Care - The Parliamentary Review

 

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Review of the Year Paperwork is killing care – Rowntree Report being duplicated, often several times with a slightly different emphasis each time. This effect is referred to in the study as a ‘composite burden’. » Staff see some of these information demands as bearing little relation to an assessment of the quality of care a home provides for its residents. » In the care homes visited, about half of the paperwork produced was used infrequently. Some staff felt paperwork was inefficiently designed or implemented. Providers’ interpretations of the value of regulatory paperwork also varied widely. » Some staff felt they were judged more on their ability to produce quality paperwork than their ability to deliver quality care. Care England, the major care providers association, has welcomed the JRF report, with policy director Ann Mackay saying excessive paperwork, particularly the duplication of information requests from regulators and commissioners, was an issue the association had raised on many occasions. ‘As JRF says, this represents an extraordinary burden on homes,’ said Ms Mackay. ‘We agree that paperwork does not always easily capture the quality of relationships between staff and residents. We hope this report and the recommendations will be read closely by providers, Care Quality Commission and commissioners so that we can progress in focusing on giving staff and leaders in homes the time to build a positive culture and ethos in a home.’ REVIEW OF THE YEAR Paperwork has limited the ability to quantify and measure the quality of interactions between care staff and residents Research by the Joseph Rowntree Foundation (JRF) published in February identifies more than 100 separate items of paperwork that must be completed regularly in care homes, responding to a range of regulatory and commissioning requirements. Some care home managers say they spend 20% of their time on paperwork rather than on leadership activities that could improve the quality of care for residents. The JRF report – Is Excessive Paperwork in Care Homes Undermining Care for Older People? – says paperwork has limited the ability to quantify and measure the quality of interactions between care staff and residents. ‘Paperwork has become an industry in its own right, fuelled by fear and insecurity,’ is one key finding of the research. Others include: » Poor cooperation and coordination between agencies responsible for regulation, monitoring and purchasing care results in information Ann Mackay, policy director at Care England | 3

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THE PARLIAMENTARY REVIEW Highlighting best practice The report suggests a number of ‘limited steps’ to improve regulatory paperwork in the short term: » The adoption of a single incident reporting form. » The alignment of national inspection criteria across agencies such as the CQC, NHS and local commissioners. » Sharing and use of information across inspectors of care. » Geographical alignment (improving consistency of approaches to inspection taken by commissioners and regulators in specific local areas). » Organisation of paperwork for different audiences (organising a set of paperwork that can be owned and used by the resident, and organising paperwork that is used more by staff on a day-to-day basis). It may, however, be a forlorn hope that regulators and commissioning bodies will take any of the recommendations on board. Business information specialist Croner reported in March that the coalition government’s three‑year campaign to cut red tape has had a limited impact on British business, and that the promised ‘bonfire of regulations’ had yet to be ignited. In June, nursing homes in Worcestershire were told they The reduction of paperwork is seen as fundamental to raising standards in care would be contractually obliged to use a contract monitoring tool called the Care Homes Quality Dashboard, developed by NHS Arden Commissioning Support. Nursing home operators have described using the Dashboard as a ‘struggle, hard work and time consuming’. Rakesh Kotecha, the East Midlands Care Association’s director for Worcester and owner of a care home in Bromsgrove, said a few managers and owners felt that the information gathered and displayed would help them understand the business, but most felt that it was yet another hurdle that the industry would have to jump for no additional money. ‘Everyone felt that this was something that, despite how weary they felt, they just had to get on with it’, he said. GP retainers – the malpractice continues In 2008, Care England’s predecessor body, the English Community Care Association (ECCA), investigated the practice of GPs charging retainers to work with care homes. The research showed this was a widespread practice, and the principle that healthcare is free at the point of need did not necessarily hold true for care home residents. In late 2013, the ECCA re-ran this research, and discovered that six years after its initial report the practice is still going on and at much the same level. Care England chief executive Professor Martin Green said that, while primary care trusts and clinical commissioning groups may be aware that GPs are charging care homes in this way, it appeared they had no powers to deal with the problem. 4 | REVIEW OF THE YEAR

