By Debbie le Quesne

Posts Tagged ‘CQC

Duty of candour – exploring the real cost of legalities

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Duty of candour – exploring the real cost of legalities

Like all computer users, the Google search engine is never far away from my fingertips, but I was amazed at the rash of links I found when I typed “CQC duty of candour.”

Page after page popped up – mostly because of some comprehensive work by the Commission search engine optimisation techy geeks. Clearly this is something CQC is going big about.

But these top of the pile listings were followed by law firm information articles, sinking in legal jargon and promoting their compliance services to avoid big trouble.

Some care observers branded the new regulation, introduced as ‘live’ at the start of the month, as “the rebirth of the CQC.” Indeed, the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 makes important changes to health and social care standards which now being regulated with fresh zeal.

They represent one of the main ways in which the Government is responding to the Francis Inquiry that recommended the enforcement of fundamental standards to prevent problems like those at Mid Staffordshire, Winterbourne View and elsewhere.

Lets get legal (promise I’ll be short): The new Fundamental Standards of Care replace the 2010 regulations and are a response to the Second Francis Report into events at Mid Staffordshire.

Whilst the 2014 regs cover, in broad terms, the same subject matter as those dealt with under the 2010 regulations, the ‘Standards’ are now much more focused, the language is more direct and they set out clearly the higher bars which all health and social care providers must adhere. This dovetails with the requirement in the newly- enacted Health and Social Care (Quality and Safety) Act 2015 which “will in the future require the Secretary of State to make any regulations considered necessary to secure that services cause no avoidable harm to those that use them.”

As part of that raft of change, the new duty of candour has been implemented. This provides that where a notifiable safety incident – basically those that cause harm –occurs within a service, there are certain notification requirements which must be followed.

Already emerging is confusion over the definition of ‘a notifiable safety incident’ and it’s critical all care workers are up to speed with this knowledge.

Under the Health and Social Care Act 2008 (Regulated Activities)(Amendments) Regulations 2015 the definition of ‘harm’ for independent sector health and social care providers is as follows:

  • Death of the service user, where the death relates directly to the incident rather than to the natural course of the service user’s illness or underlying condition;
  • An impairment of the sensory, motor or intellectual functions of the service user which has lasted or is likely to last, for a continuous period of more than 28 days;
  • Changes to the structure of the service user’s body;
  • Prolonged pain or prolonged psychological harm;
  • The shortening of the life expectancy of the service user;
  • The service user requires treatment by a healthcare professional to prevent death or any of the above injuries.

Already the lawyers must be rubbing their hands at the potential money-spinning services they can offer providers to ensure the procedural steps in satisfying the duty, and evidencing it to demonstrate compliance, are in place.

It’s early days, but the impact of this new legal duty already appears to be looming as an extra training cost for managers and their staff. Who could possibly afford the consequence of getting this wrong?

Checklist: Having defined the notifiable incident, care providers must:

  1. Notify, and support, the relevant person as soon as reasonably practicable after becoming aware of a notifiable safety incident
  2. Provide an account of the incident as known at the time
  3. Advise what further enquiries the provider will be taking
  4. Offer an apology
  5. Follow up the above in writing, and provide an update on the enquiries
  6. Keep a written record of all communications

Guess WMCA will be running courses soon, but I promise we will do all we can in out bi-monthly member’s meetings so that no extra cost of taking people away from the workplace will be incurred.

Rocketing Dols demand means timescales breached

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Deprivation of Liberty Safeguards (Dols) are rocketing to new highs with many still breaching legal timescales for completion.

A landmark Supreme Court ruling last March triggered a nine-fold rise in monthly referrals to councils, a Community Care online magazine investigation has found.

The ruling’s extension of human rights protections has been welcomed by social workers, but they warn more resources are urgently needed to help frontline teams cope with demand.

Under the Dols, local authorities must assess whether people who lack capacity to consent to their care arrangements are being deprived of their liberty in care homes or hospitals and, if so, whether this is in their best interests and necessary to protect them from harm.

The legal landmark was set with cases involving Chester west and Chester Council and Surrey County Council. The outcome was a revised test that has lowered the threshold for deprivation of liberty in care.

Six months on from the ‘Cheshire West’ judgment, a Community Care investigation, based on data obtained under the Freedom of Information Act from 103 local authorities in England and 19 councils and health boards in Wales, showed a massive impact it has had on the adult social care system.

