Fundamental standards in care - enforcement

15 April 2015


1 April 2015 saw the introduction of the largest reform of social care in more than 60 years. As well as introducing new fundamental standards to the provision of care, new criminal offences have been created for breach of those standards, which will be investigated and enforced by the Care Quality Commission (CQC). The CQC has recently published guidance for providers on the new legislation, an updated enforcement policy and a memorandum of understanding (MOU) with the Health and Safety Executive (HSE) and the Local Government Association (LGA), all of which provides much needed clarity on the new law and how it will be enforced. In addition, on 13 April the Criminal Justice and Courts Act 2015 introduced further offences for care workers and care providers for the ill treatment or wilful neglect of those in their care. These offences will be investigated by the police and prosecuted by the CPS. CQC Guidance The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the "Regulations") came into force on 1 April 2015. Section 23 of the Health and Social Care Act 2008 states that the CQC must provide guidance to help providers comply with the law and regulation 21 of the Regulations states that, for the purposes of compliance with the requirements of the Regulations, registered providers must have regard to guidance issued. It is therefore crucial that providers use the guidance to produce the systems and procedures that will help them to stay compliant. The guidance is available here. Enforcement is one of the core components of the CQC's operating model. The CQC now has a range of powers including requirement notices, warning notices, civil enforcement powers, special measures and criminal sanctions. These powers will be used first, to protect service users from harm and risk of harm and second, to hold providers and individuals to account. CQC enforcement policy According to its new enforcement policy, the CQC will use the following principles to inform the use of their powers: Being on the side of the people using the services. The CQC recognises that providers often have greater power, control or information and that misusing it can prevent people from receiving high quality care services. Integrating enforcement into their regulatory model. All CQC inspectors are trained so that their engagement with a provider covers all aspects of the regulatory relationship, including formal enforcement. There are no separate enforcement staff. There is a close relationship between the new ratings system and the Regulations. Proportionality. The response will be proportionate to the circumstances of the case. The CQC will intervene formally if people are at an unacceptable risk of harm or if providers are repeatedly or seriously failing to comply. Consistency. The CQC will try to deal with similar cases in a similar manner while retaining enough flexibility to allow them to respond differently depending on the circumstances. Transparency. Not only will the CQC make its policy available, it will also publish information on their decision making, the appeals process and their enforcement activity. CQC/HSE/LGA memorandum of understanding  The purpose of the MOU is to "help ensure that there is effective, coordinated and comprehensive regulation of health and safety for patients, service users, workers and members of the public visiting those premises." It is designed to try to close the regulatory gap identified by the Francis Report into the failings at the Mid-Staffordshire NHS Foundations Trust. The MOU clarifies that: The CQC is the lead inspection and enforcement body for safety and quality of treatment for patients and service users from a registered provider. The HSE/Local Authority are the lead inspection and enforcement bodies for health and safety matters for patients and service users who receive health or care services from non-registered providers. The HSE will enforce health and safety at all healthcare premises, nursing homes and public social care providers. The Local Authority will be responsible for other residential care homes. The HSE/Local Authority are the lead inspection bodies for the health and safety of workers, visitors and contractors. So, if a service user falls from a window, is scalded in a bath, chokes on inappropriate food or is not treated in line with their care plan, then the CQC will investigate and enforce. If an employee hurts their back moving a poorly maintained trolley, or a contractor's scaffold tower collapses, then expect the HSE/Local Authority to take the lead. New criminal offences The Regulations introduce the following standards, breaches of which are new criminal offences: Care and treatment must only be provided with the consent of the relevant person. The registered person (i.e. registered provider or registered manager) must provide to the CQC when asked to do so, and within 28 days, a summary of complaints, responses to those complaints and other relevant information relevant to those complaints. The registered person must send to the CQC when asked to do so and within 28 days, a written report setting out how it is assessing, monitoring and improving the quality and safety of services, how it is assessing, monitoring and improving risks arising from its activities, and its plans for improving standards. In addition, an offence is also committed where there is avoidable harm to a service user, a service user