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Past the peak: why the fairytale ending will have to wait for the social care sector

15 July, 2020

By JENNY WILDE, Solicitor/Director,

Ridouts Professional Services PLC

It has been an unforgettable few months for all of us. The profile of our world has changed for ever and we have quickly adapted to connecting and working in ways that we never have before. Most of us have been lucky; we have been able to carry on with some semblance of normality with a few technological tweaks here and there. Our respective sectors are unlikely to change in the long-term and if they do, it will be in the interests of efficiency through what we have learned.

But what of our health and social care sector? Panic, fear and unrelenting work have been the order of the day for almost four months now. Whilst the NHS has capably handled the primary care of thousands of patients, absorbing cheers and applause every Thursday night, its social care sister tells a very different story –in which it features in the role of Cinderella – yet again.

So after a tidal wave of rapidly changing guidance, difficult conversations with families about lockdown, high percentages of staff sick or in isolation, pressure to admit service users with positive or no test results and a staggering 900% (on average) increase in the cost of regular PPE – the social care sector is drained both physically and financially. The deaths of existing service users and the public’s lack of appetite for placing loved ones in care services right now (thanks to a constant stream of negative press on escalating numbers of infections in some services) means that the sector is struggling.

So now that the peak of the infection has passed, we would have hoped that the social care sector could be afforded some time to breathe, regroup and plan for the future. But this might not be the case. Many providers are now facing new problems:

Complaints

Firstly, numbers of providers have seen an increase in complaints from family members about the way that the Covid-19 crisis was handled, the fact that access to family members was restricted and in some cases, blame over the passing of their loved one. Providers have a regulatory duty to respond to any complaint.

We have been advising our clients and other providers participating in our weekly surgeries to document every decision made during the pandemic. Risk assessments, staff meetings, handovers and discussions with family members should be clearly and comprehensively recorded. Such documents will be of significant value

The way that some providers operated during the pandemic may leave them open to challenge from family members in terms of a contractual claim or potential health and safety prosecutions. If you receive a complaint that implies that further action could be taken against you as a provider organisation, or you simply see that the issue could be problematic, we would strongly suggest you consult your insurer and legal advisor before responding formally as any response that is provided is likely to be used in any such claim or case.

 

Inquests

In some cases where service users or even staff members have passed away and Covid-19 is cited as a cause of death on their death certificate, a social care provider may be made an interested party in any inquest relating to that death. This may require a contribution to the hearing which looks into how and why a person has died and as an “interested party” it may be that the coroner concludes that some action taken (or indeed, not taken) by the provider had a role to play in that death. Again, this could lead to further action from family members after the inquest and could also trigger regulatory action if it transpires that a policy or procedure was not effective.

Future regulation

As health and social care providers will know, normal inspections were suspended by the CQC towards the start of the pandemic and a new “Emergency Support Framework” (ESF) put into place to monitor services that were most “at risk”. CQC has now stated its desire to resume physical site visits and transition into some level of normal regulation but, it has also indicated that the limitations of the pandemic has inspired it to think more seriously about “smarter regulation”. In her article dated 1 July 2020, my colleague Maddi Gaunt reflected on what this would mean for providers as the CQC consults on how registrants might feel about a more “intelligence-led” approach. My view is that this is a dangerous new dawn. We are all au fait with the pitfalls in our current system related to subjectivity of inspectors, misinterpretation of documentary evidence and basic personality clashes but how will this be better? Who controls what data is considered and by whom? How will care be observed? Can a desktop inspection really trump the experience of witnessing happy and well cared for service users first hand? There will be arguments both for and against such a system, but the truth is that we don’t know how it will look or how it could help or indeed hinder a provider until it happens. The pandemic has provided a convenient platform for this type of regulation, an aim that has been on the CQC’s agenda since 2018 and would have obvious cost saving benefits for the regulator but no clear advantages for providers or service users.

One thing that is causing some providers sleepless nights is how the CQC will approach their services in terms of general attitude. Whilst maintaining compliance is obviously vital, the sector has been through an emergency scenario where immediate care and infection control has been prioritised. Will inspections take this into account? How much empathy will the CQC show for what social care services have been through? Are we about to see services, already struggling, being plummeted into “Inadequate” and being deprived of already scant admissions? This is the start of a perfect storm.

Conclusion

As I write this, Boris Johnson, our Prime Minister, has publicly stated: “too many care homes didn’t really follow the procedures”, implying that they are responsible for the huge numbers of Covid-19 deaths amongst care home residents. This has, understandably, been greeted with incandescent rage and a great deal of hurt from a sector that has done everything possible, with minimal resource, to try and protect its vulnerable people.

It is absolutely clear that the guidance issued to care homes by Boris Johnson and his government (usually at 5pm on a Friday) throughout the pandemic put homes at risk. The priority for the government was to free-up hospital capacity at any cost. There is no question about this.

Until 14 April 2020, government guidance to care home providers indicated that they were expected to accept admission of Cover-19 positive residents and further that “negative tests were not required prior to transfers/admissions into care homes”. The sector followed the guidance accordingly in fear or regulatory reprisal.

It was not until 19 June 2020 that the government finally updated its guidance on admission and care of residents during Covid-19 to state that “No care home will be forced to admit an existing or new resident to a care home if they are unable to cope with the impact of a person’s Covid-19 illness…” Prior to that the government’s instruction was that all residents with CovidD-19 could be safely cared for in care homes.

This cruel and misleading statement will not offer any confidence to the social care sector that the government will make any meaningful attempt to give it the respect that it deserves or create a national system that will see it brought up to par with the NHS. This looming cloud, sitting alongside impending legal action, increasing numbers of complaints, a recession and the uncertainty of a regulator with ever changing goalposts signifies a rocky path ahead. But, like Cinderella, our social care sector will roll its sleeves up, put on a smile and get back to work – in spite of its unappreciative and cruel taskmaster.

  • If your service is having difficulty with any of the issues raised in this article, please call Ridouts on 0207 317 0343 or email info@ridout-law.com

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