Community Care notes: “In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.”

The investigation also found “that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs (business impact analysis) in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.”

Predictably, the chorus of complaint is one of more resources required. I know that the teams have had to divert much of their safeguarding resource to getting as many fulfilled in the times scales as they can. In some areas that means they are having to priotise.

However the Department of Health has not passed this message onto CQC who feel that it is there duty to punish Care Homes very severely if they have not put everyone through for a DoLS that they can. We talked to the DOH when we saw them in January and asked them to help CQC understand the problem.

It seems it is understandable for local authorities to fall behind with their timescales but not care homes!

Care chief takes W. Mids care woes to London

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As the West Midlands Care Association Chief Executive I have a duty to take every opportunity to represent my members in places that can influence their care business.

Talks with the Department of Health over the financial restrictions that are currently strangling the industry proved no exception.

Representing both my members and those of the Care Alliance in which I holds a co-chair role with Erica Lockhart from Surrey Care Association, I spelt out how financial pegging threatened future provision in the private sector.

Meeting in Westminster with Paul Richardson, head of Quality and Safety, and Karen Dooley, Policy Lead for Adult and Social Care, under the Alliance banner I was keen to explain to the movers and shakers what is happening at grass-roots level across the country.

But I also took the opportunity to inform these senior staff what is happening in the West Midlands.

We spoke about the problems for our learning disability providers who have not had cost of living increases for over four years, despite huge rises in overheads.

The main outgoing for them is wages and the minimum wage has gone up at lease four times in as many years.

We also discussed the difficulties of running care businesses in areas where the local authorities don’t pay the full cost of care.

Also on the agenda were the implication of the new inspection regime and the number of failing homes and why they are in trouble.

I questioned whether the right areas of the care sector are being examined and sought policy pointers from government on how it thinks failing homes can recover.

Watch this space . . I’m sure more will follow.

CQC new regime: The good, the bad and the ugly

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First the good news: The Care Quality Commission has found “many examples of good and outstanding care” using their new inspection criteria.

And now the bad: As the expert-led inspection model rolls out the regulator is discovering wide and “unacceptable” variations in quality.

The tougher approach also discovered that there are not just big differences in the quality of care that people experience from different providers, in different places but also sometimes at different times of the day or day of the week.

The five-question approach – are they safe, are they effective, are they caring, are they responsive to people’s needs and are they well led? – is bound to bring change to existing ratings and perhaps the findings with a sample of NHS trusts will be mirrored in our care and nursing homes.

In an article on the CQC website, the regulatory body says: “We began applying our new inspection approach to NHS trusts in September 2013. We’ve seen some outstanding care – but we’ve also seen examples of care that requires improvement or that’s inadequate. We have found differences in quality from one trust to another, from hospital to hospital within trusts, and between different services within hospitals.”

Some 38 NHS acute trusts were checked by the end of August 2014; nine achieved an overall rating of good, 24 were rated requires improvement and five trusts were rated inadequate.

Stating the obvious, CQC says good leadership drives up quality and safety overall.

But as CQC “calls time” on unacceptable variation in the quality of care and higher the bar for providers, my fear that you get what you pay for remains.

Indeed, I cannot think of a single WMCA member who does not want excellence in their service, but how, tell me how, are we supposed to achieve such glorious goals when there’s such a tight hold on local authority purse strings for bed purchases?

I applaud the sentiment of the Commission to empower consumers to use CQC’s inspection reports and ratings to make decisions on care choice. I also believe in their advice that “providers of poor care need to look at those who are doing it well and learn from them.”

Quality, however, always has a cost – an ugly word, I know – and I’m let pondering once again where the finance will come from to meet the new CQC inspection challenges

King’s Fund sound alarm over shortfall in care funding

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Budget cuts of 26 percent will threaten the sustainability of social care the Association of Directors of Adult Social Service warned.

As I have previously blogged the organisation said the results of the annual budget survey show that while spending on adult services has reduced by 12 per cent since 2010, the amount of people needing support has increased by 14 per cent.

Put simply, the figures don’t stack up and councils have had to make savings equivalent to £3.53bn. David Pearson, president of ADASS, was quoted in The Guardian as saying: “As resources reduce and need increases, directors are increasingly concerned about the impact on countless vulnerable people who will fail to receive, or not be able to afford, the social care services they need and deserve.”

