What happens when a critical incident occurs at your care service?

When a major event occurs at a home, be it a death or a serious incident, there will be many authorities and bodies interested in what has happened, and what is happening, at the home.  This is likely to include the police, the CQC, commissioners, and the local authority in its safeguarding role.  Additionally, following a death, the coroner will also be involved.  The media may show an interest too.

Such an occurrence can have a significant impact on a home – staff may have been suspended; substantial resource may be needed to manage the numerous stakeholders; and staff and service users may be grieving.

Each relevant stakeholder is likely to visit the Home unannounced and make numerous demanding requests of the Home and its staff.  Often there will be competing demands.  It is important that these bodies are not dealt with in isolation of each other but rather there is a core team that should be responsible for dealing with all bodies so that there is oversight and a united, comprehensive picture is being presented.

It is important for providers to understand what each body is likely to do, how such investigations can impact their business and how best to handle them if they do occur.

Police

  • The police sometimes investigate a death of service user at care homes. If the police are involved their investigation takes priority.  Other authorities, including the provider, have to take this into account and not be seen to be interfering with the investigation.
  • Offences which they may consider include: wilful neglect, gross negligence manslaughter, corporate manslaughter.
  • In all but the most serious circumstances e.g. to save life, prevent a breach of the peace, the Police can only enter the Home with a warrant or with your authority.
  • They are only entitled to documents if they have a warrant to enter the premises otherwise the handing over of documents is voluntary. However, it is usually best to co-operate.
  • Unless the police are present with a warrant, you are entitled to question the request, refer the matter to senior management and plan for the handing over of paperwork, including asking the police to return at a later date:
  • Ensure copies of documents are given and not the originals
  • Keep a detailed list of what is taken in any event.
  • If the police want to speak to a staff member or representative of the company clarification should be sought on whether this is as a witness or a suspect. If the latter, the police should caution the individual.  They are entitled to legal representation and Advanced Disclosure.  Unless the person is arrested, they are not obliged to talk to the police but arrest may follow quickly if they refuse.  Advice should be sought.
  • Request a copy of any statement given.

CQC

  • Has the power to enter the Home and inspect at any time.
  • They may obtain documentation in the following ways:
  • Under the Police and Criminal Evidence Act 1984 (PACE) when it will issue a Code B – if this is done, CQC believes that an offence under the Health and Social Care Act 2008 may have been committed;
  • Request documentation under section 64 Health and Social Care Act 2008 (failure to comply without reasonable excuse is an offence);
  • By just requesting them and the home handing them over! Consideration should be given to whether this is done.
  • Ensure copies of documents are given and not the originals.
  • Keep a detailed list of what is taken in any event.
  • Participate in any inspection, provide evidence, and push for detailed feedback and inspection notes.
  • Respond thoroughly to a draft Inspection Report, include evidence and consider whether a higher rating can be achieved and should be requested with reference to evidence.
  • CQC can take enforcement action against the Home. Often enforcement action starts low level and can escalate if matters are not challenged and/or dealt with at the earliest opportunity.
  • Always consider responding to Warning Notices, including factual accuracy and representations about publication.
  • Always respond to a Notice of Proposal or Notice of Decision.
  • Seek advice on what action to take as soon as you receive any notice from CQC. Often there are short timeframes in which to respond so the earlier action is taken the better.

Local Authority/Safeguarding

  • Has two predominant roles: Contract Monitoring and Safeguarding
  • Contract Monitoring: To monitor any contract in place for local authority funded service users.

The LA is entitled to enter the home as set out in the Contract (usually at reasonable times).

  • Safeguarding: To act as lead authority for all safeguarding matters for all service users regardless of funding status. The LA has no right to enter the Home on safeguarding grounds and their entry is always done on the invitation/consent of the Home.  It is usually best to co-operate however, if the LA becomes too disruptive a provider can ask it to make appointments in advance or even refuse entry if necessary.
  • The LA is likely to call a meeting if there are safeguarding concerns at the Home. Always ask for an agenda and list of attendees for any safeguarding meeting. It is likely that CQC and the Police (where the matter has potential criminal liability) will be present too.
  • There is no obligation to attend the meetings although it is usually better to do so however advice should be sought if the LA is not co-operating with your request for advance information.

Coroner

  • The purpose of an Inquest is not to apportion blame but rather determine: Who the deceased was; when they died; where they died and by what means they came by their death. In some circumstances this can be widened to include “in what circumstances” did the deceased die.
  • The Conclusion (Verdict) reached should not use language that suggests civil or criminal liability. However, Conclusions can be negative and have a negative impact on the Home and Company.
  • The Home can, and usually should, ask to be considered an Interested Person at an Inquest.
  • This will allow the Home to have access to all documentation being relied upon at the Inquest (including the post-mortem) and allow the Home to participate at the Inquest, including asking witnesses’ questions.
  • The Home will, in any event, be asked to disclose documents to the Coroner. Anything of relevance should be handed over.  The Home should keep a record/copy of what is sent.
  • Staff may be asked to provide a witness statement and be called to give evidence at the inquest.
  • A Regulation 28 Prevention of Future Deaths Report may be issued to the Home/Company which it should respond to within 56 days of it being issued.
  • The Home may be able to avoid a Regulation 28 Report by being involved in the Inquest and providing evidence on any action taken since the death.
  • Any Response to a Regulation 28 should be balanced, and include achievable actions which are then done and followed up!

This quick overview of the likely interested stakeholders demonstrates the complexity that can arise should a serious incident occur at a home.  It’s best for providers to be prepared and co-ordinate a response.  Please contact Ridouts if you have any questions or find yourself experiencing such difficulties.