In this third installment of my four-part series on consumer law obligations, and their relevance to health and social care providers, I will be discussing what terms are implied into care contracts in relation to the quality of care provided.
This will largely focus on adult social care providers, and in particular care homes and their obligations in respect of privately funded service users.
The Implied Term
All providers have an obligation under consumer law to ensure that the services they provide are performed with reasonable care and skill.
This is an implied term under section 49(1) of the Consumer Rights Act 2015.
What this means is that even if you don’t have any wording or specific terms in your care contracts that indicate what quality of care service users can expect, the law will imply the basic minimum level.
This also means that providers are not allowed to draft terms into contracts which would attempt to exclude or limit their liability in respect of this obligation. As discussed in my second article, if a contract term attempts to exclude or restrict liability in respect of meeting these standards is likely to be considered unfair, which will also entitle the service user to compensation.
The Scope & Regulatory Overlap
According to statute, every service user can expect that care is provided with reasonable care and skill. The guidance notes for the legislation state that this expectation is about how the service is carried out and not the end result. Thus, the focus is on how the provider meets the needs of their service users, and not the outcomes for these service users.
Reasonable care and skill is not something that has been expressly defined by statute. However, legislation guidance notes state this is to allow for flexibility between sectors and industries and their different standards. The notes also indicate that industry standards and/or codes of practice will be relevant in determining whether a person has met the standard of reasonable care and skill.
For care providers, this would mean understanding their obligations under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulations”). Other helpful indicators would be best practice guidelines (i.e. NICE, GMT, NMC, etc.), regulator issued guidance (i.e. CQC or Ofsted), and relevant government guidance.
Whilst the Competition and Markets Authority (“CMA”) Guidance for UK Care Home Providers indicates that regulatory requirements are only one element of a provider’s obligation to provide care with reasonable care and skill, it has not really elaborated on what additional obligations consumer law might impose on providers in respect of the obligation to provide quality care. Therefore, for the purposes of this article, providers can expect that compliance with the Regulations will generally mean they are also complaint with contractual obligations under consumer law.
Impact on Providers
Whether or not a provider is in breach of this obligation will be determined on the facts of each case, as this will be nuanced for each service user. If a provider fails to provide care with reasonable care and skill, the service user may be entitled to seek compensation for breach of contract.
Sector regulators, such as the Care Quality Commission (“CQC”), are ultimately responsible for ensuring that regulatory requirements are met.
Providers will be all too familiar with the CQC inspection process and the regulatory enforcement action that can follow. It would also appear that there is the potential for consumer law consequences in respect of poor ratings following an inspection, allegations of regulatory breach and other regulatory enforcement action taken against providers. This is because the CMA views the Regulations as an indication of the level of care and skill that is considered reasonable in that sector or industry. As inspection ratings and regulatory enforcement action are directly linked with perceived compliance with the Regulations, the CMA will also consider compliance with the Regulations when considering whether or not a provider is meeting their obligations under consumer law.
Breaches of some Regulations can also amount to a criminal offence. Therefore, on top of any regulatory enforcement action that a provider is facing, a provider may also be subject to a breach of contract claim and have to compensate the service user affected.
This can be very costly for providers and will usually have a highly negative impact on their business viability.
Therefore, providers should be minded to keep abreast of sector best practice, regulatory obligations, and government guidance updates where necessary.
In summary, it would appear that, not only, is regulatory compliance mandated in statute, but it is also implied into care contracts.
None of the above is to suggest that all providers will automatically be subject to breach of contract claims where they are alleged to be in breach of a regulation or are facing some type of enforcement action raised by the CQC. It is merely to highlight the potential exposure that providers might have in these cases.
In Ridouts’ experience, claims of this sort are quite rare. However, this does not mean that they do not ever occur and so it is always best to be prepared. Understanding what underpins ‘reasonable care and skill’ in the health and social care sector and what level and quality of care service users can reasonably expect is a good starting point to ensuring that you are maintaining compliance with your obligations under consumer law, particularly if there is an alleged breach of contract.
If you are having any trouble with service users alleging that you have failed to meet your obligations under contract, are facing enforcement action from the CQC or just want clarification on the impact these issues may have on your particular service, Ridouts’ team of specialist solicitors is here to help. Please contact us on 0207 317 0340 or email us at email@example.com.
You can read Jennifer’s articles in this series, as follows: