This has been a significant year for regulated social care and has seen a number of dynamic changes and changes, made in response to crisis, which will remain after this crisis is long past.
The crisis is, of course, the COVID-19 Pandemic. Registered Care has been affected very significantly but has risen to that unplanned challenge and reacted with commendable skill and innovation to respond to the risks to those very dependent service users in care. Politicians and civil servants, even now, are failing to understand exactly how dependent is the population of people receiving care.
The harsh reality is that the care sector has been left on its own to cope, particularly by the CQC who have demonstrably been more concerned to protect their media image and husband their own resources, rather than being a force for championing carers in unprecedented times of difficulty.
As with all operational issues, solutions lie in falling back on basic principles and remedies and applying them to an evolving situation. Services have always had to cope with risks from infections, just not at the same scale. Increasing dependency and the challenges arising from balancing control of access to services with human response to fear and tragedy have been ever present.
Enforcement at the beginning of lockdown the CQC in effect retired to its bunker and left providers to cope unsupported and largely unobserved. We saw this change as summer moved in autumn in two ways:
- Transitional Monitoring Approach:
CQC have used the pandemic as an excuse to trial changing its whole approach to inspection. Indeed the signs are that they have mind to phase out “inspection” and move to critical evaluation of provider’s relevant information (including gossip and malicious mischief) away from critical and objective evaluation. Providers will then be questioned online or by telephone on the basis of this low quality information. CQC will then decide (without published criteria) whether the same is of sufficient risk to justify an inspection. This is fraught with danger for providers. Beware! Moving from “inspecting for good” to only inspecting on an assumption of unacceptable performance, will stifle opportunities and motivation to improve, and, reinforce the media/public perception that CQC involvement with a service sends a message that there are problems. One small step apparently to conserve resources and protect inspection staff, may well become seen as the giant step to move away from the statutory framework (based on inspection) into a world where CQC make up their own methodology and then mark their own homework. Providers must take great care accurately to record all contacts with CQC, maybe even by telephone recording. CQC must be informed of the proposal to record contemporaneously but, if acting in good faith, why would they object? One doubts there will be any increase in enthusiasm to make conversation notes available.
This heralds quite a future change.
- Further use of section 31:
The process to improve, remove or change conditions of registration lies under S31 with CQC by way of executive order, albeit, with a fast track appeal. This includes the power effectively to close a service by removing a Location Condition. The justification for using S31 to cancel a location is questionable. It has no valid statutory basis. It is just tagged on to the power to manage Conditions by creating a Location Condition. Originally this was billed as a facilitating movement of services between established providers but has morphed into something more sinister.
No doubt on advice, the CQC usually give warning of their intention to use is power, and, seek a plan of action to remedy. Very, very short timescales are imposed – often less than 24 hours.
We have seen a very significant increase in the use of this extra statutory warning. Often this will be based on the poor standard information gleaned from the Transitional Monitoring Approach. The fast trial appeal is not a comfort, if the service is shut long before even the fast track can be implemented.
This is now clearly another extra statutory CQC policy. If this happens to your service, you MUST take legal advice instantly as CQC suggest.
DO NOT RECSUSCITATE
The CQC, somewhat late in the day, have been reviewing the extent to which Advance Decisions not to Resuscitate may be appropriate or prevalent. They have reported an increase in use but the increase is small. That surprises us as we have been widely consulted about this issue for some years. The CQC preliminary report reinforces the advice we have been giving.
Decisions not to Resuscitate should be person, time and situation specific. Those decisions should be taken by appropriate clinicians and never just on the basis of a piece of paper only on a resident file. Whether or not to resuscitate or even attempt that course of treatment can only be decided in specific person-centred circumstances. Usually such a decision will only be lawful:
- If it is the considered decision of a capacitous person or
- If it is decided after appropriate consultation, at the time, to be in the best interest of a person lacking capacity i.e. the risks and dangers of the attempt do not outweigh the potential/likely benefits.
Do not be bullied or coerced into such Advance Policies. Remember failing to take action which contributes to death may be seen as Manslaughter.
LIBERTY PROTECTION STANDARDS
The long awaited change of DOLs to LPS is going to have to wait longer. At least until April 2022 and there is to be further consultation in 2021.
The proposal that detention decisions should be made by Care Home Managers has been placed on the back burner but not entirely forgotten. We suspect it will quietly melt away. It was and is a bad idea.
For now there is no change to the Mental Capacity Act. The 5 Core Principles remain and best practice regulated by the CQC should continue.
HAPPY NEW YEAR
These were just a few of this eventful years latest developments. No doubt we shall all be busy with new challenges in 2021.
Already we are having to consider the impact of COVID vaccination and how that impacts on Care Home/Service operations. Watch out for this in an early Ridout Report in the New Year.
At Ridouts we wish you a relaxing and peaceful Christmas and a more hopeful New Year.