The warning has drawn comments from Richard Humphries, assistant director of policy at the King’s Fund: Again quoted in the Guardian online, he says: “This survey once again highlights the enormous pressure on social care budgets.

“Despite the best efforts of local authorities, this will result in further cuts to services and fewer people receiving support.

“Worryingly, half the money being transferred from the NHS budget to support better joint working between health and social care is now being spent on protecting social care services from budget cuts, rather than driving integrated care and other service changes needed to better meet the needs of patients and service-users.”

I would dearly like to bring some positive, creative solution to this ongoing debate, but frankly like so many in the care sector, my day of making savings through working smarter is nearly through. Everyone I know has cut, restructured, re-invented and re-thought the way they work to deliver more efficient care. There has to come an end – it’s an inevitable economic principle – when the wheels will finally drop off social care machine.

The King’s Fund embraces some of the finest minds in the country and the government would do well to heed the alarms.

The only real lifeline we have is the new Care Act and the Better Care Fund that focus resources to help manage their own care and hopefully save billions. Critically, however, we need monies to roll out the new working methodology – cash, it appears that is already spent on “protecting social care services from budget cuts.”

Experts show the way forward over wall of silence on references

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Left: Jenny Jones, barrister with Harrison Clark Rikerbys Solicitors, addresses the workshop

Right: CQC manager Jane Rumble explains what to expect with future inspections

West Midlands Care Association has hosted a successful workshop looking at the thorny issues of employment law and its interaction with CQC compliance demands.

Staged at the Portway Lifestyle Centre, Sandwell, employment law barrister Jenny Jones of Harrison Clark Rikerbys Solicitors shared the podium with Care Quality Commission manager Jane Rumble, who outlined clearly the emerging compliance issues.

In tackling the issue of care worker references which employers are often reticent to offer, both speakers agreed that new ideas needed to be developed so that those offering observations on workers did not feel legally compromised.

We had a very focused session and achieved a lot in a short time– that’s great news for the care sector!

The workshop has resulted in the Association now working with both parties to offer guidelines and support mechanisms to its members on what can be included in these essential references.

With help of both speakers four ways were agreed to tackle the problem:

  • Care providers should take all practical steps to get current references, including sending forms and follow-up phone calls. Each action should be and applicant requested to make a self-declaration. Once completed, providers can employ someone with other references and evidence.
  • The Association will work to get members to support fellow members in supplying necessary references.
  • The Association will work alongside Harrison Clark Rickerbys to create a reference form, which will give guidance about what care providers can safely say.
  • And together we’ll do our best to ensureg care providers understand that a ‘well led’ organisation would indeed give valuable information to fellow care providers to ensure good carers remain in the industry and bad one leave.

It was pointed out from the floor: “Everyone is scared to give references in case they get taken to tribunal and there are a huge number of requests in this industry.

“This means that people have to remain on the dole and providers have to manage with less staff by getting people to do more hours, or agency staff are used, who are very expensive and do not know the residents or clients.”

In a PowerPoint presentation, Jane gave a comprehensive overview of what care providers can expect from CQC over the next two years and how its strategy aims to rebuild public confidence in the sector.

I spend quite a lot of my time in conferences and workshops and this was simply one of the best meeting of minds I have seen for a while. I’m only sorry that some WMCA members were unable to attend – such was the demand.


Worcestershire CCG quality monitoring initiative under fire

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A web-based self-assessment system aimed at helping 58 private sector nursing homes across Worcestershire meet ever-increasing legal compliance standards has been branded “hard work and time consuming.”

Residential nursing providers already using the tool in neighbouring Warwickshire and Coventry have claimed it is a “struggle to use.”

And now it’s been rolled out in Worcestershire fears have been raised that data entered online may be used for punitive measures if it shows homes are not meeting the quality assurance mark demanded by clinical commissioning groups.

The package – known as Care Homes Dashboard – has been developed by NHS Arden Commissioning Support in partnership with Wyre Forest Clinical Commissioning Group (CCG), Redditch and Bromsgrove CCG and South Worcestershire CCG, to “monitor, manage and improve standards of care.”

But so far it has failed to win universal support in pilot areas.

Criticism has also come from the regional Care Association for Worcester with many managers and owners feeling it’s yet another hurdle that the industry would have to jump for no additional rewards.

