The UK Government's guidance on combating coronavirus in care homes is inconsistent with WHO standards

Submission to the UK Parliament's Joint Committee on Human Rights 

Inquiry into the human rights implications of the Government’s response to COVID-19 

Dr Oliver Lewis (Barrister at Doughty Street Chambers, London, and Professor of Law and Social Justice at the School of Law, University of Leeds) and Dr Andrew Kirby (Associate Professor in Microbiology, School of Medicine, University of Leeds, UK) 

Introduction 

This paper contributes a combined human rights perspective and an infection prevention and control perspective to the COVID-19 situation in long-term care homes in the UK.

The methodology is an analysis of the UK government’s guidance to long-term care facilities against international human rights standards and World Health Organization (“WHO”) guidance.

Long-term care facilities include care homes for older people, care homes and other residential settings for younger people with learning disabilities. They include people who have capacity to decide on their residence and care as well as those who do not. They include people detained pursuant to the Mental Health Act 1983 in mental health units, including 2,300 people with autism and learning disabilities in ‘assessment and treatment units’, which the government has committed to moving out into community housing and care.[1] It includes people who are deprived of their liberty pursuant to Schedule A1 of the Mental Capacity Act 2005: the ‘Deprivation of Liberty Safeguards’ framework. 

Questions the JCHR should ask the Government 

The outcome of this paper is a series of questions for the JCHR to use in its inquiry into the government’s response:

1. Why does UK guidance not ensure there is an IPC [infection prevention and control] focal point at the facility to lead and coordinate IPC activities?

2. Why does UK guidance not recommend provision of information available in a format and/or language understandable by a resident?

3. Why does the UK guidance for care homes not specify in that document what exactly care home staff should do in relation to physical distancing, and what they should ask/require of residents?

4. Why does UK guidance not recommend that a resident should be isolated until they have two negative laboratory tests for COIVID-19 taken at least 24 hours apart after the resident’s symptoms have resolved?

5. What scientific evidence does the UK government rely on to justify its divergence from WHO guidance which mandates the use of eye protection (goggles or face shield) when staff are working within 2 metres of a resident?

6. Why does the UK government’s guidance for care homes not specify the PPE to be worn by cleaners in care homes?

7. What is the evidence that disinfectant of 1000ppm chlorine is sufficient to kill COVID-19 on surfaces in care homes in the UK?

8. Why does the UK government not specify in its guidance to care homes that laundry must be washed in a washing machine with water at 60−90°C with laundry detergent, per the WHO guidelines?

9. Why does the UK government’s guidance on care homes (i) not acknowledge the risk of anxiety, anger and stress on residents and (ii) not place a duty on care homes to provide practical and emotional support and to work with residents’ families and health care providers?

International human rights standards for long-term care facilities 

Under the European Convention on Human Rights, the UK government has positive duties to take measures:

• to protect the life of residents and staff in care homes, including preventing avoidable deaths: Article 2 ECHR
• to prevent inhuman and degrading treatment: Article 3 ECHR
• to prevent unlawful deprivations of liberty: Article 5 ECHR
• to avoid discrimination on the basis of disability or age: Article 14 ECHR.

On 8 April 2020, the Secretary General of the Council of Europe published a report on human rights and coronavirus pandemic.[2] The report makes the point that Articles 2 and 3 ECHR “may be invoked in respect of severely ill patients, people with disabilities or elderly persons”. It goes on to state that “[t]heir exposure to the disease and the extreme level of suffering may be found incompatible with the state’s positive obligations to protect life and prevent ill-treatment.” 

The European Court of Human Rights has held that a delay in diagnosis, as well as a failure to provide medical treatment, to a person in detention are capable of breaching Article 3 ECHR. [3] Inhuman and degrading treatment contrary to Article 3 ECHR does not require intent.[4] The European Court of Human Rights has held that, “feeling of inferiority and powerlessness which is typical of persons who suffer from a mental disorder calls for increased vigilance in reviewing whether the Convention has been complied with”.[5] The state must ensure that people who are deprived of their liberty, including in social care facilities, are provided with requisite medical assistance so as to secure a person’s health and well-being.[6] Conditions of detention of a person who is ill must guarantee the protection of heath.[7] The states has a positive obligation to prevent the spread of contagious disease. 

