Protecting Future of the Care Sector

Michelle Penn, partner at law firm BLM, analyses the current state of the care sector and whether it is in a viable position to survive the impact of the COVID-19 crisis.

It is no secret that care homes have been badly impacted by the Covid-19 crisis. According to the Office for National Statistics (ONS) data, 14,355 deaths involving Covid-19 occurred in care homes between 10 April to 2 October 2020 in England alone.

Accordingly, media coverage into the treatment of care homes by the Government during Covid- 19 has been widespread and less than favourable.

BBC Panorama episode The Forgotten Frontline highlighted the struggles that care homes faced in protecting vulnerable residents at the height of the pandemic, bringing about serious questions on the Government’s approach to care homes.

But what about the all-important Care Quality Commission’s (CQC) response? As an independent regulator of health and adult social care in England, with a self-declared purpose to “make sure health and social care services provide people with safe, effective, compassionate, high- quality care”, it holds the register of care providers and ensures they meet clear legal requirements through monitoring, inspecting and rating services.

Legally, care providers must pay significant annual fees to the CQC for these services, with the 2019/20 ‘bands’ ranging from £313 to £15,710, dependent on the maximum number of residents that can be accommodated at each location – and care homes expect certain levels of protection in return.

Should payment of these fees have been suspended during the period when levels of protection were also suspended?

WHAT KEY MEASURES HAS THE CQC TAKEN DURING THE CRISIS TO PROTECT CARE HOME BUSINESSES AND THEIR RESIDENTS?

At various stages throughout the pandemic, the CQC made changes to its ways of working in order to cope with the crisis.

Just as the crisis began to seriously impact the UK, on 16th March there was an immediate cessation of routine inspections to allow services to focus on more urgent safety matters and protect staff. However, registered service providers were assured that the CQC would use its intelligence and information to continue to take action when it was needed.

During this extended period of cessation of inspections, the CQC were monitoring social care under its Emergency Support Framework (ESF), providing telephonic support to providers. During the period 2nd March to 31st May, the CQC confirmed it received a total of 2,612 calls as a result of adult social care staff raising concerns, an increase of 55% compared to the same period the year before. Of those 2,612 calls, 26% related to lack of PPE or other infection control products, 32% related to concerns about how infection control or social distancing was being practiced and 4% related to quality of care being impacted by Covid-19.

Despite the high volume of calls and concerns raised, only 17 physical adult social care inspections were conducted 17th March – 17th June, with the CQC stating they had followed up most of these complaints via telephone or by escalating to local authorities.

This called into question whether the CQC was appropriately responding to the high volume of concerns being raised at the height of the national lockdown. It was not until the 17th June that the CQC announced a return of routine inspections, with inspections of ‘lower risk services’ resuming in the autumn and ‘higher risk services’ inspections set to take place over the summer.

However, the inspection model has changed, as announced here by the CQC on 16 September. The transitional regulatory approach commenced on 6th October and allows the CQC to obtain information from multiple sources, including providers, service users, families and carers. This will allow ongoing monitoring against Key Lines of Enquiry. Where risk is deemed low, no further action will be taken. If higher, a targeted inspection will take place, focussed on areas of risk. Not all of the five key questions ordinarily reviewed or Key Lines of Enquiry will necessarily be covered. This will allow a focussed and adaptable inspection and may not lead to a change in rating.

Other noteworthy changes enacted by the CQC include:

• Change to notifications: care providers no longer need to notify the CQC about individual cases of coronavirus, only if it affects the day to day running of the business

• Registrations digitised: must be submitted online instead of via post

• Evolution of monitoring services via the launch of a new ‘transitional monitoring approach’ from 6th October across social care sectors

In summary, the care regulator does not have plans to return to how it functioned pre-pandemic. It will not be returning to their fixed timetable, nor to its previous inspection processes or frequency of inspecting and publication of reports.

CASE IN POINT: EAST KENT HOSPITALS TRUST

Following the resumption of inspections by the CQC, on 11th August the care regulator investigated the William Harvey Hospital in Ashford, part of the East Kent Hospitals Trust. Investigating the emergency department and some medical wards, including Covid-19 wards, a series of Covid-19 practice failings were discovered. As summarised by a recent BBC article on the report, “staff did not always wear PPE or face coverings correctly” and that “at least seven members of staff were seen entering and leaving the ward caring for people who were suspected of having Covid-19 without adhering to hand hygiene practices”. Staff also reportedly did not always have access to hand gel or hand washing facilities.

This led to the issuing of a Section 31 order against the Trust, meaning that going forward, the Trust must undergo closer monitoring and weekly reporting over its infection control measures.

The alarming nature of this report highlights the importance of the CQC’s inspections for identifying Covid-19 practice breaches and failings across all the sectors it regulates. As a result, its findings will no doubt cause further concern around the CQC’s decision to suspend inspections at time when the regulator arguably needs to be taking more action to ensure its registrants are complying with the proper regulations and guidance.

Once the CQC inspection programme resumes in full, it will be reveal- ing to see the volume of further failings that are uncovered and how long they have been allowed to happen.

HAVE SOME CARE PROVIDERS TURNED AGAINST THE CQC SINCE THE PANDEMIC STARTED?

The Government has come under the most fire with respect to their approach to care homes during the pandemic, however the CQC’s response has also been put under the spotlight, particularly throughout May.

