Recently, gaps in insurance meant injuries by a carer might not be covered. Wrigleys have now solved this issue and offer direct employment packages.
During the course of our deputyship practice over the last few years, Wrigleys have become concerned about the way directly employed care packages work in relation to insurance and regulation.
We identified what we regarded as significant gaps in insurance cover for our clients. An example was that if the client was injured by an employee, there may be no insurance cover for the client. A claim may lie against the deputy if it could be alleged that they had not acted with reasonable care and skill, but the deputy may not be insured in respect of that claim. We have identified that professional deputies may believe that their professional indemnity insurance would cover them in these situations but Wrigleys have received advice that this may not be the case.
Professional deputies acting for P as employer of care staff often delegate the risk management of employer responsibilities to case managers or others but in law, the employer's legal liabilities cannot be delegated in this way. There is rarely any agreement with the insurer that such delegation meets the standards of reasonableness that the insurer would expect. A failure by the deputy to establish this in the event of a claim could result in the insurer refusing an indemnity.
The delegation of the risk management of care to case managers has consequences for the requirement of the care package to be regulated by CQC. Wrigleys have identified that many care packages arranged by deputies and families are likely be governed by Care Quality Commission regulation. This has important implications for the manner in which packages are commissioned and supervised.
Wrigleys have been working to resolve these issues and believe that we have developed a better direct employment solution for all parties involved in direct employment care package commissioning. The solution, which may involve the establishment of an Independent User Trust (IUT), does involve a clear understanding of the role of deputies, case managers, families and clients in the care arrangements and the use of an appropriate insurance policy.
The main benefits for clients and deputies are:-
- The client should be covered if they are injured by a carer.
- Deputies will be covered for claims brought on the basis that they did not act with reasonable care and skill.
- Deputies and others will know in advance that they are acting reasonably rather than never being sure until a claim happens.
- Clarity regarding the extent of case management responsibilities of the case manager necessary to meet CQC regulatory requirements.
- The avoidance of unwittingly exposing people who should be registered with CQC to criminal liability for not registering.
- Where an IUT is used, avoidance of the employment law implications of persons with compromised mental capacity acting as employer.
In our view, these arrangements have the potential to resolve many of the problems that represented a serious concern.