With winter now upon us, there is a risk that both COVID-19 and other traditional winter viruses such as flu, will be on the rise. Although the first vaccinations started to be given in Scottish care homes on 14 December 2020, operators will no doubt continue to be concerned about potential claims from residents and staff. Below, we discuss some key points for claim prevention that care operators should be aware of.

Risk Assessment Review

All employers have a legal duty to assess the risks to the health and safety of their employees and others. Most, if not all, care home operators will now have in place an assessment addressing COVID-19 risks but it is vital the assessment remains fit for purpose as circumstances change - whether that be as a result of the changing seasons, the vaccination process or altering restrictions. In short, a COVID-19 risk assessment drafted in May is not necessarily going to be suitable for December.

Official Guidance

To assist with the control of a Coronavirus incident or outbreak amongst residents, NHS Scotland has provided a COVID-19 check list for operators and management. The checklist advises the following procedures are put in place:

  • Infection prevention and control precautions, such as placing a symptomatic resident in isolation for 14 days and ensuring that possible cases are clearly documented;
  • Use of correct personal protective equipment (PPE);
  • Safe management of care equipment, including decontamination or disposal following use;
  • Safe management of the care environment, such as thorough cleaning and removal of all non-essential equipment;
  • Increased focus on hygiene, including the provision of hand washing stations and sanitizer; and
  • New admissions, including that all patients who have recovered from COVID-19, must isolate for 14 days before they can be admitted into a care setting. In addition, recovered residents should have two negative tests prior to discharge from hospital.

Regarding employees, the following guidance has been issued:

  • Staff with underlying health conditions should not provide direct care to patients;
  • Risk assessments as to on-site staff should be undertaken;
  • All staff should decontaminate/sanitise upon entering and leaving patient areas;
  • Good respiratory hygiene is encouraged, with the use of disposable tissues, waste bins and hand hygiene facilities;
  • Staff must minimise interaction with shielding residents to essential purposes only and wear appropriate PPE; and
  • All staff who develop symptoms should be clinically assessed and offered testing for COVID-19.

Key strategies for claim prevention

Claims prevention requires robust health & safety practices. Given how quickly current guidance can change it is important for care operators to pay close attention to any updates in order to comply with current measures.

Key points for employers within the care home sector are:

  • The requirement for a COVID-19 secure risk assessment;
  • The provision of PPE and suitable facilities for handwashing/ maintaining personal hygiene;
  • Detailed logs should be kept to consider if any employee or resident is at a higher risk of infection or showing symptoms;
  • Policies should be prepared on how to deal with a suspected infection, including rapid shut-down procedures; and
  • Regular testing and clinical assessment should be available for those with suspected COVID-19.

Additionally, care operators should be aware of the potential impact on the mental health of their residents and staff. Care home workers may suffer from increased levels of stress and fatigue given the current restrictions in place, and, of course, residents may be feeling the effects of the change in the ability for family and friends to visit. For employees, the ability to discuss this with management is key and should allow care operators to minimise potential risk. For residents, the benefit of visits for their wellbeing must be balanced against the potential risk of infection.


    Care home operators should ensure that their health & safety procedures and policies are fit for the current COVID-19 crisis and ensure the safety of residents and employees. Official guidance should be continually reviewed and reflected in risk assessments and procedures in order to minimise the potential for claims to arise.


    Laura McMillan

    Partner & Director of Advocacy

    Craig Fulton

    Trainee Solicitor