Improving Enforcement in Adult Care Homes

Another week, another consultation.  The Department for Business, Innovation and Skills (DBIS) are holding a review of regulatory enforcement in the adult social care sector.  The website says:

In this review, we are asking anyone involved or interested in the adult care home sector to let us know their views and experiences on how current enforcement of regulation in this sector is working. This is part of an initiative to drive up standards and enable providers to achieve the highest standards of care, while removing confusing bureaucratic requirements that divert carers from meeting the needs of residents.

The inspection frequency pendulum swings again?

As regular readers of this blog will know, I am interested in how human rights can be protected through social care regulation.  A while ago I wrote a piece which discussed how over the last decade the approach to regulation of social care had changed from a methodology that relied upon high levels of inspection to a methodology that used risk-based proportionate inspections.  I wanted to follow up on a couple of things from that piece.

Speaking truth to power

The House of Commons Health Select Committee (HSC) have published a report (also here in pdf form) on their annual accountability hearing with the Care Quality Commission (CQC).  You may recall that earlier this year the HSC gave the CQC rather a grilling over the massive drop off in inspections (which I've discussed previously on this blog).

The report heavily criticises CQC's leadership for the fall-off in inspections, recruitment of inspectors, the 'Excellence' award, their whistleblowing procedures, over-reliance on Quality and Risk Profiles etc, but the reasons it gives for doing so are quite interesting politically.  On scanning through the report the overwhelming impression is of an organisation that was given an impossible task on impossibly tight resources.  From the one-third cut in funds when the three predecessor commissions were combined, to the government-imposed freeze on recruitment of non-front line staff (apparently inspectors are 'back office'), to being required to re-register all providers and a whole bunch of new services on these limited resources, it seems as if CQC were asked to achieve the impossible by parliament and the government.  The report acknowledges that, and yet it still slams the CQC's leadership for failings.  Why?  Because:

Regulation, Rights and Risk

[Note: This post was updated in August 2011 and can be downloaded from here (pdf).  The updated article contains better statistics and is focussed more on the role of inspection to prevent abuse and neglect, rather than human rights per se.  I've left the original post up though for interested parties.]

I will be devoting an entire chapter of my thesis to the potential and challenges of a regulatory approach to human rights protection in social care, and there is much to discuss therein.  Whether the founding principles of the Care Quality Commission (CQC) should have been more explicitly human rights oriented, and whether they should have been able to take up individual complaints, as the Joint Committee on Human Rights had advocated.  Whether the CQC’s approach to monitoring the deprivation of liberty safeguards is adequate and compliant with the UN Optional Protocol on the Convention Against Torture (see this blog post and this for more discussion).  Whether the inspection methodology itself is ideally suited to human rights protection and promotion, and whether the care inspecting arms of CQC could perhaps learn something from the former Mental Health Act Commissioners 'visiting' methodology.

In today’s post, however, I will be limiting myself to considering a single issue: the case for a shift to a risk-based approach to inspection, justifying a significant overall reduction in inspection frequency.  I will not be discussing in any great detail specific human rights issues, but it is the potential for CQC to act as a human rights inspectorate that leads me to consider this in the first place.  I am very well aware that inspection is not a magic wand for human rights issues; it offers no cast iron guarantees against violations.  I can tell you, having worked for many care providers, that there are a huge range of things that get tidied away before the CQC’s announced visits.  There are behaviours that magically disappear when CQC inspectors are on site.  However, inspection can – and does – pick up on the more glaring problems with a care provider, and can also have an important preventive function where there is a strong likelihood of a visit from an inspector.

CQC's (very slim) first monitoring report on the DoLS

The CQC has a legal duty to monitor the deprivation of liberty safeguards.  Regulations give them powers to visit hospitals and care homes, interview patients or residents, and inspect the paperwork in relation to anyone who is deprived of their liberty under the safeguards.  They are required, by law, to produce an annual report for parliament, as soon as possible after the end of the financial year  'when requested to do so by the secretary of state'.*  The safeguards came into force in April 2009.  It is now March 2011, and this is the first report we have seen by CQC (here).  There have been other reports, though not by the CQC.  The NHS Information Centre produced what is essentially a statistical report into the DoLS last year (here); the report told us that there was very low and uneven uptake of the safeguards, but offered little analysis of why that might be the case.  The Mental Health Alliance report last year (here) helped to fill that vacuum of analysis; they drew from their considerable pool of experience of their members to paint a picture of a legal framework that had ‘barely begun to function’.  Key problems identified by the Alliance included poor understanding of the safeguards by both managing authorities and supervisory bodies, and in some cases outright resistance to their application or manipulation of their provisions.  They stressed that there were many disincentives to their use – excessive bureaucracy, unwelcome additional scrutiny of care practices, empowering detainees and relatives who might object to care plans – coupled with very little real threat of litigation if they were not applied, or applied inappropriately.  Some might say that this was a situation when a regulator, who had oversight not only of the managing authorities of care homes and hospitals, but of the supervisory bodies themselves, could have a powerful impact on compliance.