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Care Providers Alert May 2013

Sarah Ellson


United Kingdom

The Government launched a consultation on "Market Oversight in Adult Social Care", containing proposals for changes to the financial regulation of care homes.

Proposed Changes to Financial Regulation of Care Homes

In what appears to be a direct response to the collapse of Southern Cross Healthcare, the Government launched a consultation on "Market Oversight in Adult Social Care", containing proposals for changes to the financial regulation of care homes. This consultation was published in December 2012 and closed on 1 March 2013.  The consultation follows the publication of the Care and Support White Paper in July 2012, which emphasised the importance of a service user not being left without care and support, should a care provider fail. Introducing further proposed measures to manage provider distress and provide reassurance to service users on the transition of quality care, in the event of provider failure.

The proposals included, strengthening and clarifying the existing responsibilities of local authorities, by creating a statutory duty on local authorities to meet the temporary care and support needs of any person (whether self-funded or in receipt of residential or non-residential care) if they have urgent un-met needs as a result of provider failure.  However, it was acknowledged that this may be less effective, where the size and scale or type of service provision may make it difficult for a local authority to ensure people continue to receive the care they need if that organisation fails. The Government therefore proposed a system of checks on the finances of the largest care companies to give an early warning of potential problems, and to challenge financial systems which could be unsustainable or reduce quality. The proposal was for a new regulatory system of targeted market oversight, which would involve a regulator working with the local authorities to provide additional oversight to providers meeting a certain "high risk" threshold. Rather than creating a new regulator, the Government's favoured approach was for one of the existing care regulators, either the Care Quality Commission or Monitor, to take on new functions.

The Consultation aimed to explore where the risk threshold should sit to bring providers into the central oversight regime. It was proposed that those providers that meet the threshold will be required to provide additional reassurance and information to the regulator regarding their ability to deliver quality care services, and would also prepare contingency plans which cover two scenarios: (i) a "recovery plan" to set out the actions to be taken to recover a struggling provider, including provisions to maintain the quality of care; and (ii) a "resolution plan" which would set out the mechanisms in place to allow a smooth transition to new ownership and continuity of quality care, once an organisation is no longer able to continue its operations. The Consultation also sought to gather evidence of costs, in order to consider the viability of the options presented.

The Government's response to Consultation was published on 4 May 2013 and set out the framework for the new regime.  The Government confirmed its decision to create a new legislative provision to apply to local authorities specifically in the case of provider failure.  It also confirmed that the Government will bring in a system of central financial oversight for "difficult to replace" providers (where the provider is large or the services are particularly specialised).  This regime will require providers to disclose financial information, create an early warning system and allow necessary interventions to protect people's care.  The Government's firm decision was that the CQC should undertake this central oversight function. While this response goes some way to defining the proposed approach to the oversight regime, there are still many details which remain to be resolved and may be consulted on further in future.

As this Alerter goes to press we have just heard the Queen's speech and are anticipating complex new legislation in relation to the funding of care.

The Care team at Fieldfisher are also looking at the proposals for hotel operators to provide care beds in facilities on hospital sites.  If this is an area you would like to discuss further please do not hesitate to contact the team.

Sector publications and news

Council pays out thousands of pounds over 'shambolic' social work assessment systems
Community Care, 28 March 2013

An investigation by the Local Government Ombudsman has found that "few, if any" assessments of adults with mental health problems were carried out in "proper manner" by Birmingham Council.

Baby P Social Workers lose Court appeal against sacking
BBC News, 12 March 2013

The Court of Appeal has ruled that Marie Ward and Gillie Christou, social workers for Baby P, were not unfairly dismissed by Haringey Council.

Government publishes Care Bill
GOV.UK, 10 May 2013

The Care Bill introduces legislation which includes provisions relating to reform of care and support and the delivery of the government’s response to the Francis Inquiry.

Plans to help staff spot child abuse
Clinical Services Journal, February 2013

Health Minister, Dr Dan Poulter has announced plans for a new system from 2015 to help doctors and nurses spot children suffering from abuse and neglect.

Government rejects power of entry for social workers
10 May 2013

The Government has rejected a call for social workers to be given the power to enter homes where they suspect abuse is taking place after a mixed response to a consultation.

Adult social workers face assessment safeguarding overhaul
Community Care, 10 May 2013

Proposals to simplify the adult social care law into a single Act are set to come into force in 2015, reducing administrative burdens on social workers but increasing the number of reviews and assessments carried out by councils.

Striking the balance between open justice and safeguarding vulnerable adults
Community Care, 2 May 2013

Senior judge Sir James Munby has been asked by the Justice Secretary to conduct a review into the proceedings of the Court of Protection, which hears Mental Health Act cases.

Hunt overhauls regulation of social care in wake of Mid Staffs
Community Care, 26 March 2013

Jeremy Hunt has announced that social care providers are to be given star ratings from inspection teams working for the Care Quality Commission, and will also be expected to adhere to a "duty of candour" by reporting any care behaviour which is believed to have lead to injury or death.

Care Quality Commission

Second Care Update published by Care Quality Commission
Care Quality Commission, 12 March 2013

Care for people with dementia is not meeting their needs as services are struggling to cope, according to the latest Care Update.

