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Care Sector Alert Autumn 2011

Sarah Ellson
17/11/2011

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United Kingdom

Care Sector Alert Autumn 2011

In a recent statement the Information Commissioner revealed that the majority of data breaches across the health sector could have been prevented if good information governance had been put in place within an organisation.

With the power of the Information Commissioner to impose fines of up to £500,000 on those responsible for failing to safeguard personal information, and an increased focus by the Information Commissioner on the health sector generally, this is a good time for those involved in domiciliary health care to review the way in which they handle the personal information of those in their care, as well as their own employees.

Personal information will include names and addresses, medical information, opinions about individuals and generally all details about an individual's care regime.  Such information is subject to the safeguards contained in the Data Protection Act (DPA). The DPA requires that personal information be processed fairly and lawfully, that such information should not be kept for longer than necessary and should be adequate relevant and up to date.  In addition, the DPA contains specific obligations regarding security of personal information, which is of particular relevance when dealing with medical information or vulnerable individuals.

Those involved in the domiciliary care sector must comply with the DPA in relation to the personal information of both employees and residents. The nature and extent of their obligations under the DPA may vary depending upon the nature of the services provided and the relationship with other organisations and there may be circumstances where the care home has a joint responsibility for compliance with another body, or where the obligations are set out in a contract with a third party.

A good starting point is to arrange for employees to be trained so that they understand their duties of confidentiality and their obligations under the DPA. A structured training programme is likely to be particularly important where there may be a high turnover of employees.

Where a third party service provider handles personal information on behalf of a business, such as a company contracted to shred confidential material, the business will still be responsible for the acts of the service provider under the DPA. This means that a domiciliary care provider would be responsible in law for the acts of such third parties. In such cases there must be a contract with the service provider in which the service provider agrees to put in place adequate security measures to safeguard the information.
Given the sensitive nature of information held by domiciliary care home providers, good information handling practices are of paramount importance. In addition to keeping a record of any training undertaken, care homes should have policies and procedures for ensuring compliance with the DPA, including the steps to take in the event of the loss or misuse of data. This will assist in ensuring day to day compliance with the DPA and also, in the event of any data loss or security breach, such polices will provide evidence of how personal information is handled which may mitigate any enforcement action.

The Information Commissioner has recently announced that it is keen to audit those private sector bodies willing to volunteer to enable them to evaluate their own DPA compliance .This is something to consider for those organisations wanting advice and guidance on the standards of data handling they should be observing.

Data protection compliance has far reaching implications as a lost lap top containing resident's data or the discovery of a skip full of confidential information can lead to a loss of reputation from which an organisation can take time to recover.


Care Quality Commission

In the wake of the closure of Southern Cross, on 10 October the Government issued a discussion paper seeking stakeholder views on the need for greater monitoring of financial viability in the care home sector.

 
The challenge is to allow a free market to operate, where poor providers are allowed to go out of business and the market demands innovative and efficiency, whilst recognising the concept that certain large providers may be "too big to fail".  As we have seen with Southern Cross financial difficulties can blight the lives of hundreds of vulnerable residents and their families.  The discussion paper covers options such as a bond arrangement (as operates in the travel agency sector) or alternatives ways to "back up" or guarantee the system.  There are also discussion points around the provision of information and monitoring of financial viability.  It is a real challenge to know who has the sophistication and ability to fulfil this role - many are anticipating an extended role for Monitor, others have proposed the sector should lead on this issue to avoid burdensome new regulation and most agree that it is naive to think commissioners and purchasers of services will be able to undertake meaningful due diligence on providers.

Responses are invited by 2nd December and we would also be interested in hearing your views. 


Financial Viability Discussion paper 

CQC asks for feedback on improvements to regulatory model - Care Quality Commission, 19 September 2011

The CQC are simplifying and strengthening their regulatory model to reflect their focus on monitoring and inspecting services, and are asking for comments on proposals to increase the frequency with which services are inspected, and to make those inspections more targeted.

Third State of Care report published - Care Quality Commission, 15 September 2011

The CQC have published their third annual report into the state of health and adult social care in England. The latest State of Care report covers the year to the end of March 2011 and is the first in which the CQC has used evidence obtained under the new system of regulation. The report is divided into four main sections: The shape of health and social care provision; Access to care services; Choice and control; and Quality and safety.

