Covid-19 deaths of care home residents: what does justice look like?

On Monday 21 September 2020, Doughty Street Chambers hosted a webinar on “Covid-19 deaths of care home residents: what does justice look like?” The video recording is available here.

The webinar was intended for residents of care homes, their families and friends, as well as care home staff and interested others and over 100 people participated.  

The panellists were Dr Subhajit Basu (Associate Professor at the School of Law, University of Leeds), Veronica Grey (Deputy Director of Hourglass, a charity working to end abuse of older people), Alexis Quinn (author of “Unbroken”, campaigner and human rights activist) as well as my Doughty Street Chambers colleagues Aswini Weereratne QC, Sophy Miles and Amos Waldman. I chaired the event.

The Office for National Statistics has recently reported that 59% of all deaths involving Covid-19 from 2 March to 14 July 2020 were of disabled people. The King’s Fund estimates that between early March and 7 August, there were about 26,500 excess deaths in care homes. “Excess” means the number compared with the 2015–19 average for the same period. And now, infections are on the rise again.

How have things gone so catastrophically wrong? Panellists offered views which included the ongoing reliance of congregate/institutional settings, the lack of preparation by an already under-resourced social care sector, the government’s decision to discharge people from the NHS beds into care homes without requiring a negative test, unavailability of PPE, a failure to provide testing until recently, a failure by government to publish timely and clear guidance, a failure by government to consider the successful approaches of other countries, and a failure to ensure access to health services to care home residents. The panel discussed the experiences of older people with dementia, residents with learning disabilities and/or autism and the impact of the virus on black, Asian and minority ethnic residents and staff.

My Doughty Street colleagues explained the differences between a statutory inquiry, an inquest and a civil claim, and panellists discussed the barriers that bereaved families have in accessing information about the circumstances in which their loved ones died.

The most moving intervention came from my friend and colleague Amos Waldman whose grandmother very sadly died from Covid-19 in a care home in April. The beautiful picture below shows his grandmother congratulating Amos at his wedding in June 2019. 

Amos paid tribute to his grandmother, a “kind, intelligent, Mensa-certified, loving and charismatic” lady who was “incredibly talented in music and dance and a prolific knitter”. Amos’s grandmother moved into a care home in early March. After two weeks the care home went into lockdown and no visitors were allowed. The family were told she was unwell, initially that she had a water infection, then they were told that she had a chest infection and told that she did not have Covid-19. Amos’s grandmother was in pain and was denied effective analgesia until she was given morphine the day before she died. Her death certificate records pneumonia and Covid-19. The family later heard that two members of staff at the care home had tested positive as had other residents.

The experience of Amos’s family chimed with many attendees of the webinar, who typed their questions and stories into ‘chat’ function in Zoom. Several attendees had lost relatives in care homes, and they variously explained how care homes had lied to them and sought to cover up failings. Many people explained the barriers that they continue to face - by care homes, local authorities and Coroners – to obtaining information about the circumstances that led to their relatives’ deaths.

There are bound to be a variety of practices across the country, but a picture emerged in the webinar of a care home sector paralysed by panic, defensive in their approach, reluctant to engage in an open and transparent way with bereaved families, buoyed by the fact that regular safeguards – such as inspections by the Care Quality Commission, visits by statutory advocates and family members – are temporarily suspended. The phenomenon of stripping back external scrutiny has left residents “totally unprotected from any form of abuse or neglect”, according to Catalina Devandas, the then UN Special Rapporteur on the Rights of Persons with Disabilities.

Panellists signposted attendees to the Covid-19 Bereaved Families for Justice, a campaign group calling for a statutory inquiry with an immediate phase so that lessons can rapidly be learned. The group has resources for families such as template letters, a closed Facebook group and links to bereavement counselling services. Amos is involved in the group’s care home sub-group, and I am one of the four barristers, with law firm Broudie Jackson Canter, who the group has instructed to provide advice and representation to secure a statutory inquiry.