On 4th May, an open letter was sent by legal firm Leigh Day on behalf of 11 organisations which support older people, threatening legal action against the CQC and raising concerns that by suspending inspections, the regulator was breaking human rights and equalities law, via breach of its statutory duties under the Health and Social Care Act 2008.

On top of that, the Relatives and Residents’ Association wrote an open letter to the CQC on 22nd May, expressing its disappointment at the role played by the CQC during the pandemic and accused it of fail- ing to protect care homes. In addition, the Association raised concerns about the regulators failure to “represent the voice and needs of the sector for PPE, testing and tracing, and other much needed resources”, as well as failing to report the true death toll to ministers.

To add even further fuel to the fire, The Guardian then ran an article on behalf of families of the residents of care homes, calling for an urgent restart to statutory inspections.

Such a strong backlash is demonstrative of the feelings of abandonment from the CQC by relatives of care residents and care providers themselves. The CQC were not the only body to receive criticism, as influential figures in the sector such as the National Care Association executive chairman went after the government strategy to protect an overwhelming of the NHS – saying care homes were “left completely abandoned”.

It has brought about questions of faith in the CQC from the care industry, and there is a definite cause for concern that the care regulator will come under even more serious scrutiny in due course. Many in the sector felt that – at the very least – payment of fees should have been suspended whilst inspections were no longer taking place.

HOW DOES THE CQC’S APPROACH COMPARE TO REGULATORS IN SCOTLAND AND WALES?

To put the CQC’s approach to the crisis in context, it is worthy of comparison with the reaction of care regulators in Scotland and Wales.

The Scottish independent care regulator, Care Inspectorate, announced on 13th March that it would cease inspections but promised a significant increase to level of contact with care homes. Unlike the CQC, payment of registration fees was suspended, and service providers were no longer required to pay balance of fees due for the

2019/20 financial year until July 2020.
Inspections have now also resumed where risk is high, with a new ‘key question’ for care home inspections added, focusing on infection prevention/control, PPE, staffing and wellbeing. On 8th October, a letter from the regulator also confirmed that a significant number of inspections had been carried out over the preceding months.

In Wales, where the designated care regulator is Care Inspectorate Wales (CIW), inspections were similarly suspended on 16th March. It was not until 31st July that CIW moved into its ‘recovery phase’, confirm- ing it would be returning to its full inspection program. As a substitute, the care regulator plans to undertake virtual on-site inspections to protect the wellbeing of residents. The CIW is working towards being more risk-based, responsive and intelligence-led, by seeking feedback and having close direct contact with services.

WHAT ARE THE CURRENT BIGGEST THREATS TO CARE?

Following a spike in cases and renewed lockdown restrictions, the sector is now considering how it can manage the impact of what appears to be a second wave. To date, public perception has been largely supportive of the care sector and how they coped with the height of the pandemic, generally passing blame for failings onto the government and regulatory bodies. That could very well change with a second wave, and in turn may encourage both Employers’ Liability and Public Liability Claims.

Family members who have so far been supportive of the care sector but remain unable to visit their relatives in care may not be so patient this time around, and we could very well see a spike in Human Rights type claims against the sector, particularly as inquiries are ongoing into the use of ‘do not resuscitate’ orders in care settings at the height of the first lockdown.

Another threat already having a considerable impact is the hike in insurance renewal costs, as care sector businesses are facing either huge increases in premiums and/or pandemic exclusion clauses for potential Public Liability claims. Consequently, this means care sector businesses are even more cautious about allowing visitors to see their relatives. Particularly for smaller businesses, this can present a serious threat to their business viability – insurance cover is crucial, as how can they survive if a Public Liability is made and they have no cover? Many will be looking to government intervention for support.

The pandemic has already had a massive impact on the financial stability of the care sector, particularly with low occupancy, and these new problems make viability in the sector even more difficult for the majority of providers.

How important will the promised government relief package prove to care homes, or does more need to be done?

On 13th May, the Government announced an additional £600 million to support providers through a new adult social care infection control fund. To summarise, this is designed to provide:

• Additional PPE and care infection training for staff
• Reduction in workforce movements, via subsidy of staff wages
• Comprehensive testing for all residents and staff
• Capacity to quarantine residents that require isolation
• Additional NHS clinical support via primary and community support
• National recruitment campaign, to attract a further 20,000 people into social care
• Oversight and compliance by local authorities, to help implement care support plans
• Extra funding to local authorities

Only time will tell if this relief package will be enough. The care sector is a diverse one, that ranges from small privately-owned care homes, to large corporates, local authorities, charitable institutions and domiciliary care. Regardless, they have a shared task and responsibility: to care for the most vulnerable people in our society.

Problems are still prevalent across the sector and the CQC has a responsibility to ensure all care providers can work competently towards that shared goal. Whilst inspections are now resuming, albeit in a different form, basic mistakes are being made. At the time of writing, inspectors are still not being tested for Covid-19 prior to inspections, despite the primary traced source of infections being care sector staff members that attend multiple care settings.

Considering its failures and conduct throughout the pandemic, the future of the CQC must surely be in question. It will be interesting to see whether it is reinvented in a similar manner to Public Health England (PHE). There are many threats to the future of care, and we will feel the impact of the pandemic on the care sector for many years to come, as we look to protect the future of care and the most vulnerable in our society.

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