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CARE EDITION fees charged to care homes for basic services were as high as £24,000 per year. In addition, there was a huge disparity across the care homes that paid retainers in terms of the fees they paid, with little variation regarding the service they received. Consequently, the level of retainer fees appeared to be calculated on a largely arbitrary basis. ‘Some GP practices provide excellent services to care homes at very little extra cost, but the payment of retainers remains ubiquitous across the sector and, in most instances, the care homes that pay retainer fees only receive basic services,’ he said. Charging patients for healthcare is a malpractice that needs to stop ‘Charging care home residents for healthcare is an ongoing malpractice despite the changes to the primary healthcare system,’ Professor Green said. ‘Some care homes are paying thousands of pounds for a basic health service, which citizens have always been told would be free, and we have discovered one GP who has insisted the care home use his surgery pharmacy as a condition of attending to care home residents. These retainers are ageist and totally unacceptable, and we call upon the government, CCGs and the regulator to put a stop to them immediately.’ Professor Green said figures obtained from the survey showed that retainer Professor Steve Field, CQC’s chief inspector of primary care Care England wants the 2015–2016 GP contract to state which services GPs have a right to charge for and which should be free at the point of use, with the same information being added as an amendment to the NHS constitution. The association has also called on the Care Quality Commission (CQC) to ensure that the chief inspectors of both adult social care and general practice prioritise the insertion of a set of metrics into the regulatory framework that can effectively monitor the practice of GPs in this regard. At a CQC board meeting in June, the chief inspector of primary care, Professor Steve Field, attacked GPs over claims that some practitioners were charging retainer fees. Professor Field said he had spoken with ministers about GPs requiring care homes to pay retainer fees. ‘I am disturbed by some of the newspaper reports about GPs refusing to take on patients from care homes unless they get a fee,’ he said. ‘That is completely wrong and we will look into that when we start to do our inspections.’ But Dr Richard Vautrey, deputy chair of the General Practitioners Committee, has dismissed the criticism, saying that REVIEW OF THE YEAR | 5

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THE PARLIAMENTARY REVIEW Highlighting best practice GPs were only charging extra to care homes for extra services provided. ‘Some GPs for example provide a weekly ward round to care homes for which they charge a retainer to the care home, which is used to backfill for the time that a particular doctor spends away from the practice,’ said Dr Vautrey, who accused care home providers of having a ‘vested interest’ in not paying such retainers and therefore driving up their profits further. ‘Many GPs have got concerns about the numbers and the lack of experience of care home staff. Many care homes are looking more and more like elderly care wards but they are greatly understaffed.’ Major deals and developments as care villages regain momentum Bupa acquired Richmond Care Villages (RCV) for an undisclosed sum in August. RCV owns and operates five care villages in England, which are home to more than 660 people. The deal included three further sites for developing new care villages, and the move is symptomatic of care providers looking to develop new care models, offering older people a wider choice and expanding the range of services. The retirement and care village market is in its infancy in the UK, lagging behind the USA, Australia and New Zealand, where there is sector maturity. UK developers say growth here has been hampered by prohibitive land prices and planning constraints. Bupa is a good illustration: its care services division is the UK’s second biggest care home provider, and it manages a number of independent-living and assisted-living properties in the UK through its Goldsborough Estates business, but in New Zealand it owns and operates 22 care villages. Throughout the recession, care villages in the UK have struggled to fill, with elderly people reluctant to sell their homes and make this kind of lifestyle choice during a property slump. That has changed with rising house prices in recent months. In its trading update for the half year to the end of February, major retirement housing builder McCarthy & Stone reported a 21% growth in revenue to £310.8 million. The company reported continued strong sales growth, with forward sales into the second half standing 30% ahead of the same period in the previous year at about £133 million. Since September last year, McCarthy & Stone has agreed to buy 34 new development sites, totalling more than 1100 units. The company also has a sizeable land bank under its control, equating to about 8500 units. Work started in May on a £9.5 million specialist nursing and dementia care village in Warrington, Cheshire. The development is part of CLS Care Services Ltd, a charitable organisation, McCarthy & Stone purchased 34 development sites and saw a 21% growth in revenue 6 | REVIEW OF THE YEAR