Issues affecting the delivery of good home care services
Care Quality Commission, 13 February 20

The findings of a CQC review of home care services show that good care is being delivered, but a minority of people are affected by late or missed calls, lack of continuity of care workers, poor care planning and more.

Care Quality Commission Strategy 2013-2016
Care Quality Commission, 18 April 2013

The Care Quality Commission is to make changes to the way it regulates services in it's latest strategy plan for 2013-2016, including developing new standards of care, and making sure that inspectors become specialised in checking particular care services.

First Tier Tribunal for Health Education and Social Care

Mr Dennis Clark - Trading as Rosecroft Rest Home v Care Quality Commission
(2012) UKFTT 730 (HESC) (03 December 2012)

An appeal by the registered provider for Rosecroft Rest Home (Mr C) was brought against the decisions by the CQC to (i) impose conditions on his registration pursuant to section 31 of the Health and Social Care Act 2008 ("HSCA") (stopping him admitting new residents) and (ii) serve a Notice of Proposal to seek to cancel his registration pursuant to section 17 of the HSCA. The concerns were first referred to the CQC on 13 July 2012 and the section 31 Notice of Decision was issued on 1 August 2012 (when the residents were removed). Part of Mr C's case was that he was given insufficient notice of the concerns and did not have time to comply with the breaches of the Regulations. The appeal was dismissed on the basis that Mr C did not fulfil the statutory criteria for registration under section 17(1)(c) of the HSCA. Mr C was found to lack insight and there were concerns regarding record-keeping, risks and risk-assessments, cleanliness and health and safety and the residents were subjected to a poor quality of care. The Tribunal noted that concerns had been raised about Rosecroft for some time but no action was taken. 

Mrs Ishrat Nazir v OFSTED (2012)
(2012) 2001.EY-SUS

Mrs N has been a registered childminder on the Early Years Register and both parts of the Childcare Register since 24 February 2009. She was also a foster carer and during the time when there were two children in her care ("L" aged 5 and "M" aged 9), L made a disclosure to her biological mother that Mrs N had pinched her on the cheek and also raised a number of other issues which indicated neglect and poor standards of care of the foster children (such as dirty clothing and being unwashed).  Following an assessment by Children's Service, the children were removed from Mrs N's care and a referral to Ofsted was made. A decision was taken by Ofsted to suspend the registration of Mrs N on an interim basis under section 69 of the Childcare Act 2006 for six weeks and Mrs N appealed against this decision to the Tribunal. The appeal was allowed, as the references from families indicated that the allegations presented a theoretical (rather than actual) level of risk as they related to the provision of care on a more sustained basis.  It was determined that Mrs N remaining on the register until the matters were resolved did not amount to placing the children in her day care at risk of harm.    

Dr Agarwala v Wakefield NHS (2012)
(2012) UKFTT 771 (HESC)

Dr Agarwala ("Dr A") appealed a decision by NHS Wakefield PCT to remove him from its Performer's List under Regulation 10(6) of the NHS (Performers List) Regulations 2004, as he had not worked within the area of the PCT during the preceding 12 months. Dr A had previously been suspended from the Performer's List after self-referring following his own admission to hospital.  The GMC Fitness to Practise Panel subsequently placed conditions on Dr A's registration and the PCT suspension was lifted.  The Tribunal noted that members of the public may have concerns about the practicalities and safety of a PCT monitoring a GP who had not worked in the area for some time, but balanced this against the fact that Dr A had been working elsewhere in Out of Hours, where he had been subject to audit of his work on a 3 monthly basis (which could be shared with Wakefield PCT) and had a satisfactory appraisal in 2012. It was considered that this lowered the assessable risk to patients and the PCT had not satisfied the Tribunal on the balance of probabilities that it was appropriate to remove Dr A from the Performer's List. Observations were also made by Judge Hiller that PCT decisions about removal should be referred to an appropriate decision-making group with full minutes of the meeting being taken and full reasons given to the doctor. 

Disclosure and Barring Service

The Disclosure and Barring Service comments on the release of the Francis Report into concerns at Mid-Staffordshire NHS Trust
DBS, 6 February 2013

DBS CEO Adriènne Kelbie has responded to the publication of the Francis Report into the problems at Mid Staffordshire NHS Trust.

Certain old and minor cautions and convictions will no longer be disclosed on a DBS certificate.
Disclosure and Barring Service, 27 March 2013

The Home Office has started the legislative process that certain old and minor cautions and convictions will no longer be disclosed on a DBS certificate, following a Court of Appeal ruling that this was not compatible with article 8 of the Convention for Human Rights.

Local Authority Cases

R (on the application of Redcar & Cleveland Independent Providers Association) v Redcar & Cleveland BC (2013)
(2013) EWHC 4 (Admin)

A local authority had acted unlawfully in setting the rates which it was prepared to pay care homes in its area for residents who were wholly or partly funded by it. It had failed, contrary to relevant statutory guidance, to assess and have due regard to the actual costs of care, in particular in relation to local factors.

R (Care North East Northumberland) v Northumberland CC (2013)
(2013) EWHC 234 (Admin)

A local authority's decision to fix care home rates in the Northumberland area for the period of three years had not been unlawful.  The local authority did have due regard to the actual costs of care and also had regard to relevant considerations, engaging genuinely and properly in the consultation process and reaching a conclusion that was well within the ambit of its legitimate judgment. 

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