Some of the homes in Warwickshire and Coventry have been using the Dashboard tool and frankly, have found it to be hard work.

In a blame culture, homes are concerned, that despite the CCG saying it would not use the data for punitive methods, it wouldn’t be the case

I’m concerned too that my members are already swamped with Care Quality Commission ‘must-do’ tasks, and while I appreciate the Dashboard is aimed at being proactive, it’s yet another tier of data management that managers and owners are expected to fit in to their already overcrowded work schedules.

Sadly, although West Midlands Care Association represented a huge swathe of providers, it had not been involved with the development of the Dashboard.

The Dashboard claims to provide assurance on a range of local and national clinical key performance indicators, such as infection control, falls, pressure ulcers and hospital admissions.  It also includes a confidential ‘Serious Incidents’ and a ‘Never Events’ reporting portal, where providers can alert a local patient safety team of an incident in their home.

My Worcester colleagues sum it up admirable: More work – no extra pay.

CQC penalty notices and why we should have a measured response

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The Care Quality Commission has this year been busy issuing penalty notices over breaches in conditions of registration.

Most services have to have a registered manager as ‘part of the deal’ in being operationally compliant.

And sometimes there is good, compelling evidence why sometimes care businesses are without a registered boss.

Often, as staff move onwards and upwards, the vacancies are hard to plug. Getting the right person on deck is paramount to both the smooth running and general ambience of the service – but it all takes time

There’s some great advice in the latest edition of the Brunswicks’ Care Review, a great source of legal updates and mostly presented in a way all of us can understand.

It appears that editor Keith Lewin has had a bulging postbag relating to the penalties issue and he offers some wise words in response.

Firstly, “a penalty notice can only be applied with a care provider’s agreement.”

He advises that those with recruiting issues should be “slow to accept” them. In such circumstances and providing there is good documented evidence, a penalty notice is not an appropriate response.

He also goes on to explain the industry-wide and direct consequences of acceptance.

I quote: “There are consequences for individual care providers of meek acceptance; first, there is the beginning of a record of non-compliance which CQC will undoubtedly refer to in more formal penalty situations, for example, when before a court or tribunal.

“That said, there is a more wide-spread consequence for all care providers when many accept the penalty. It is this – that the regulator becomes convinced that in order to drive change in the sector, first change the rules, then tell people about those changes, provide a period of grace for people to become compliant, at the end of which give inspectors the stick of issuing penalty notices to send a message to all care providers by making an example of the few.”

What concerns me deeply is that the ‘stick’ approach, he says, is “expected to be deployed more in future.”

His reasoning is to be found in the CQCs board of management papers for its meeting last week.

Let me quote some more: “Andrea Sutcliffe, Chief Inspector of Adult Social Care and Corporate Lead for Registration, reported that there was a 57% increase in the number of new registered managers in 2,439 care services which CQC targeted in a six-month period which ended in April.

“I therefore suspect that CQC management will use that statistic to drive through change in the sector at a time when care fee payments from the majority of commissioners of care, local authorities, are still exercising considerable downward pressure on care fees.

“Therefore, for the future, I expect that in matters of provider delinquency CQC will take a much less tolerant approach and that similarly, it can be expected to issue penalty notices.”

Make sure your paperwork is in order! Enjoy the weekend.

So who is paying for such great political promises?

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Have you noticed how political the care industry arena has become as elections loom on the horizon?

Of course, we believe all the promises, I don’t think! But it’s interesting that all the real parties have care high on their agendas.

I’ve just read that a Labour government would “call time on clock-watch care” by putting an end to visits that last just 15 minutes.

The pledge is care of Mr Milliband.

Let me quote The Guardian online: “The Labour leader will highlight findings in a report, commissioned by the party, which found that elderly people in nearly two-thirds of areas surveyed in England are visited for no more than 15 minutes and that many care workers are not paid if they choose to extend a visit. Between 150,000 and 220,000 care workers receive less than the minimum wage often because they are not paid as they travel between appointments.”

Whatever political party steers this country in the future, it will have one heck of a job soring out social care. How on earth have we arrived at a point where care has been devalued so much. –150,000 to 220,000 getting less than the minimum wage. It’s a scandal if not only for the fact that society has become so jaundiced by bad care headlines it expects poor pay rates for perceived poor carers. If I could, I’d negotiate a king’s ransom for these salt-of-the-earth gems.