The UK ratified the UN Convention on the Rights of Persons with Disabilities (“CRPD”) in 2009. Despite the treaty not being directly enforceable in UK courts,[8] it can be used as an aid in interpreting domestic law and ECHR provisions.[9] The UK has duties in international law to implement its provisions, including:   

• Accessibility duty: Article 9
• Right to life: Article 10
• Situations of risk and humanitarian emergencies: Article 11
• Freedom from torture, inhuman and degrading treatment: Article 15, including a duty to “take all effective legislative, administrative, judicial and other measures” to prevent such ill-treatment
• Freedom from exploitation, violence and abuse: Article 16, including independent monitoring of all facilities and programmes designed to serve people with disabilities (Article 16(3)) 
• Right to health: Article 25, including provision of “same range, quality and standard” of healthcare as others: Article 25(a), and prevention of “discriminatory denial of health care or health services or food and fluids on the basis of disability”: Article 25(f).

On 20 March 2020, the Council of Europe’s Committee for the Prevention of Torture (“CPT”) published its “Statement of principles relating to the treatment of persons deprived of their liberty”.[10] The CPT is the European body that monitors places of detention which includes psychiatric hospitals and care homes. It sets standards in order to prevent torture and other forms of ill-treatment. In its Statement of Principles, the CPT states, “WHO guidelines on fighting the pandemic as well as national health and clinical guidelines consistent with international standards must be respected and implemented fully in all places of deprivation of liberty.”

When lives are at stake, the UK is likely to be in breach of its international human rights obligations if its guidance is inconsistent with WHO guidance such that it undermines the aim of preventing and controlling infection.

WHO guidance for long-term care facilities 

On 21 March, the WHO published “interim guidance” for long-term care facilities.[11] It has 3 aims: to prevent the virus from entering a facility, and once in a facility to prevent spread within that facility and prevent spread outside the facility.  

The document should be read alongside the WHO’s publication, “Disability considerations during the COVID-19 outbreak”, published on 26 March 2020.[12] 

On 25 March, Michelle Bachelet, the UN High Commissioner for Human Rights said that, “Covid-19 has begun to strike prisons, jails and immigration detention centres, as well as residential care homes and psychiatric hospitals, and risks rampaging through such institutions’ extremely vulnerable populations”.[13] She called on governments to “address the situation of detained people in their crisis planning to protect detainees, staff, visitors and of course wider society". The consequences of neglecting people in these facilities, she observed, are “potentially catastrophic”. 

UK guidelines for long-term care facilities 

On 2 April, the UK Government published guidance on “Admission and Care of Residents during COVID-19 Incident in a Care Home”.[14] It addresses the admission to care homes of people being discharged from hospitals, and admissions to care homes from home [pages 4 and 5]. 

On 17 April 2020 the UK Government issued supplementary guidance on the operation of care homes.[15]

Comparison between WHO and UK guidance 

This table summarises the areas where the UK guidance is inconsistent with the WHO guidance. Each of the areas is then analysed in detail.  

Coordination 

The WHO guidance specifies that long-term care facilities “should ensure there is an IPC [infection prevention and control] focal point at the facility to lead and coordinate IPC activities, ideally supported by an IPC team with delegated responsibilities and advised by a multidisciplinary committee.”

The focal point’s role is to provide training on Covid-19 to all employees (including “hand hygiene and respiratory etiquette”, standard precautions and Covid-19 transmission-based precautions (the WHO provides a link to online training videos)

• Regularly audit IPC practices and provide feedback to employees
• Increase emphasise on hand hygiene and respiratory etiquette including
• ensuring adequate supplies of alcohol-based hand rub (“ABHR”), posting reminders, posters, flyers around the facility targeting employees, residents and visitors to regularly use ABHR or wash hands
• encouraging hand washing with soap and water for a minimum of 40 seconds or with ABHR for a minimum of 20 seconds
• Require employees to perform hand hygiene frequently, including before and after touching residents etc.
• Encourage and support residents and visitors to perform hand hygiene frequently
• Ensure adequate supply of tissues and post reminders targeting employees, residents and visitors to sneeze or cough into the elbow or use a tissue and dispose of it immediately in a bin with a lid

The UK guidance does not require or encourage long-term care facilities to appoint a focal point.

The UK guidance does not specify any duration of handwashing. Elsewhere, UK government guidance suggests handwashing with soap and water for 20 seconds, which is half of the WHO-recommended minimum 40 seconds.

Suggested question: Why does UK guidance not ensure there is an IPC [infection prevention and control] focal point at the facility to lead and coordinate IPC activities?

Provision of information 

 The WHO guidance specifies that care homes should “[r]egularly provide updated information about COVID-19 to residents, employees, and staff.”