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CARE EDITION one of the biggest providers of care homes in the North West. Under its Belong brand, CLS currently operates four established care villages in the North West, with recently completed Warrington becoming the fifth. However, local planning constraints remain a major obstacle to care village development in the UK. A little over a year ago, major retirement community developers and operators came together to form ARCO, the Associated Retirement Community Operators, which has lobbied government ministers and local authorities to review planning policy. Former ARCO chairman Jon Gooding said the biggest impediment for developers of specialist housing for older people is the limited understanding and lack of focus of local authority planners. Another significant stumbling block for new care villages and retirement communities is that local authorities continue to be wary of approving schemes that may result in elderly people moving into an area, and becoming reliant on the local authority to fund their care when their private resources have been depleted and their care needs have increased. In March, ARCO executive director Michael Voges responded to the publication of the National Planning Policy Guidance (NPPG), saying that, while many of the changes were welcome, it was open to question whether or not its cumulative impact would encourage more local authorities to approve specialist housing for older people, and unlock the housing sector as a whole. ‘We are pleased to see that the Department for Communities and Local Government has recognised that housing for older people built under C2 will be counted against local authorities’ housing requirements,’ said Mr Voges. ‘In principle, we also welcome that health and well-being considerations should be included in planning decisions, as housing with care developments relieve the strain on health services. It is too early to tell whether local authorities won’t simply turn this on its head and block proposals for housing for older people out of a misguided fear of becoming ‘importers’ of older people to an area.’ ARCO chairman Jon Gooding Care workers are ‘undervalued, underpaid and undertrained’ – the Kingsmill Review Baroness Denise Kingsmill A Labour government would ‘call time on clock-watch care’ by ending social care visits that last just 15 minutes. Opposition leader Ed Miliband made the promise following the publication in May of a report on the social care workforce by Baroness Denise Kingsmill. The report, commissioned by the Labour party, found that elderly people in nearly two-thirds of areas surveyed in England are visited for no more than 15 minutes, and that many homecare REVIEW OF THE YEAR | 7

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THE PARLIAMENTARY REVIEW Highlighting best practice workers are not paid if they choose to extend a visit. Between 150,000 and 220,000 care workers receive less than the minimum wage, often because they are not paid as they travel between appointments. While tacitly focusing on homecare workers, the report criticises the social care sector as a whole for the way it treats the bulk of its employees, saying care workers are ‘undervalued, underpaid and undertrained’. ‘They don’t have the status of nurses. They don’t have the status of child‑minders. The sector is subject to weak regulation. We don’t know who they are, we don’t know what qualifications they hold and they are not registered with any professional body. This workforce of 1.8 million people in England is almost invisible,’ the report says in its introduction. A tone of umbrage is unmistakeable in many care provider responses to the Kingsmill Review, which looked into working conditions in the sector. Care England said that the review implied zero-hours contracts are pervasive across social care when in fact they are virtually nonexistent in residential care, and that the report appeared to be an example of a political party attempting to match the evidence to its preformed arguments. The United Kingdom Home Care Association (UKHCA) said that, although the review was useful in its analysis of the issues facing the care workforce today, some of its solutions were unaffordable and would not translate into practical solutions and more funding for social care. ‘There is much in the review that we would agree with, as an analysis of where we are now, and as a sector would aspire to, for the future,’ said UKHCA policy director Colin Angel. ‘A well-trained and valued workforce is essential to provide quality care. Care workers’ pay came under scrutiny in the Kingsmill Review However, there is a strong link between what providers receive, in income from council contracts, and their ability to remunerate and train their workforce. Although the proposed Care Charter might help improve local authority commissioning, we wonder if it would give the Care Quality Commission enough clout over councils who pay inadequate hourly rates for care.’ ‘The review also recommends registration and licensing of care managers and, eventually, the whole care workforce, rather than a negative register of those unsuitable to work in care. UKHCA has consistently supported the registration of the homecare workforce as a recognition of the skills and experience within our sector. Our one proviso has been that the cost of registration schemes must not damage recruitment and will need to be borne by the customer. With the public purse empty, where are the funds to pay for this level of professional regulation?’ The National Care Forum, which represents not-for-profit providers, was more fulsome in its response but criticised the review for its failure to give due recognition to the many care providers who demonstrably valued their staff. ‘It is refreshing to see a report that states so strongly the need to value the social care workforce,’ said NCF executive Des Kelly, executive director of NCF 8 | REVIEW OF THE YEAR

