The future for care homes and the CQC.
9th December 2016
All Local authorities have a responsibility to provide care to persons who satisfy the eligibility requirements under the Care Act 2014. Where a Local Authority believes that an adult may have needs for care and support, the acting authority must assess whether they do in fact require care and support and what those needs are. This is otherwise known as a “needs assessment.” In assessing the person’s needs, the Local Authority is obliged to consider the level of the adult’s needs for care and support, or the adult’s financial resources. A number of other considerations are also encouraged including: the adult’s wishes, mental and physical health, capacity and the impact on their well being. Once the Local Authority has determined a person to have an eligible need for care and support, they must then provide them with information on any support which is available to them.
All registered care providers should be thoroughly monitored and reviewed in order to ensure the residents or patients are receiving an exceptional standard of care. The Care Quality Commission (CQC) is the independent regulator for all health and social care in England including but not limited to: care homes, dentists, clinics and hospitals. The CQC strives to ensure fundamental standards are upheld including:
- person centred care
- dignity and respect
- safeguarding against abuse
- appropriate premises and equipment; and
- competent staff.
The five key matters crucial to such investigations are whether the providers are ensuring the service is: safe, effective, caring, responsive and well-led. The role of the CQC is of the upmost importance in order to review the varied standard of care across each sector specifically in ensuring consistent reputable care for those who are in need.
The CQC has a wide set of powers to take action where registered care providers do not meet the standards imposed under the Health and Social Care Act 2008 (HSCA 2008). The CQC is authorised to require documents, information or records from any person where they are a health care provider, NHS body, English Local Authority, provider of adult social services or a person carrying on a regulated activity (section 64 of HSCA 2008). Furthermore, the CQC has the power to require an explanation where a person (without reasonable excuse) fails to comply with these requirements (section 65 of HSCA 2008). The CQC also has enforcement powers where it identifies registered providers failing to achieve the level of standards required. This includes the ability to investigate the premises, publish ratings, issue warnings or requirement notices and in more extreme cases cancel registration and issue penalty notices. This enables the CQC to hold registered care providers and managers as responsible for the failures of service provided and ensure the patients or residents are protected from harm.
Generally, the CQC is obliged to report findings of both good and poor quality ratings in relation to the standard of care amongst other issues. Where the CQC identifies serious concerns, whether in relation to staff, general care, records or leadership, many care homes have been instructed to close down. This has sparked controversy amongst care providers such as Orchard Care, a care provider which took on managing two care homes, which was shocked at the demand for closure and suggesting they were working towards addressing the issues identified. However, the CQC Deputy Chief Inspector emphasised the importance of ensuring both a high standard of care and that peoples’ needs are met. It is acknowledged that such closures have caused strain upon staff as well as residents and their families, but such issues have been described as serious and therefore detrimental to welfare. However, the CQC issuing closures, cancelling registrations or providing lower ratings may also be detrimental to a providers reputation specifically where they have limited financial resources or are in the process of solving the problem.
Care England Policy Director, Ann Mackay has expressed concerns as a result of the procedures used by regulators and the effect these are having on both care homes as well as family members of such patients. For example, she cites excessive paperwork as “an issue we have raised on many occasions and, in particular, duplication of information requests from regulators and commissioners which represents… an extraordinary burden on homes.” Furthermore, Ms. Mackay emphasises the need for urgent discussion with the care home sector and Chief Coroner’s Office to improve and reform the impracticalities concerning family members suffering distress and confusion where their relative is subject to safeguards and dies in a care home. Ms Mackay explains that this does not immediately indicate poor service of care and therefore further guidance on these issues is necessary.
Recent developments have sparked controversy concerning the extent to which the CQC is ‘fair and transparent’ in their review procedure. Service and Healthcare providers such as care homes are permitted to challenge the factual accuracy of a CQC inspection report through a process known as“Factual Accuracy Comment Review.”This involves submitting a Factual Accuracy Comment Log, identifying all typographical or factual inaccuracies. However, the CQC has now broadened this to allow providers to also challenge the level of rating they are issued by the CQC. This involves the same process as above, however the aim is to encourage an open and transparent method. In the recent decision of R (SSP) v Care Quality Commission, the courts agreed that the CQC wrongly rejected several corrections of fact which the GP Practice had challenged after receiving the draft inspection report. The courts recognise that the CQC in their review must carry out an independent review of the initial decision made and not use the same inspector who drafted the original inspection report.
In light of the above, it is no doubt a positive step to see new practical guides published recently. This suggests the progressive improvement of local health communities with regards to the relationships between independent care service providers and the NHS. Further to this, the CQC has developed new strategic remedies to help improve the investigation and regulation of care providers between 2016 and 2021. The CQC will continue to focus on the five key matters as stated above, but the aim over the next five years will be to ensure that the approach is more responsive and collaborative in order to achieve high quality care (more information can be found in the CQC’s strategy report: Shaping the future: CQC’s Strategy for 2016 to 2021.)
The CQC aims to encourage greater co-operation with care providers, funders, staff, commissioners and regulators, and will remain consistent in both their purpose and role in assessing the quality of care. However, they have publicly declared their intention to use more unannounced inspections, introduce new ratings and focus resources on assessing the quality of lower rated care providers rather than higher ones. In order to ensure the CQC have achieved their objectives they have developed measures in which they plan to regularly review their activities in the hope of providing further clarity, fairness and transparency in their work.
Georgina Stephan is a Trainee Solicitor at Aston Brooke Solicitors. Please do not hesitate to contact us on 020 3475 4321 for any issues related to care homes or the Care Quality Commission.
This article does not present a detailed statement of the Law and does not constitute as legal advice. This is a summary only and legal advice should always be sought on an individual case basis.
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