Care home operators are being asked to spend more time in court than ever before as a higher percentage of deaths are sent for inquest by coroners. The inquests are also lasting longer, even when there is little evidence to suggest anything other than natural causes were responsible, says RadcliffesLeBrasseur’s Health Group team in conversation with Care Home Professional.
RadcliffesLeBrasseur describes itself as the UK’s leading law firm for the care homes sector. Its lawyers act for many of the largest care home groups as well as smaller providers.
Unlike a typical high street law firm, RLB is experienced in advising on specialist issues within the care homes sector including inquests, regulation, safeguarding investigations, mental capacity, commissioning and fee disputes. It will also take on the issues that all businesses face such as employment, corporate, commercial and property law.
Andrew Parsons (pictured above), a partner with RLB, head of healthcare practice development and a member of the company’s Health Group, says care homes have never been under more financial pressure, not least from an upturn in the number and scale of legal disputes they face.
As a firm that has acted on behalf of care homes across the country, RLB knows that litigation is on the rise from a number of different directions, and that operators need to be prepared to defend themselves.
“One thing that has changed considerably in the 30 years I have been operating in this sector is inquests. When I first started doing inquests, it was very unusual for them to last for more than a day. Now it is rare that they will be completed in a day. The main reason for that is the Human Rights Act. This has meant that coroners, but also families, hold a full investigation if there has potentially been a breach of Article 2 of the Human Rights Act – the right to life – that needs to be investigated,” he describes in conversation with Care Home Professional.
“Inquests seem to last longer and longer. We did one recently that went on for a week. It had heard all the evidence, it had virtually finished and, just before the conclusion the coroner said: ‘I think I have misdirected myself, I should have heard this with a jury, so we are going to adjourn and start it all again later in the year, taking another week’,” Mr Parsons recalls.
He is not suggesting that the investigation that led up to that inquest was flawed, or that the coroner was making an improper legal judgement. What he is pointing out is that a death that might previously have warranted no more than a simple post mortem had turned into a case lasting over a year and racking up fees for at least two weeks of legal representation in court. “That is mighty expensive,” Mr Parsons says.
Statistics are hard to come by when it comes to the exact nature of inquests and coroners cases. Mr Parsons does not believe anybody stores details on how many deaths in care homes are investigated and subsequently go to an inquest, but he is convinced that the number of courtroom inquests have been rising steeply, and that they last longer than ever, leading to dramatically rising legal costs for care home operators – either directly or via their insurance premiums.
Not every death in a care home is investigated, and those that are investigated don’t always lead to an inquest. Even if there is an inquest, it does not automatically follow that a care home operator will be sued. “It doesn’t follow that an inquest will always lead to an operator being sued, or to there always being liability and a claim. The point is that, if somebody has a concern, then it has to be investigated.”
Jonny Landau, another partner at RadcliffesLeBrasseur and member of the firm’s Healthcare Practice, explains that regulatory changes are driving up the number of investigations. “There is now a duty for coroners to issue a report if something has arisen during an inquest that leads them to think that there could be a risk of future deaths in other cases. This is now mandatory, which increases the risk for operators,” he says.
RLB’s advice is for care home operators to check their insurance and, if they do face an investigation, to get advice early from a specialist law firm. “Some insurance companies cover the cost of inquests, some don’t. It isn’t mandatory. Insurance companies know that we have expertise with inquests in relation to care homes and should recommend using solicitors that have specialist knowledge and experience in this area,” Mr Parsons advises.
Another other type of dispute that is costing care home operators more and more money is the issue of CQC inspections. The new style of inspections that began in 2014 has led to a steadily rising volume of legal challenges to CQC reports. “My perception is that, since Mid Staffs, CQC are more active,” says Mr Parsons.
Again, the evidence is anecdotal rather than empirical, but Mr Parsons is convinced that challenges to CQC reports are on the rise. “It is difficult to know because you would have to study the statistics, but there are certainly plenty of cases where either the totality of the report or the rating is something that somebody wants to challenge,” he says.
The stakes are high. An unannounced two day inspection by CQC can lead to an Inadequate rating that might trigger an embargo on a home. That might mean local authorities refusing to place new residents, the operator itself deciding to limit admissions, or even the closure of a home. Embargos are expensive. Most operators will limit admissions, which affects revenue, while improvements to staff and the environment take time and money. Care UK estimates that homes under embargo can cost between half a million and one million pounds to turn around.
No wonder then that, if a care home believes its rating is incorrect, they will be motivated to see it put right. “You are seeing more challenges in relation to CQC reports and enforcement action. This might include a notice of proposal to either close the home or to prohibit admissions. It is obvious that the provider is going to want to fight that, and I have seen many, many more of those in the last few years,” Mr Parsons observes.
RLB’s experience is important when reaching a decision over whether to fight or call in the SWAT team to fix the problem. “On occasion, the embargo is correct, and there is not much that can be done about it if there is a major concern. On occasion, my perception is that the local authority has got it wrong. They either have no power to impose an embargo, or the presenting situation does not justify it,” he explains.
The ongoing media obsession with exposing failures in care homes, especially since the Winterbourne View scandal, has made commissioners ultra-cautious and more likely to pull the trigger on an embargo, Mr Parsons hints.
RLB would not advise a legal challenge unless the commissioners or CQC have just got their position wrong. “If there are legitimate concerns, the answer is to make sure those issues are addressed. You need to seek advice and act on advice on how to address the issues, how best to follow that up and embed it; and then relay that to the commissioners and the CQC to make sure that they are aware of what has been done to solve the issue,” Mr Parsons advises.
Even worse than a bad CQC rating is a newspaper splashing with a headline accusing a care home of neglect or abuse of residents. These accusations have certainly increased in the past 10 years, Mr Parsons says. “There do seem to be many more prosecutions. It is an area that police are far more willing to investigate. Neglect and abuse has been an offence in the Mental Health Act since 1983, but the number of cases based on that act was very small. Protection was extended by the Mental Capacity Act in 2005 to cover those who lack capacity, and it has now been further extended to providers and those with capacity.”
Mr Parsons believes too many neglect or abuse cases are being considered because authorities do not fully understand the nature of caring for people with extremely complicated physical and mental health problems. “Lots of things are caught within the current definition of abuse, which I have always thought is quite a potent word, and it depends on your perspective as to whether you think something is abuse or not,” he suggests.
“That isn’t for one minute to seek to defend poor care. I often think that these things are triggered by people that do not have experience in the clinical side. The police are obviously not medically trained either, and their investigations can be very slow,” he adds.
More investigations are inevitable following a change in the law that compels local authorities to investigate any allegations of abuse. The process, know as safeguarding investigations, is designed to ensure that lessons are learned from any reported problems. These safeguarding investigations can be triggered by something like missing a person’s medication. “One missed medication can turn into a big safeguarding investigation with lots of different authorities: police, commissioners, the health authority, the provider. That can use a lot of resources and also create quite an adversarial situation rather than a collaborative one,” warns Mr Landau. “That is a big drain on providers and a big risk factor,” he adds.
There is a growing trend for people to trigger investigations and challenges – whether a problem is identified by a relative, an inspector or a coroner. The advice from RLB is to seek advice from a specialist as early as possible. The more expertise and experience a law firm has, the less time it will take to get the right advice, which should save operators money in the long run.