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CARE EDITION director Des Kelly. ‘The report highlights funding and irresponsible procurement as the roots of the problems in the care sector. We are however disappointed that there is no recognition of the efforts being made, by not-for-profit providers in particular, to pay care workers the living wage or the fact that 68% of care workers within our membership have a qualification.’ Cameras in care homes? Providers seek to minimise reputational risk in wake of Panorama exposé an HC-One care home when a relative secretly filmed in a resident’s room. In asking residents and their families if they would support such a measure, HC-One hopes such a scheme would help root out instances of poor quality care, neglect and abuse, and act as a deterrent against deliberate bad practice and cruelty, while protecting the privacy and dignity of residents who would prefer not to be filmed. A further Panorama exposé earlier this year of abuse in a care home (not operated by HC-One) has now brought the possibility of both overt and covert CCTV surveillance into wide discussion. Setting out her plans and priorities in November, the Care Quality Commission’s newly-appointed chief inspector of adult social care Andrea Sutcliffe said it would discuss the risks and potential benefits of hidden (as opposed to visible) cameras, but many are opposed to the use of cameras in care homes. Lawrence Tomlinson, chair of the LNT Group, which owns Ideal Care Homes, described the widespread use of CCTV as ‘a waste of time’. ‘There are many different ways of dealing with what we saw on the Panorama programme and at Winterbourne View,’ he said. ‘When something like that happens at a care home, I don’t believe that just one person is involved, or that other people don’t see what’s going on.’ REVIEW OF THE YEAR Winterbourne View HC-One, the UK’s third largest residential care provider, launched a four-month consultation in May on whether visible CCTV cameras should be installed in all of its 226 care and nursing homes to deter and reduce possible abuse and neglect of residents. Should the scheme get the green light from residents, families and staff, HC‑One would operate an ‘opt-in’ scheme, where residents and their relatives would be able to ask for cameras to be placed in their rooms. HC-One would be the first provider to implement this kind of scheme. This contemplation of overt CCTV monitoring came in the wake of a BBC TV Panorama programme two years previously, which exposed failings at | 9