 The UK guidance instructs staff to display signs to inform about an outbreak, and provide “warn and inform letters to residents, visitors and staff if there is a suspected case of COVID-19 in the home.” [page 21]. There is no mention of providing information in a language or format that the resident can understand.

Suggested question: Why does UK guidance not recommend provision of information available in a format and/or language understandable by a resident?

Physical distancing

 The WHO guidance specifies the following actions to be taken, including:

• For group activities ensure physical distancing, if not feasible cancel group activities.
• Stagger meals to ensure physical distance maintained between residents or if not feasible, close dining halls and serve residents individual meals in their rooms.
• Enforce a minimum of 1 metre distance between residents.
• Require residents and employees to avoid touching (e.g., shaking hands, hugging, or kissing).

 The UK guidance contains the following recommendations: 

• No guidance on group activities
• No guidance on staggering meals or the provision of meals in bedrooms
• No guidance on minimum distance between residents. With regard to “persons at higher risk” [page 9] including people over 70 years old, as well as those under that age with an underlying heath condition – the guidance is to follow “social distancing measures”. There is no definition in this document, but a hyperlink is provided to “Guidance on social distancing for everyone in the UK” (updated 30 March 2020).[16] This guidance carries the following wording in the first paragraph: “It is intended for use in situations where people are living in their own homes, with or without additional support from friends, family and carers. If you live in a residential care setting guidance is available.” The hyperlinked words link to the document which is in fact not relevant for residential care, but “care and support delivered within supported living environments (people in the own homes) including for people with mental health conditions, learning disabilities or autistic adults”.[17] 
• No guidance on requiring residents and employees to avoid touching

Suggested questions: Why does the UK guidance for care homes not specify in that document what exactly care home staff should do in relation to physical distancing, and what they should ask/require of residents?

Isolating residents with suspected or confirmed Covid-19 infection 

The WHO recommends that residents with suspected or confirmed should be isolated “until they have two negative laboratory tests for COIVID-19 taken at least 24 hours apart after the resident’s symptoms have resolved. Where testing is not possible, WHO recommends that confirmed patients remain isolated for an additional two weeks after symptoms resolve.” [page 4].

The UK guidance on the other hand only requires isolation for 14 days from the onset of symptoms [page 11]. There is no guidance as to when the resident can be released from isolation.

Provision of data is essential in enabling the authorities to understand how far the disease has spread and to take action at the local level. The failure to carry out testing adds pressure on social care workforce because staff may be self-isolating and not working when they do not have coronavirus.

Suggested question: Why does UK guidance not recommend that a resident should be isolated until they have two negative laboratory tests for COIVID-19 taken at least 24 hours apart after the resident’s symptoms have resolved?

PPE for care staff

The WHO guidance specifies that, “[i]f a resident is suspected to have, or is diagnosed with, COVID-19, the following steps should be taken”. The guidance then lists a number of actions including: “Place a medical mask on the resident and on others staying in the room” [page 3].

The UK guidance recommends masks only “[w]hen transferring symptomatic residents between rooms” [page 11].

The WHO guidance states that, “Protective Personal Equipment (PPE) should be used when within 2 metres of a resident with possible or confirmed COVID-19.” In such a case, “contact precaution and droplet precautions should be practiced.” [page 3] which means using PPE including “eye protection (goggles or face shield)”. 

The original UK guidance for care homes does not specify what level of PPE should be used. For information on masks, gowns and the like, the guidance hyperlinks to another document on PPE which states that the “[n]eed for eye protection is subject to risk assessment”.[18] Section 7 on “risk assessment” delegates the decision on eye protection to the individual staff member:

 “Risk assessment on the use of eye protection, for example, should consider the likelihood of encountering a case(s) and the risk of droplet transmission (risk of droplet transmission to eye mucosa such as with a coughing patient) during the care episode. Sessional use of FRSMs [fluid resistant (Type IIR) surgical facemasks] and eye protection is indicated if there is perceived to be close or prolonged interaction with patients in a context of sustained community COVID-19 transmission.

Ultimately, where staff consider there is a risk to themselves or the individuals they are caring for they should wear a fluid repellent surgical mask with or without eye protection, as determined by the individual staff member for the episode of care or single session.” [emphasis in the original]

Elsewhere in the UK guidance for care homes there is a hyperlink to a table entitled “Recommended PPE for primary, outpatient, community and social care by setting, NHS and independent sector”.[19] In the guidance for care homes, the table does not have a green tick for eye/face protection. There is either a green tick or a red cross in all the other boxes. Instead, it says “risk assess sessional use” which takes the reader to 2 footnotes. The risk assessment footnote states, “Risk assessed use refers to utilising PPE when there is an anticipated/likely risk of contamination with splashes, droplets or blood or body fluids.” This is different from the main document on PPE. This document was unclear as to how a care home worker is supposed to anticipate a splash, what a splash referred to or what droplets of body fluids was. It was unclear whether a splash or body fluids includes a cough, or indeed a breath. 

