2020 Vision: What’s on the horizon for health and social care providers?

Topics covered: CQC, DoLS, Employment law, government, health and social care

It’s going to be a year of change and development in the health and social care sector. So what should providers look out for and how will these changes impact their businesses?

CQC report on restraint and segregation

In May 2019 CQC published its interim report on the review of restraint, seclusion and segregation across England.  Following on from that, CQC is now seeking stakeholder views on its final proposals on a better system of care for people at risk of segregation.  This initiative has been borne from CQC’s concerns about the human rights of people in segregation and their environments which came to light through its visits of people in segregation across England last year.  Stakeholders have been asked to submit responses by 30 January 2020 through CQC’s online provider engagement portal.  Providers who are impacted by the proposals should ensure they review and respond to the consultation to have their voices heard.

CQC is due to publish its final report detailing its view of what it has found about restrictive practices as a whole, including recommendations, in Spring 2020.  Providers should keep an eye out for the final report and ensure they reflect on CQC’s findings and recommendations.

Employment Law – the Mencap Appeal Decision – Royal Mencap Society v Tomlinson-Blake

In 2016 and 2017 the care sector was plunged into uncertainty regarding National Minimum Wage (NMW) payments for sleep-in workers following an Employment Tribunal decision (and subsequent Employment Appeal Tribunal decision) that effectively changed the thinking on payment practices.  Prior to the decision, both regulations and government advice stated that ‘sleep-in’ shifts did not count as ‘time-work’ for the purposes of NMW law as people were asleep and not working.  As had been the norm across the sector for years, care workers were usually paid a flat rate for sleep-in shifts that regularly fell below NMW rates.  The decision of the tribunal caused sector uncertainty and prompted HMRC to issue guidance to providers on potential liabilities for failure to pay staff the NMW in relation to sleep-in shifts.  Subsequently, the tribunal’s decision was overturned by the Court of Appeal in July 2018 which provided relief to care providers facing uncertainty over potentially significant liabilities.  However, last year it was announced that the Supreme Court would be hearing an appeal against the landmark ruling.

The Supreme Court is due to hear the case in early February 2020 and it has been indicated that the final decision is due to be published in July 2020.  The final decision will be eagerly awaited by care providers in urgent need of consistency and clarity on the laws governing sleep-in pay.

Code of Practice for Liberty Protection Safeguards

The passing of the Mental Capacity (Amendment) Act 2019, due to come into force later this year, heralds the end of the current Deprivation of Liberty Safeguards (DoLS) regime and introduces the new Liberty Protection Safeguards (LPS) intended to better protect people who may be deprived of their liberty but lack the capacity to consent to such deprivation.  However, the Act doesn’t provide specifics as to how the new LPS will work in practice and the government is required to produce a Code of Practice (CoP) alongside additional Regulations before the Act can come into force.

The latest soundings from the Government indicate that a draft version of the much anticipated CoP is due to be released for public consultation in Spring 2020, in advance of the Act coming into force in October 2020.  The details the CoP contain will be very important and providers should take the time to review and respond to the consultation document to ensure their views are heard.  Currently, there is no statutory definition of deprivation of liberty within the Act and guidance on this will be set out in the new CoP.  Possibly of most interest to residential care providers will be additional details regarding the ‘responsible body’ (the agency charged with authorising the arrangements that give rise to a deprivation of liberty).  In particular, the power for the responsible body to decide whether it should carry out relevant reviews and renewals of LPS’s or if this should be led by the care home manager.  There was much debate about the appropriateness of increased responsibilities being placed on care home managers during the drafting of the Act and providers will want to ensure that the CoP addresses this appropriately to ensure both their residents and staff are properly protected under the new law.

Competition and Markets Authority (CMA)

In November 2018 the CMA issued guidance for health and social care providers with service users aged 65 year and over on how to comply with their obligations under consumer law.  The guidance followed a wide-ranging market investigation into the care home sector which identified concerns, particularly in relation to residents’ agreements and fees being charged for older people.  Since this time, the CMA has taken action against a number of care providers in relation to failures to comply with relevant obligations.  The CMA are due to review compliance with the new guidance over the next few months which could lead to further enforcement activity.  Providers should ensure they are reviewing existing service user agreements to ensure they do not fall foul of consumer law and keep an eye out for developments in case law that may impact how future contracts are entered into.

Targeted Inspections for Residential ASC providers

In late 2019 CQC sought stakeholder opinion in relation to the introduction of a third type of inspection, the ‘targeted’ inspection.  The targeted inspection would be a narrow, unannounced inspection targeted to ensure a service has met a Warning Notice or to check that specific concerns raised with CQC were being dealt with and that people are not at risk.  Given the targeted nature of the inspection, this would not review a whole key question and would only look at specific, relevant Key Lines of Enquiry (KLOE) within a key question.  CQC would then publish its updated findings on the provider profile of its website to assure the public the service is safe and improving (if that is what is found).  Importantly, these inspections would not result in any change to a services ratings.  ‘Targeted’ inspections have been proposed in response to ASC providers raising concerns that the current CQC inspection methodology is too wide-ranging to quickly follow up identified risks.  CQC is currently piloting the process, particularly in respect of providers who have received a Warning Notice.  It is unclear exactly when the pilot process will be concluded and when any definitive response or guidance will be published, but it is likely we will be hearing more about this throughout 2020.

CQC Duty of Candour Guidance

CQC is in the process of updating its published guidance on compliance with Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 – the Duty of Candour.

The statutory Duty of Candour was first introduced through regulations that came into force in April 2015 and relates to registered providers duty to be open, transparent and candid with patients and service users about relevant safety incidents.  Regulation 20 states that registered providers have to make sure they act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.  As soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred the registered provider must:

  1. Notify the relevant person that the incident has occurred in accordance with the Regulation, and
  2. Provide reasonable support to the relevant person in relation to the incident.

The notification must be given in person, provide an account of all the facts the registered person knows about the incident, advise the relevant person what further enquiries into the incident are believed to be appropriate, include an apology and be recorded in a written record which is kept securely by the registered person.

The current guidance, published in March 2015, sets out further details about what CQC expects to see in assessing compliance with the statutory duty and this can be found on CQC’s website.  Given the time that has passed since the Regulations came into force, it makes sense for CQC to review the effectiveness of the guidance and assess how this can be improved to help providers ensure they are complying with their statutory duty.  CQC sought stakeholder views on what they would like to see included in the updated guidance and areas of focus late last year and the consultation period closed on 6 January 2020.  We now await CQC’s final updated guidance later this year.

Ridouts will be providing further comment on each of the matters discussed above as and when developments occur.  If you wish to discuss any matters with a member of our team, please feel free to contact us on 02073170340.

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