to be made by an employee or service user in relation to the contraction of COVID-19 and insufficient PPE, then we would hope the courts would be sympathetic to the difficult position social care providers find themselves in.
A significant part of the defence of a claim would be to provide evidence that employers have taken all reasonable steps with regard to PPE.
Jennifer Johnston, Associate, BLM