The UK produced an additional guidance document on 17 March. In relation to eye protection is not mandatory when performing a task that requires the staff member to touch the resident or be within 2 meters of that resident who is coughing:

• “Eye protection may be needed for certain tasks where there is risk of contamination to the eyes from respiratory droplets or from splashing of secretions (e.g. when undertaking prolonged tasks near residents who are repeatedly coughing or may be vomiting).
• Use of eye protection should be discussed with your manager and be informed by a risk assessment in your care home.
• Eye protection can be used continuously while providing care until you take a break from duties”

The UK guidance fails to comply with the WHO guidance as follows  

• The WHO does not recommend delegating the decision to wear eye protection to a carer who may be untrained to take such decisions.
• The WHO guidance is not dependent on whether there is to be a “prolonged interaction” with the person.
• The UK guidance fails to specify what “prolonged” means. It ignores the scientific evidence that Covid-19 can be transmitted from one person to another in a matter of a few seconds, and that the interaction need not be prolonged for more than a second or two, enough time for a droplet from a cough to land in the mucosa of the carer’s eye.
• The WHO avoids an individual risk assessment. Its guidance is that goggles or a face shield are to be worn when providing all routine care.

Suggested question: What scientific evidence does the UK government rely on to justify its divergence from WHO guidance which mandates the use of eye protection (goggles or face shield) when staff are working within 2 metres of a resident? 

PPE for cleaners 

As for PPE for cleaning staff, the WHO guidance specifies that “Cleaners and those handling soiled bedding, laundry, etc., should wear PPE, including mask, gloves, long sleeve gowns, goggles or face shield, and boots or closed toe shoes. They should perform hand hygiene before putting on and after removing PPE.” [page 3]

The UK guidance states that cleaner “must be trained and understand how to use PPE appropriate to their role to limit the spread of COVID-19”. It does not specify what PPE cleaners should wear. The “Recommended PPE for primary, outpatient, community and social care by setting, NHS and independent sector” document does not contain guidance as to PPE for cleaners.[20] 

Suggested question: Why does the UK government’s guidance for care homes not specify the PPE to be worn by cleaners in care homes? 

Disinfection 

The WHO specifies that if commercially prepared hospital-grade disinfectants are not available, care homes “may use a diluted concentration of bleach to disinfect the environment. The minimum concentration of chlorine should be 5000 ppm or 0.5% (equivalent to a 1:9 dilution of 5% concentrated liquid bleach).” A footnote refers the reader to another WHO publication on water, sanitation, hygiene and waste management for COVID-19.[21]

The UK guidance allows a choice of either (a) a combined detergent disinfectant solution at a dilution of 1000 parts per million available chlorine or (b) a neutral purpose detergent followed by disinfection (1000 parts per million available chlorine). This is one fifth the strength of chlorine than that recommended by the WHO. There is no explanation in the guidance for the difference.

Suggested question: What is the evidence that disinfectant of 1000ppm chlorine is sufficient to kill COVID-19 on surfaces in care homes in the UK? 

Laundry

The WHO recommends “[m]achine washing with warm water at 60−90°C (140−194°F) with laundry detergent” [page 4]. This is irrespective of whether there have been confirmed or suspected cases of Covid-19.

Under the heading “Safe management of linen”, the UK guidance refers the reader to another document, “Health Technical Memorandum 01-04: Decontamination of linen for health and social care”. This document outlines two process for linen: standard and enhanced [chapter 6]. The standard process does not specify a minimum temperature for laundering linen. The enhanced process should be used when there are certain “triggers”, and examples are given that “include: unexplained diarrhoea and vomiting; confirmed infection; unexplained rashes; confirmed cases of scabies/lice; unexplained fever.” It is only in these cases that a wash with minimum 60°C is recommended.

The problem with this guidance is that it is not contained in the core care homes guidance, making it more difficult for care home staff to find clear information about what they should do. The second problem is that it is not clear whether for a care home without any suspected or confirmed coronavirus cases the enhanced process is triggered. It is inconsistent with the WHO guidance which has the stated aim of preventing Covid-19 infection from entering care homes.

