Expert advice on challenging a false neglect or wrongful death allegation

By Raspberry Jim,

The sudden and tragic death of a nursing home or residential patient can be devastating for all those involved.

From the family who have lost their loved one, to the facility and its staff who worked tirelessly to treat the elderly resident in their final days, a loss can be profound.

However, an added allegation of neglect, which may have contributed to the resident’s death, could exacerbate the family’s grief and have significant legal consequences for the nursing or residential home involved.

Earlier this month nine private care homes in West Sussex were placed under investigation by the Care Quality Commission (CQC) over allegations of ill-treatment, which may have resulted in the death of a number of residents.

This is just the latest in a string of investigations into alleged neglect and abuse at care facilities across England, with numerous homes closed or placed into special measures by the health and social care inspectorate.

Figures from the CQC released earlier this year show that of 4,042 residential nursing homes inspected found that 1,496 – or 37 per cent – were considered unsafe.

These statistics will be troubling for the majority of nursing and residential homes across the country which endeavour to protect and safeguard against the neglect of those in their care.

Consultant Phillip Williams, of leading serious fraud, crime and regulatory law firm Blackfords LLP, said facilities were facing a higher level of scrutiny in recent years.

He said: “With a number of high profile cases of neglect and related deaths being reported this year alone, residential and care homes are now under a significant level of pressure to ensure they meet standards.

“While it cannot be argued that this level of scrutiny is vital to ensuring the highest quality of care to elderly and vulnerable patients, it could lead to those in the industry feeling understandably concerned over the potential for being faced with allegations.”

But what can be done if a facility feels it is wrongfully accused of neglect? And, if this turns into an allegation of wrongful death of a resident, what steps can they take next?

Blackfords LLP specialises in representing care homes accused of regulatory breaches.

He said: “Any allegation is traumatic, but in cases where blame has been wrongly attributed, it is imperative that nursing and residential home practitioners feel they can speak out and seek assistance.

“Just as relatives have rights, so too do nursing and residential homes and their staff. In any instance where it is felt an unfair allegation is made, it is vital you seek legal assistance at the earliest opportunity.”

On dealing with an allegation of neglect, Mr Williams stressed that certain criteria had to proved by the complainant.

He said: “An accusation of neglect or contributing to a patient’s death, can be understandably upsetting for the facility and its staff.

“However, in order for an allegation of neglect to be made, certain criteria must have been demonstrated by the facility.

“For example, care home negligence can be demonstrated through factors including emotional and social neglect, medical negligence, basic needs negligence, or personal hygiene neglect.

“Issues within these categories could include malnutrition, lack of clean bedding, ineffective lifting aids, and failure to provide medication.

“Nursing or residential homes which have stringent checks in place to ensure the effective care of their residents, will be able to present these in their defence should a legal case arise.

“It is vital to remember that in any of these instances, the complainant must have substantial evidence that the facility or staff member was abusive and caused significant harm or suffering to the patient.

However, if it is an individual staff member who is accused of neglect or abusive behaviour, what steps can the facility take to defend itself.

“Staff who work at residential and nursing facilities are entrusted with the care of elderly patients during extremely vulnerable times of their lives. As such, rigorous screening processes, including Disclosure and Barring Service (DBS) checks, are carried out.

“Should a legal allegation arise at a facility, managers can prove that their staff underwent the necessary DBS checks before interacting with patients.

“Furthermore, practitioners can introduce a raft of measures such as introducing staff checks, care plans, and charts to demonstrate how frequently and in what capacity a staff member was caring for a patient. This proof could help to counteract any false accusations brought against an individual employee if an investigation progresses. It can also serve to highlight the patient’s satisfaction with the level of their care.”

Mr Williams said that in any of these instances the accused should seek legal advice from the complaint’s inception.

However, what steps do nursing and residential homes need to take in cases where a patient passes away following a neglect allegation? Could they face a wrongful death lawsuit?

Mr Williams said: “As in the case of negligence, the strength of evidence is vital. And it falls to the complainant and their solicitor to produce this once again.

“In order to bring a wrongful death lawsuit against a facility, a solicitor must prove the home’s conduct directly contributed to the death. For example, if the patient fell and suffered a serious injury but was consequently left without aid for a number of hours and then died.

“They must also prove neglect and also liability, as in the case of a serious fall, inadequate or faulty lifting aids were provided which contributed to the fall.

“It must also be noted that the injury or abuse must be judged as severe or timely enough to have resulted in the eventual death.

“In relation to the example of a fall, the death must be linked with symptoms arising from this, or occur soon after,” Mr Williams said. “An unrelated matter which arises some months later would not necessarily leave you liable.”

Mr Williams once again stressed the importance of effective protocol and filing systems in order to challenge any potentially false claims. A well maintained patient care plan, or daily chart system could be the difference between a wrongful death conviction or not, he stressed.