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Care Homes Newsletter - July 2014

New performance reviews

CQC has a statutory duty to conduct periodic performance reviews of care homes providing adult social services provided or commissioned by English local authorities.

The government has amended, through the new Care Act 2014, the scope of the periodic assessments to be undertaken by CQC and the methods by which such reviews are to be devised.

The scope of these assessments for the provision of services is now to be set through regulations which will come in to force on 1 October 2014 and the purpose behind which is to devise a system of performance ratings for health and social care providers.

Any performance review by CQC of health or social care commissioning would be undertaken under different powers.

Special measures regime to apply to failing care homes

The government has recently announced that the special measures regime introduced for failing hospitals is to be extended to care homes (and home care agencies) in 2015. The new regime could lead to the closure of homes that fail.

The details of the new regime are not yet available but may involve less external support and rely more on shorter deadlines to shock providers into action.

The measures are intended to follow on from the performance ratings to be rolled out this autumn and which should grade care homes as outstanding, good, requires improvement or inadequate.

Some have expressed concerns about how the new measures will be implemented and the financial pressures on those homes put into special measures whilst the opposition said that the government’s budget cuts were the real reason there were social care problems.

New fundamental standards

Following consultations after the publication of the Francis enquiry report, the government has recently published its response and the proposed new regulations.

These include the introduction of fundamental standards (as recommended by the Francis enquiry), fit and proper person regulations and a new statutory duty of candour (as again recommended by Francis).

It is intended that these new regulations will apply to registered care home providers from April 2015.

Consultation on the Care Act 2014

The government issued in June its consultation on the draft regulations and guidance for the implementation of part 1 of this Act (the Act only applies to England). The consultation period ends on 15 August 2014.

The underlying principle behind the Act is personalisation – to allow individuals to determine the care and support which what they want rather than trying to fit individuals into the services which the relevant authorities are intending to provide.

The Act gives local authorities a much stronger role in shaping services and responsibility for their local population. It shifts their duty from providing particular services to a duty to “meet needs”.

The Act will also give carers the right for the first time to assessment and support for their eligible needs.

The intention is also to bring some coherence to health care as provided by the NHS and adult social care, and to interact with the proposals to implement from 2016 the introduction of the cap on care costs and the extension to the financial limits which determine who will receive financial support from local authorities (on which further consultation will follow in 2014 including on whether the current charging rules need to be updated in light of the proposed changes to the UK private pension system). 

The Act builds upon the Health and Social Care Act 2012 which sought to change the health and care system to improve quality and choice of care for patients by, amongst other things, introducing the Clinical Commissioning Groups to commission most NHS care, and new Health and Wellbeing Boards to agree an integrated way to improve local health and wellbeing.

Other elements of the Act covered by the consultation are as follows:

  • the requirement for local authorities to ensure the provision or arrangement of services, facilities or resources to help prevent, delay or reduce the development of needs for care and support, and to establish and maintain an information and advice service covering the needs of all the population in its area and not just those who are in receipt of care and support which is funded or arranged by the local authority
  • new duties on local authorities to facilitate a market for high quality care and support in their area for the benefit of the whole of the local population
  • a duty on CQC to assess the financial sustainability of those providers local authorities would find difficult to replace should they fail financially
  • the duty on local authorities to carry out a needs assessment or a carer’s assessment whenever it appears an adult has needs for care and support, or a carer has needs for support regardless of the authority’s view of the level of those needs or of the person’s financial resources (the intention is to try to harmonise eligibility thresholds across England), and
  • the proposal to create safeguarding adult boards to bring together key local partners to focus on safeguarding strategy and practice (financial abuse is expressly specified to be abuse). The local authorities are to be given the lead role in coordinating local safeguarding activities.

Cuts reduce social care for the elderly

The Institute for Fiscal Studies has warned that, despite the NHS “ring fence”, government spending on health care is facing an unprecedented squeeze, largely because of the need to keep pace with the ageing population and that spending needs to grow by 1.2% pa in real terms to keep pace.

It is estimated that there has been a £1.2 billion reduction on the amount spent on social care services for older people since 2010 whilst Age UK has estimated that there are 800,000 elderly people whose care needs are not being met. This is against the background of cuts to social care budgets by local authorities as part of the government’s deficit reduction strategy.

Age UK has indicated that, although more than £400 million was redirected from the NHS to social care, the sector is still suffering from a shortfall of £769 million. Age UK said that, although it welcomed the reforms introduced by the Care Act 2014, it was concerned that the reforms would be undermined by inadequate funding.

Unlawful detention in care homes

A House of Lords enquiry has concluded that legislation to protect people with mental health conditions has failed and that thousands of vulnerable people are being unlawfully detained in care homes (and hospitals) across England and Wales. 

The enquiry considered the impact of the Mental Capacity Act 2005 and heard that many care homes did not apply to their local authority to obtain an appropriate Deprivation of Liberty Safeguard whilst some local authorities had also been wrongly declaring potentially mentally incapacitated people well to avoid taking responsibility for them. 

The Supreme Court judgment in P v Cheshire West and Chester Council clarified that there was a deprivation of liberty for the purposes of article 5 of the European Convention on Human Rights if a person was under continuous supervision and control and was not free to leave, and the person lacked capacity to consent to those arrangements.

Relevant staff at care homes should therefore consider (and review) care and treatment plans to ensure that, if a potential deprivation of liberty has been identified, alternative ways are considered to provide the care and treatment, and that, if the care/treatment plan would unavoidably result in a deprivation of liberty judged to be in the person’s best interests, that was authorised by the local authority.

Local authorities should also review their allocation of resources in light of the revised test laid down by the Supreme Court to ensure they meet their legal responsibilities.

This article was written by Catherine Drew.

For more information please contact Catherine on +44 (0)1483 252530 or catherine.drew@crsblaw.com.