being exposed to a significant risk of such harm, or any loss of money or property by a service user, as a result of a breach of the following: Care and treatment must be provided in a safe way for service users. This includes the following: assessing risks; doing all that is reasonably practicable to mitigate risks; ensuring carers have the qualifications, competence, skills and experience to provide care safely; ensuring that premises and equipment are safe and supplied in sufficient quantity; proper and safe management of medicine; preventing, detecting and controlling the spread of infection; working with other providers to ensure care is properly planned. Service users must be protected from abuse and improper treatment by the use of effective prevention systems, and effective investigation procedures. There must be no discrimination or inappropriate control or restraint of a service user and care must not be degrading or disregard the needs of the service users. The nutritional and hydration needs of the service user must be met where the care or treatment involves the provision of accommodation, an overnight stay or where those needs are part of the care or treatment provision. Even though all these new criminal offences have a statutory defence if the registered person can prove that they took all reasonable steps and exercised all due diligence to prevent the breach, in the aftermath of a failure in care, they will be difficult to defend. As with many other regulatory offences, there is no need for the CQC to prove any intent on the part of the service provider. If a service user has suffered harm because, say, an inexperienced carer made a mistake, then a criminal offence will probably have been committed. The sanctions available to the courts are significant. Ill treatment and wilful neglect The Criminal Justice and Courts Act 2015 (sections 20 and 21) introduces two new criminal offences for care workers and care providers. From 13 April 2015, it is an offence for a care worker to ill-treat or wilfully neglect someone to whom care is being provided. Previously, these offences could only be committed if the recipient of the care was receiving treatment for a mental disorder or if they lacked mental capacity. A "care worker" is defined as anyone who is being paid to provide social care to adults or health care to children or adults. The "wilful" element of the neglect offence connotes that the perpetrator acted deliberately or recklessly. Similarly, it must also be proved that any "ill treatment" was a deliberate act where the carer knew that ill treatment was taking place or was reckless about whether it was. The offences are not designed to catch genuine errors. The care provider will be guilty of an offence if one of its carers ill-treats or wilfully neglects an individual under its care, the way in which the provider manages or organises its activities amounts to a gross breach of a relevant duty of care owed to the victim, and without that breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur. This language mirrors the wording used for Corporate Manslaughter. Investigators will look at the systems and procedures that the operator put in place to provide care. Policies, training and auditing, for example, will be very important. A "care provider" is defined as a body corporate or unincorporated organisation which provides or arranges for the provision of health care or adult social care. It includes an individual who provides the services or who employs or makes arrangements for others to assist in providing the care. Hospitals, Commissioners, GP Practices and registered providers, for example, are all therefore potentially caught. The offence by an individual carries a potential prison sentence of five years as well as an unlimited fine. The provider offence carries an unlimited fine. The court can also make a remedial order and a publicity order on the convicted care provider. Advice It is essential that providers understand the content of the Regulations, the extra information provided by the guidance and the way that the CQC intend to approach investigation and enforcement. The guidance adds extra detail to the bald offence set out in the Regulations. For example, the guidance explains that the risk assessment required in the Regulations for providing safe services must be carried out in accordance with the Mental Capacity Act 2005. All the extra information now available should be used by providers to inform both the systems and procedures that are put in place to provide high quality care, as well as the provider's attitude towards the CQC during the investigation phase after an incident. It may be possible to persuade the CQC to act less severely if it understands the context of the incident and the measures in place before it happened to prevent it. The CQC continues to evolve as an organisation. From 1 April 2015, it has fundamental standards which it will require providers to deliver and a wide-ranging suite of powers to help it ensure that high quality services are provided safely, effectively and compassionately. In the aftermath of an incident, both providers and individual carers should also expect a police investigation, and all that that entails. It is more important than ever to invest in robust risk management systems and procedures and ensure (and be able to prove) that they are understood and followed on the ground.


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