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THE PARLIAMENTARY REVIEW Highlighting best practice ‘Whistleblowing needs to be made easy, simple and completely anonymous. I give all my staff an iPhone with a “Contact Lawrence” button on every phone, and that contacts me directly. So, if we’d had a Winterbourne View incident, I’m certain that someone would have contacted me, and I would have had it investigated.’ ‘There may be a need, on very rare occasions, for covert cameras if you were looking to get evidence about a particular person, but I think there’s very little you can do to prevent an incident if you’ve got one rogue person, so I think the key thing is to ensure that the staff in the home are able to tell key management what’s going on.’ Older people’s charity Independent Age isn’t keen on the idea of cameras in residents’ rooms either. The charity’s chief executive Janet Morrison said that, in any setting, the privacy and dignity of care home residents must be protected. ‘In the rare cases where there is a genuine cause for concern about the care of a resident we could see the potential for using CCTV,’ said Ms Morrison. ‘However, cameras must not be used as a matter of routine and we would not want their use to become the norm. They should never become a substitute for good management and proper staff supervision.’ The GMB union has also voiced a note of caution. Justin Bowden, GMB national officer for the care sector, said the union would seek the views of its 6000 members in 227 HC-One care homes. ‘Cameras in care homes is a highly emotive subject which provokes understandably strong views and such a big step requires very careful consideration,’ said Mr Bowden. ‘HC‑One is wise to be approaching this with caution and as part of a wide‑scale consultation.’ The contemplation of placing CCTV in care homes came in the wake of a BBC TV Panorama programme that exposed failings at a care home when a relative secretly filmed in a resident’s room Deal, no deal – two major representative bodies abandon merger The National Care Association (NCA) announced at the end of May that, despite extensive discussions, the proposed merger with Care England (formerly the English Community Care Association) announced in August last year would not go ahead. Had the merger happened, Care England, already the biggest of the associations, would have absorbed another 2000‑plus NCA members. Many care home operators are critical of the plethora of associations, and at least two retiring senior public figures have candidly admitted that they had used provider disunity to their advantage. Eight years ago, when she was chair of the former social care regulator the Commission for Social Care Inspection (CSCI), Dame Denise Platt 10 | REVIEW OF THE YEAR

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CARE EDITION body – the Care Providers Alliance (CPA) – whose stated aim was to ‘develop a means of engaging effectively with policy makers, national bodies, commissioners and regulators’, but this was a long way from a merger. NCA chair Nadra Ahmed said both the NCA and Care England were committed to the principles of a merger, which would have brought about a strong and coherent voice for the sector at a time when providers were facing considerable challenges. ‘However we now believe that the interests of all providers will not be best served through a merger of the two organisations at this time,’ said Mrs Ahmed, omitting to explain what had changed since the intention to merge was announced. Both Care England and the NCA have been coy about making public the precise reasons for the about-face. Care England chief executive Professor Martin Green said that, under the due diligence process that formed part of the merger negotiations, it had become very clear that it was very difficult to merge a charity (Care England) and a company (the NCA). ‘I think both associations are of the view that a merger would have been good for the sector, but I think with all mergers – and I have been involved with several – you can get to a space where you realise that it isn’t going to fly, and that’s what happened here,’ said Professor Green, adding that the 1st of January had been set as a merger date to set a time-frame for the negotiations. ‘As the time-frame developed it became clear it wasn’t going to happen,’ he said. ‘We pushed the time‑frame a bit to see whether or not we could engage, but unfortunately we couldn’t.’ Professor Green said the various associations would continue to work together through the CPA. ‘In the REVIEW OF THE YEAR Dame Denise Platt said that when she had worked in the Department of Health it was evident that the department did not know how to talk to the private sector. ‘There was every reason not to consult if there were many small associations,’ she said. A year previously, former CBI director general Digby Jones told providers to ‘forget your differences and come together if you want to be believed’. In 2009, the sector went some way towards greater unity, with 11 care associations forming an umbrella The NCA and Care England couldn’t find a way to shake on it | 11