National report on dignity and nutrition review published - Care Quality Commission, 13 October 2011

The Care Quality Commission have published their findings into a review that looks at the standards of care that older people receive in hospital.


Sector publications

Suspended social worker was too close to child and mother - Community Care, 23 September 2011

A social worker who had begun to blur the lines between her personal and professional life by forming a close relationship with a child's mother, and by looking after the child privately in her own home, has been suspended for a year.

Poor grasp of Mental Capacity Act impeding outcomes - Community Care, 23 September 2011

Mencap has called for more training in the Mental Capacity Act 2005 for health and social care staff as part of a toolkit published on ensuring people with profound and multiple learning disabilities can have a greater role in decision-making.

31 councils to trial SEN and disabilities reforms - Community Care, 21 September 2011

The proposed single assessment and care plan for children with special educational needs and disabilities will be among proposals piloted by 20 pathfinders, receiving up to £150,000 per local authority to test some "core elements of reform" contained in the recent SEN and Disabilities Green Paper.

Patchy care home advocacy provision prompts review in Wales - Community Care, 3 October 2011

A review has been launched into advocacy arrangements for older people living in care homes in Wales, following growing evidence of inconsistent provision across the country. The review will assess how effective the current arrangements are in safeguarding and promoting the interests of older people in care homes. Preliminary research commissioned shows that advocacy can be of crucial importance to older people at all stages of decision making regarding care homes: from deciding to enter, whilst living in the care home, or when moving from it.


First Tier Tribunal for Health Education and Social Care

TM v Secretary Of State  [2009] 1691.PVA; [2009] 1692.PC

06/09/2011  

An appeal was brought by TM under section 86(3) of the Care Standards Act 2000 against her provisional listing on the Protection of Vulnerable Adults (POVA) and Protection of Children Act (POCA) lists.  A provisional listing was made based on TM’s involvement in the neglect of vulnerable adults, while she was working as a Mental Health Nurse at a Care Home in Wales.  The burden was on TM to show her suitability to work with vulnerable adults and the Tribunal found that TM had failed to shift the evidential burden as to suitability.  The appeal was upheld and the provisional listing of TM as a person unsuitable to work with vulnerable adults was confirmed.

SK v Secretary of State  2010/1804/PVA
22/08/2011

SK appealed against the decision to include her on the Protection of Vulnerable Adults (POVA) List and the Protection of Children Act (POCA) List.  The decision to include SK on the POVA and POCA lists was based upon acts of misconduct that occurred while SK was the registered provider for a care home and included inappropriate conduct towards service users and staff.  The Tribunal found that SK had been guilty of misconduct in relation to a number of matters and she put service users at risk of harm. SK was therefore found not suitable to work with vulnerable adults and the appeal was dismissed.

Roselyn Thompson v General Social Care Council  2011/1888/SW
08/09/2011

An appeal was brought by Social Worker, Roselyn Thompson against a decision by the GSCC Conduct Committee to impose an Admonishment on her registration for a period of eighteen months.  Whilst working as an Intervention Keyworker, it was alleged that Ms Thompson had placed a service user at risk and had failed to respect confidential information.  The appeal was allowed as the Tribunal concluded that an Admonishment of 18 months was disproportionate due to the isolated nature of the incidents and the low risk of recurrence.  The Tribunal were of the view that a 6 month admonishment would have been more suitable for such misconduct which was at the lower end of the scale of seriousness.   

RH v Ofsted 2011/1909/EY-SUS
30/08/2011 

An appeal was brought against the decision by Ofsted to impose conditions upon a children’s home operated by RH (the Home).  Ofsted had issued a notice to restrict the accommodation at the Home, which had the effect of a temporary closure of the Home.  The notice was issued pending completion of an investigation by the Police into an anonymous letter of denunciation received by the press and the NSPCC relating to allegations of long-term inappropriate behaviour by staff towards children at the Home. The appeal was dismissed as the Tribunal found that the notice had been issued appropriately and the conditions imposed could be justified as there are six firm allegations upon which a prosecution may be mounted.


Independant Safeguarding Authority

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