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LEGAL VIEW: Why the fairy-tale ending will have to wait for social care

Jenny Ridouts

In the first of a new regular column with CHP, Jenny Wilde, Director, Solicitor of Ridouts Professional Services Plc, offers advice to care providers in the COVID environment.

It has been an unforgettable few months for all of us. The profile of our world has changed forever and we have quickly adapted to connecting and working in ways that we never have before. For the majority, we have been lucky. We have been able to carry on with some semblance of normality with a few technological tweaks here and there. Our respective sectors are unlikely to change in the long-term and if they do, it will be in the interests of efficiency through what we have learned.

But what of our health and social care sector? Panic, fear and unrelenting work have been the order of the day for almost six months now. Whilst the NHS has capably handled the primary care of thousands of patients, absorbing cheers and applause every Thursday night, its social care sister tells a very different story –in which it features in the role of Cinderella – yet again.

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So after a tidal wave of rapidly changing guidance, difficult conversations with families about lockdown, high percentages of staff sick or in isolation, pressure to admit service users with positive or no test results and a staggering 900% (on average) increase in the cost of regular PPE – the social care sector is drained both physically and financially. The deaths of existing service users and the public’s lack of appetite for placing loved ones in care services right now (thanks to a constant stream of negative press on escalating numbers of infections in some services) means that the sector is struggling.

So now that the peak of the infection has passed, we would have hoped that the social care sector could be afforded some time to breathe, regroup and plan for the future. But this might not be the case. Many providers are now facing new problems.

Complaints

Firstly, numbers of providers have seen an increase in complaints from family members about the way that the COVID crisis was handled, the fact that access to family members was restricted and in some cases, blame over the passing of their loved one. Providers have a regulatory duty to respond to any complaint.

We have been advising our clients and other providers participating in our weekly surgeries to document every decision made during the pandemic. Risk assessments, staff meetings, handovers and discussions with family members should be clearly and comprehensively recorded. Such documents will be of significant value.

The way that some providers operated during the pandemic may leave them open to challenge from family members in terms of a contractual claim or potential health and safety prosecution. If you receive a complaint that implies that further action could be taken against you as a provider organisation, or you simply see that the issue could be problematic, we would strongly suggest you consult your insurer and legal advisor before responding formally as any response that is provided is likely to be used in any such claim or case.

Inquests

In some cases where service users or even staff members have passed away and COVID-19 is cited as a cause of death on their death certificate, a social care provider may be made, or request to be, an interested party in any inquest relating to that death. This may require a contribution to the hearing which looks into how and why a person has died and it may be that the coroner concludes that some action taken (or indeed, not taken) by the provider had a role to play in that death.  Again, this could lead to further action from family members after the inquest and could also trigger regulatory action if it transpires that a policy or procedure was not effective.

Future regulation

As health and social care providers will know, normal inspections were suspended by the CQC towards the start of the pandemic and a new “Emergency Support Framework” (ESF) put into place to monitor services that were most “at risk”. CQC has now stated its desire to resume physical site visits and transition into some level of normal regulation but, it has also indicated that the limitations of the pandemic has inspired it to think more seriously about “smarter regulation”.

In her article dated 1 July 2020, my colleague Maddi Gaunt reflected on what this would mean for providers as the CQC consults on how registrants might feel about a more “intelligence-led” approach. My view is that this is a dangerous new dawn. We are all au fait with the pitfalls in our current system related to subjectivity of inspectors, misinterpretation of documentary evidence and basic personality clashes but how will this be better? Who controls what data is considered and by whom? How will care be observed? Can a desktop inspection really trump the experience of witnessing happy and well cared for service users first hand? There will be arguments both for and against such a system, but the truth is that we don’t know how it will look or how it could help or indeed hinder a provider until it happens. The pandemic has provided a convenient platform for this type of regulation, an aim that has been on the CQC’s agenda since 2018 and would have obvious cost saving benefits for the regulator but no clear advantages for providers or service users.

One thing that is causing some providers sleepless nights is how the CQC will approach their services in terms of general attitude. Whilst maintaining compliance is obviously vital, the sector has been through an emergency scenario where immediate care and infection control has been prioritised. Will inspections take this into account? How much empathy will the CQC show for what social care services have been through? Are we about to see services, already struggling, being plummeted into “Inadequate” and being deprived of already scant admissions? This is the start of a perfect storm.

If your service is having difficulty with any of the issues raised in this article, please call Ridouts on 0207 317 0343 or email info@ridout-law.com,  or visit www.ridout-law.com

Tags : complaintsCQCInquestsLegal AdviceRegulation
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The author Lee Peart

1 Comment

  1. AS a nurse educator and relative, I think it is imperative for the CQC to increase visits to care homes taking all necessary safety precautions. Relatives not being allowed to visit means a layer of protection, care and advocacy is removed. I picked up many things that staff had not picked up on. An example I will use, my mother showed signs of dehydration. I pointed this out to the staff and made sure she had drinks. I found out that she had been in her small room, poorly ventilated room (window only opens 2.5 cms) all weekend during the heat wave in June 2019 when warnings were given out across the country. The outside temperature was 34 degrees and 38 degrees in her room! She couldn’t be sufficiently hydrated because she was asleep probably because of heat stress and having, Lewy Body Dementia. Many COVID positive residents in care homes in Italy died of dehydration not respiratory distress and 20% of residents in UK are dehydrated. CQC has an invaluable role in drawing attention to such ‘seemingly’ obvious and life threatening situations. The recognition of second class care for the most vulnerable with late stage dementia could easily plummet further to third class care without direct on site observation. COVID is not the only ‘killer’ in care homes.

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