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THE PARLIAMENTARY REVIEW Highlighting best practice talk about sector unity, people get completely hung up with the number of organisations, but that isn’t the definer of sector unity – it’s “Do we all think the same thing and do we all espouse the same message?” Pretty much we all do, so there is a unity of purpose within the sector.’ ‘The CPA brings together a range of stakeholders to provide another opportunity to put forward our views, and we do that regularly – we might not be shouting about it, but we are doing it.’ This is not the first time that two care associations have announced a merger, only to backtrack at the eleventh hour. Fifteen years ago, the Registered Nursing Home Association (RNHA) failed to turn up at an event at Westminster held to celebrate the joining of the RNHA and the NCA. Nadra Ahmed, NCA chair Care Act 2014 will impact on funding and eligibility, but how? Care services minister Norman Lamb says The Care Act 2014, enacted in May, represents the most significant reform of care and support in more than 60 years, putting people and their carers in control of their care and support. There is, however, widespread uncertainty about how the funding reforms will play out. The legislation has adopted a ‘capped cost’ model of social care funding developed by economist Andrew Dilnot, who proposed that the cap should be set at £35,000, but the government has now legislated to implement the proposals by introducing reforms in April 2015 which will see a ‘cap’ of £72,000 and the introduction of an upper means‑tested capital limit for residential care of £118,000. In doing so, it has ignored a call from the national charity United for All Ages to abandon what it argues is fundamentally flawed legislation. The charity says the cap on care costs will primarily protect wealthier families’ inheritances and won’t stop many ordinary older people having to sell their home to pay for care. The charity said in January that a new funding system based on taxation would be fairer and simpler. Economist Andrew Dilnot In September, the Strategic Society Centre (SSC) in partnership with Bupa released a report – A Cap that Fits – which said the reforms: » would not cap people’s care costs, given most individuals pay more for care than what their local authority contributes, particularly in residential care » would not give people peace of mind because of annual increases in the value of the ‘cap’ by around £3000 per year » would not enable people to prepare for the costs of care because the £72,000 ‘liability’ individuals are left with is uninsurable, and there will be no insurance market in response to the reforms. 12 | REVIEW OF THE YEAR

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CARE EDITION of a broader integrated health and social care system if we are to develop and implement a model that is truly sustainable and fair,’ Mr Cannon added. The proposed reforms have been further undermined by research published in May by healthcare market analysts LaingBuisson, which suggests the Care Act could create destabilising uncertainty. ‘The reforms could herald an increase in “top-up” funding, owing to legislation which will, for the first time, legally allow council-funded clients to dip into their own savings in order to secure a bed in a more expensive care home,’ said economist William Laing. ‘A critical issue for the sector is whether most or all of these newly enfranchised residents will move into the quasi-private pay category by part-funding their care with top-ups or whether they will become pure local‑authority-funded residents.’ ‘In what could be the start of a transformative period for UK residential care services as a result of these two changes, new money could begin to run into the lower end of the residential care market. Or, if that is not the direction of travel, those care groups with client bases which are already primarily made up of councilfunded residents could see grave new threats as councils’ fee rates continue to lag far behind Fair Price levels.’ Care services minister Norman Lamb The report also noted that the ‘capped cost’ reforms were likely to prove a barrier to the government’s integrated care agenda, despite the government committing more than £3 billion to integrated care from 2015. The SSC/Bupa report goes on to recommend an alternative package of reforms to be implemented in 2016, called ‘capped cost plus’, which James Lloyd, director of the SCC, report author and former Downing Street advisor on care funding reform, says would overcome many of the problems identified. Bupa Care Services managing director Andrew Cannon said Bupa was concerned that the proposed cap would further isolate social care from the NHS and risked widening the gap between care costs and what local authorities pay for care. ‘Social care funding must be considered as part Corporate accountability and a ‘duty of candour’ – the Care Quality Commission gets the powers to get tougher Following the Francis Inquiry into neglect of patients by the Mid‑Staffordshire NHS Foundation Trust and the abuse of patients with special needs at the Winterbourne View hospital, the Department of Health issued a consultation in late January on new ‘fundamental REVIEW OF THE YEAR | 13