Suggested question: Why does the UK government not specify in its guidance to care homes that laundry must be washed in a washing machine with water at 60−90°C with laundry detergent, per the WHO guidelines?

Mental health and wellbeing support 

The WHO guidance recognises that “[o]lder people, especially in isolation and those with cognitive decline, dementia, and those who are highly care-dependent, may become more anxious, angry, stressed, agitated, and withdrawn during the outbreak or while in isolation.”. To that end, the WHO recommends that care home staff provide “practical and emotional support” by way of working with “informal networks (families) and health care providers”.

The UK contains no such acknowledgment or guidance.

Suggested question: Why does the UK government’s guidance on care homes (i) not acknowledge the risk of anxiety, anger and stress on residents and (ii) not place a duty on care homes to provide practical and emotional support and to work with residents’ families and health care providers?

References

[1] Department of Health and Social Care, ”Transforming care”, https://www.england.nhs.uk/learning-disabilities/care/.

[2] Secretary General of the Council of Europe, “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis A toolkit for member states”, 8 April 2020, https://www.coe.int/en/web/portal/-/coronavirus-guidance-to-governments-on-respecting-human-rights-democracy-and-the-rule-of-law.

[3] Vasykov v Russia [2011] ECHR 2974/05, para. 75: “The Court believes that, for lack of adequate medical treatment, the applicant was exposed to prolonged mental and physical suffering diminishing his human dignity. The authorities' failure to provide the applicant with the requisite medical care amounted to inhuman and degrading treatment within the meaning of art 3 of the Convention.”

[4] Peers v Greece [2001] 10 BHRC 364, para. 74.  

[5] Dybeku v Albania [2007] ECHR 41153/06, para. 47.

[6] Stanev v Bulgaria [2012] ECHR 32238/04, para. 204.

[7] Ghavtadze v Georgia, 23204/07, judgment 3 March 2009, para. 77.

[8] R (NM) v Islington LBC [2012] PTSR 1582 at para. 98; R (MA) v Secretary of State for Work and Pensions [2013] PTSR 1521 (CA), para. 80.

[9] Burnip v Birmingham CC [2013] PTSR 117 (CA) at para. 22. See also R (on the application of Leighton) v Secretary of State for Justice [2020] EWHC 336 (Admin), paras. 216-221. 

[10] European Committee for the Prevention of Torture, Statement of principles relating to the treatment of persons deprived of their liberty”, 20 March 2020, https://www.coe.int/en/web/cpt/-/covid-19-council-of-europe-anti-torture-committee-issues-statement-of-principles-relating-to-the-treatment-of-persons-deprived-of-their-liberty-.

[11] WHO, “Infection Prevention and Control guidance for Long-Term Care Facilities in the context of COVID-19”, 21 March 2020, https://apps.who.int/iris/handle/10665/331508.

[12] WHO, “Disability considerations during the COVID-19 outbreak”, 26 March 2020, https://www.who.int/who-documents-detail/disability-considerations-during-the-covid-19-outbreak.

[13] Michelle Bachelet, “Urgent action needed to prevent COVID-19 rampaging through places of detention”, 25 March 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25745&LangID=E.

[14] UK Government, “Admission and Care of Residents during COVID-19 Incident in a Care Home”, 2 April 2020, https://www.gov.uk/government/publications/coronavirus-covid-19-admission-and-care-of-people-in-care-homes.

[15] UK Government, “How to work safely in care homes”, 17 April 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880094/PHE_11651_COVID-19_How_to_work_safely_in_care_homes.pdf.

[16] UK Government, “Guidance on social distancing for everyone in the UK”, updated 30 March 2020, https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults.

[17] UK Government, “COVID-19: guidance for supported living and home care”, updated 6 April 2020, https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance.

[18] UK Government, “COVID-19 personal protective equipment (PPE)”, updated 17 April 2020, https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-personal-protective-equipment-ppe#section-7, see para. 8.11.

[19] UK Government, “Recommended PPE for primary, outpatient, community and social care by setting, NHS and independent sector”, V1 8 April 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878750/T2_poster_Recommended_PPE_for_primary__outpatient__community_and_social_care_by_setting.pdf.

[20] UK Government, “Recommended PPE for primary, outpatient, community and social care by setting, NHS and independent sector”, V1 8 April 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878750/T2_poster_Recommended_PPE_for_primary__outpatient__community_and_social_care_by_setting.pdf.

[21] WHO, “Water, sanitation, hygiene and waste management for COVID-19”, 19 March 2020, https://www.who.int/publications-detail/water-sanitation-hygiene-and-waste-management-for-covid-19