The bottom line when all the political leaders have had their say, the industry needs a massive influx of money. Promises can win elections, but they don’t fund care.

Mr Miliband is pushing a report by Lady Kingsmill which shows short visits and the treatment of care workers has “reduced the quality of care for millions of elderly, vulnerable and disabled people.” Indeed, short calls obviously reduce care, but I must point out that there are a growing number of ‘domcare’ providers who will not agree to 15-minute contracts. In fact some are operating with hour calls only.

One thing that I have picked up on is Mr Milliband’s interest in how carers are treated. He appears keen to stop their exploitation and is supporting a Kingsmill’s recommendations for a new care charter to be developed by the Care Quality Commission (CQC) to raise standards. Effectively it would end time-limited visits and introduce an inspection regime.

Let me quote a little more from the article: “The CQC would also get new powers to tackle the exploitation of care workers whose treatment has an impact on the people they care for. It would have a duty to refer cases where it believes minimum wage laws have been breached to HM Revenue & Customs.”

I really would expect Labour to go in hard with care as a central pillar to their campaign, but in fairness all the blame for the care funding chaos can’t be laid at the door of the coalition. What was Mr Blair doing about this problem during his tenure?

The local authorities with which I work are under ridiculous budget pressure. My question to Mr Milliband is where is the money coming from to sustain your promises?

Panorama: It’s a hearts and minds battle to up the game

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Andrea Sutcliffe, chief inspector of adult social care at the Care Quality Commission has waded into the Panorama debate for a second time.

Writing in the Guardian, she joins a growing chorus of voices airing their views about the terrible scenes that were beamed into our livingrooms in the ‘Behind Closed Doors: Elderly Care Exposed’ broadcast.

She writes a lot of words, but not least that the new powers in the Care Bill will afford her inspectors stronger legal powers to “take additional action.”

And she adds: “You have a chance to have your say about what we do, as we are consulting on our new approach – so please do.”

Sadly, few do have their say – bogged down in care toil, or just can’t be bothered. Quite how to break the inertia of lethargy in responding I don’t know, but I must encourage at least all of my members to contribute some comment as the new inspection models are rolled out.

Undoubtedly the Panorama programme has sparked a deal of comment from service providers, staunchly defending the good care that so many carers give. I too have added my letter of support for the thousands of unsung heroes and heroines who help on a daily basis to reform care – something that the government seems happy to decant to the private sector.

Ahead of the programme the Commission issued a statement and Ms Sutcliffe was interviewed on radio and TV. In her own Guardian piece she recalls that after the broadcast she tweeted that “no one should experience such awful care. Staff, owners, commissioners, CQC, government, society we all have a responsibility to sort.”

Indeed, we all do have a responsibility to make a difference. To do nothing is cowardice, but safe. To have a voice, backbone and conviction is what’s needed with carers and their managers.

Let me quote Ms Sutcliffe: “Every day I know our work makes a difference. An inspector shared her experience with me yesterday about a recent inspection where last year we had served a warning notice and identified necessary compliance actions for poor staffing practice.

“She told me: ‘This service has turned around and I was so pleased to find everything in place and people being treated very well. Everyone sang the praises of the service. The manager has worked hard to make this happen and it has reminded me why we do this.’

“We are not the only solution, but we are definitely part of the solution.”

And there’s the rub . . . part of the solution. CQC – love them or hate them – are the people we need to work alongside to up our game. But compliance is not an in in itself. In the Gulf conflict a new sound bite was aired: “It’s a battle of hearts and minds,” said the captains and generals.

That unfathomable, mysterious ingredient that captures our thinking and inspires vision needs to be in liberal quantities among care managers and their staff.

Strong leadership also needs to be inspirational. The new inspections promise to be rigorous and robust. They will be person-centred and “alert to warning signs.”

Undoubtedly, the Panorama report has shaken public confidence in an already-embattled care sector. With other care association leaders and industry ‘movers and shakers’ it’s my duty to try to improve public perceptions.

Part of that process is to try to increase fees paid to providers by local authorities; to deliver relevant and equipping training models; to support care businesses; to promote the real value of our carers; but none of these things in themselves will win the fight.

As I said . . . upping the game really is a battle that is initially won in hearts and minds. Be empowered, be inspired – let’s show the British public another way of caring where excellence is the default setting.