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THE PARLIAMENTARY REVIEW Highlighting best practice standards’, which came into force in October 2013. The new standards are applicable to all regulated activities, and will be used both when registering new providers and when inspecting existing providers. In November last year, in her first major announcement as chief inspector of adult social care, Andrea Sutcliffe outlined the Care Quality Commission’s (CQC) new priorities, which included a tougher stance when registering care services by ‘ensuring that those who apply to run them have the right values, motives, ability and experience’, and tougher action against services that do not have registered managers in place. In May, the CQC said it had secured a 57% increase in the number of new registered managers across 2439 health and social care services targeted in a six-month project set up last September to improve the high number of locations operating without a registered manager in place for the longest periods of time. The regulator used enforcement powers across 590 locations that failed to appoint or submit an application for a registered manager. A high proportion responded without the need for the CQC to take further action, but 42% paid a fixed penalty notice. Also, following the collapse of Southern Cross in 2011, the regulator will, from April 2015, monitor the finances of an estimated 50–60 care providers that would be difficult to replace if they were to go out of business. In his report on the failings at Mid‑Staffordshire, Robert Francis QC said the existing CQC Essential Standards of Quality and Safety, which came into force in 2010, were not only unclear but ‘over-bureaucratic and fail to separate clearly what is absolutely essential from that which is merely desirable’. November saw the CQC take a tougher stance on care homes registration Two of the proposals put forward in the Francis Report, and which the Department of Health has decided to adopt, are a new ‘duty of candour’ (i.e. care providers being honest and disclosing when mistakes occur) and a new ‘fit and proper persons’ requirement for directors of corporate providers. The consultation that began in January did not cover these issues, and the Department of Health has said it will consult separately on each of them, although ‘the intention is to introduce these measures alongside the Fundamental Standards as part of the same set of regulations’. Draft regulation 17 introduces another recommendation of the Francis report, namely the ability of the CQC in future Care homes saw fixed penalties for not registering managers 14 | REVIEW OF THE YEAR

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CARE EDITION to prosecute for breach of a regulation without the requirement, as at present, to give the provider the opportunity of remedying the breach through the issue of a warning notice. It is proposed that the CQC will be able to prosecute without warning notices in respect of any of the regulations other than those relating to good governance, staffing and fit and proper persons employed. Specialist social care solicitor Peter Grose of the law firm Lester Aldridge said the need for a warning notice to prosecute for lack of good governance was ‘very strange indeed, bearing in mind the findings of Francis and the Winterbourne View inquiries which concluded that the disasters which occurred boiled down to poor governance’. He added: ‘It should be noted that there will continue to be the defence for the registered person to prove that they took all appropriate steps and exercised all due diligence to ensure that the provision in question was complied with.’ ‘The consultation makes it clear that the intention is that CQC will issue its own guidance in relation to the new Fundamental Standards and Regulations. It is not helpful that draft CQC guidance was not issued simultaneously with this consultation. It is difficult to comment on the proposals without knowing how CQC will interpret and enforce them.’ Robert Francis QC headed the investigation into the Mid Staffs scandal ‘Acid test’ for deprivation of liberty – the Cheshire West judgement authorised by the Court of Protection or by procedures called the ‘deprivation of liberty safeguards’ under the Mental Capacity Act 2005, but what has become known as the ‘Cheshire West judgement’ has introduced a new acid test in deciding whether an incapacitated adult is being deprived of their liberty. The test comprises two key questions: » Is the person subject to continuous supervision and control? » Is the person free to leave? A Supreme Court judgement has increased the burden on care providers and local authorities A Supreme Court judgement on what constitutes deprivation of liberty in a care context means care providers and local authorities will have to deal with a huge administrative burden as tens of thousands more care home residents will now fall within the definition. A person can only be deprived of their liberty in a care home or hospital if it is To be deprived of their liberty, an incapacitated adult must be subject to both continuous supervision and control and not be able to leave their placement. In addition, the area and period of confinement are ingredients of deprivation of liberty. As Lady Hale said in giving the leading judgement: ‘a gilded cage is still a cage’. People who lack the capacity to make (or implement) their own decisions REVIEW OF THE YEAR | 15

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THE PARLIAMENTARY REVIEW Highlighting best practice about where to live may justifiably be deprived of their liberty in their own best interests – they may well be a good deal happier and better looked after if they are – but that does not mean they have not been deprived of their liberty. The difficulty for the sector is that the Supreme Court did not come up with prescriptive criteria as to what is meant by ‘continuous supervision and control’ or ’not being free to leave a placement’. Given that one of the settings the Supreme Court looked at was domestic in nature, it appears the supervision does not have to be constant. Lady Hale did identify the following as being relevant: » control over who the incapacitated person can have contact with » control over the activities that the person is allowed to participate in » not being able to leave the placement without supervision » not being free to leave the placement permanently in order to reside elsewhere in a different type of setting. What we do know is what the test does not include. The Supreme Court was clear that the following are not relevant as far as the test is concerned: » the person’s compliance or lack of objection » the relative normality of the placement » the reason or purpose for the particular placement. The Alzheimer’s Society has estimated that there are around 200,000 clients with dementia in care homes in England and Wales. Subject to what clarification the courts may add in the future to the concepts of continuous supervision and control and not being free to leave, it seems highly likely that the vast majority of dementia clients in care homes will be judged to be deprived of their liberty. This has huge implications for care home providers looking after such clients. Many more urgent authorisations will need to be made by care home providers (known as ‘managing authorities’ in the jargon of the Mental Capacity Act), backed up with applications for standard authorisations to local authorities (the so-called ‘supervisory authorities’ under the same legislation). Commenting on the judgement, leading Court of Protection barrister Victoria Butler-Cole, of 39 Essex Street Chambers, said: ‘If this judgement is right then there are a lot of people The Alzheimer’s Society estimates there are around 200,000 people with dementia in care homes in England and Wales 16 | REVIEW OF THE YEAR

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CARE EDITION deprived of their liberty who are not authorised as such, and a lot of people who have been recently assessed as not being deprived of their liberty who will need to be reassessed.’ The Association of Directors of Adult Social Services says the cost to cover all councils in England and Wales to meet the surge in demand is likely to exceed £70 million. Foreign money fuels growth 8.2%, but the market is polarised between prime covenant-led stock, including the recent deal by Methodist Homes Association (MHA), trading at sub six per cent yield and secondary opportunistic assets trading at higher yields than the benchmark,’ said Dr Boettcher. ‘As capital value growth turns positive we expect compression in 2014, resulting in total returns to this property sector reverting to double figures for the first time since 2010; returns could match those achieved in 2007 of 15.5%.’ The investment in the UK care market has seen a huge growth in recent years REITS (Real Estate Investment Trusts) in the USA have bought heavily into the UK care market over the last 12 to 18 months as traditional bank funding continues to be problematic. In its spring 2014 review of the care home sector, property consultants Colliers International said the investment market was heating up, reminiscent of pre-downturn levels between 2005 and 2006, with increased interest in care home assets stemming from rising competition in the main property asset classes, which had occurred as investors looked for opportunities in alternative sectors. Colliers’ director of research and forecasting Dr Walter Boettcher said the surge of attention had pushed investment yields down by 50 basis points over the six months to May. ‘Care home yields are on average Colliers’ head of healthcare Adam Lenton said the weight of investment money that had come into the UK care market over the last 12–18 months had been ‘quite incredible’. ‘The US REITS have come into the UK, having seen the opportunities here in comparison to the US where the market is perhaps more saturated,’ he said. ‘But also, the mainstream institutional funds are now looking at healthcare, and I think a lot of that is because the mainstream commercial investment markets have not been delivering the same value that they were.’ ‘We are now seeing yields that we haven’t seen since before Lehmans in 2007. I think there are two things there: institutional investors are looking for the good quality covenants that come with good quality operators – that’s typically Bupa, MHA, Anchor, Care UK – but REVIEW OF THE YEAR | 17

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