Empowering The Health & Social Care Sector
Key Contact: Jon Lawley
Author: Jenny Wilde
Vulnerable people put their trust in providers of health and social care services every day. Trust to deliver quality services, be treated with respect and to be protected from risk of harm and abuse. The whole objective of providing care is to meet the expectations that that trust creates.
In being formally registered to deliver care and execute those duties to service users, providers, in turn, must be able to trust those who also have a stake in that care, most notably their regulator and commissioning authorities. Those are the bodies that will review, assess and effectively grade their service. That outcome will contribute significantly to the commercial success and reputation of a service. But what happens when those stakeholders fall short? When those reviews and assessments are not proportionate, fair or reasonable? How can providers be sure that these government bodies are acting appropriately and how can they be held to account when outcomes are simply not right?
Many providers feel compelled to go along with the decisions of their regulator or commissioning authority – however – it is more important than ever to speak up when something just doesn’t feel right or a provider feels that the body is simply not functioning as it should.
CQC, Ofsted, Care Inspectorate (Scotland) & Care Inspectorate Wales
Health and social care services based in England, Wales and Scotland are inspected and rated by each nations’ respective regulator. Reports are produced and published, and ratings given to each service. This information is then placed in the public domain and is considered by prospective service users, their families and commissioning authorities when making decisions about which service to use. Many commissioners have a minimum rating that they require in order to place people at certain services. On that basis, it is crucial that the final report is a fair reflection of the service.
Whilst the hope is that a system of inspection would pick up on positive aspects of a care service, recent times have seen regulators becoming more risk based in their assessments and reactive to negative information they receive about the service in question (most notably the CQC, which is in the process of updating its system of inspection to be more reactive and “real-time”). This does not always result in a fair or truly representative report.
Each regulator has its own system of factual accuracy checking when a draft report is issued. It is important to review these drafts carefully and highlight any areas that need to be corrected. After all, this report is a service’s best marketing tool and will be available for review in perpetuity. Robust evidence should be provided where actual errors or misjudgements have been made. It is also important to question where personal opinion appears to have been applied by an inspector. Regulatory inspectors are subject to internal report writing and inspection procedure guidance, so when it seems like they have fallen short of their duties, this should also be challenged.
If adverse or incorrect inspection findings are unchallenged then they will be taken as fact, not only by the public, but also by any person dealing with the matter later down the line should the case worsen (for example, a judge in the Care Standards Tribunal). It is important that challenges are made contemporaneously when the formal opportunities arise.
It is also important to challenge poor conduct of the regulator as and when required. There have been many occasions in my experience where inspectors have behaved unreasonably or unprofessionally either in their interactions with staff members or service users. It is vital that these incidents are formally raised through each regulator’s formal complaints system so that it can be set on record that there was a negative or inappropriate approach to the inspection (which could later result in an unfair or inaccurate report).
There has been a marked increase in recent months in general enforcement action and prosecution against providers by the CQC. It is crucial that any case which is ill-founded or simply not based on fact, be challenged before it escalates. Enforcement action can easily snowball into full tribunal proceedings if not dealt with effectively in the first instance – especially if a provider disagrees with the basis of that activity.
Many providers place blind trust in their regulatory inspectors to deliver accurate and fair reviews and reports. Many more are not aware that any discrepancies can be challenged. Inspectors are not infallible, and it cannot be guaranteed that they will always operate impartially or with regard to all available evidence.
Historically, providers feel that challenging their regulator will compromise the integrity of future inspections, risking their inspector’s impartiality and general attitude towards a service. However, what is more likely to happen after a robust challenge is that an inspector will note that the provider will not simply accept poor practice and that future inspections should be conducted more carefully and fairly. This will only have positive outcomes in the long-run.
Providers should not feel inhibited in standing up to the regulator, especially when their commercial viability and reputation is at stake.
Interaction with the commissioning authority will centre largely around two main areas, namely, that particular commissioning authority’s safeguarding team and contracts that providers have in place with each authority.
Given that a commissioning authority will be a care provider’s major customer, it is crucial that those relationships are positive, however, there are multiple scenarios where this can sour at a rapid pace.
I have seen dozens of clients subject to opaque and aggressive safeguarding action over the years. This usually starts with contact from the commissioning authority notifying the provider that there has been an allegation of abuse and that this is being or, indeed, has been investigated. Often no specific information is given about the nature of the allegation which prevents the provider from doing its own investigation or taking disciplinary action against the unknown perpetrator. This also has the potential to leave a risk to vulnerable people unaddressed.
Safeguarding investigations can be incredibly difficult for providers. commissioning authorities, quite rightly, have a duty to thoroughly investigate, but how can a provider ensure that the commissioning authority acts in a reasonable, transparent and proportionate way? Whilst getting to the bottom of any allegation of abuse is crucial, doing so efficiently with as little impact on the service user in question and the service itself is also vital.
I always recommend that providers are proactive in the way that they engage with safeguarding investigations. Managing the information that is being reviewed, as well as the personalities involved in the investigation, can help to get to a clearer conclusion more quickly. That is in everyone’s interests. In addition, having an open dialogue about what evidence is required can ensure that the commissioning authority has a full picture of all aspects of the incident and the measures that the provider had in place at that time.
The outcomes of safeguarding investigations can lead to conclusions that health and social care providers have abused those they look after. This can cause the commissioning authority to share uncorroborated information with service users and their family members, suspend placements (through embargo), cancel contracts altogether and remove residents from their homes. In some situations, I have seen such punitive action taken before any allegation has actually been substantiated.
As such, the stakes are high and providers need to ensure that the commissioning authority is closely monitored and capable of conducting a fair and balanced review.
Providers must have as much information as possible on the circumstances of a matter (and had sight of any evidence) before they attend any proposed safeguarding meeting. Otherwise, this will be a circular meeting where the commissioning authority simply fires uncorroborated information at the provider who will have no meaningful way of responding without consideration of documentation that is sitting at the service. An agenda should be requested before attending any meeting.
It is important to carefully manage the conduct of the commissioning authority because its conduct can have serious influence on the approach of the regulator who is likely to consider any allegation of abuse or whistleblowing referral as fact.
Most contracts between care providers and commissioning bodies will include provision on quality assurance. This can feel, to many providers, like a duplication of the scrutiny applied by their regulating body. Representatives from the commissioner will visit the service and assess the quality of a service against its own criteria and obligations set out in the contract. I have seen multiple occasions where the regulator’s interpretation of the quality of a service and the commissioner’s assessment of the same service are somewhat disparate. As such, it is crucial that providers understand exactly what the commissioner is looking for and what standard they are being judged against. As with safeguarding investigations, the consequences of being regarded as not meeting the standard required through the contract can result in suspension, removal of service users or even overall termination. Again, very high stakes and so the provider needs to be sure that the officers conducting the reviews are acting fairly and proportionately, correctly understanding the care that is being delivered and that they are impartial. I have been involved in many cases where a commissioner has historically expressed dissatisfaction with personnel or general approach by a service and has used the quality assurance process to penalise a service or justify a move away from placing service users there.
On this basis, it is really important that providers understand what is being reviewed and the criteria against which its documentation and care delivery is being reviewed. Providers should make sure that commissioning officers fully understand the records and methods of care delivery and that any questions or concerns are addressed in real-time. Often the regulator and the commissioner will have different findings and judgements on the same item- a classic example being care plans. This should be carefully considered by providers when presented with final outcomes.
If there are significant concerns with a quality assurance visit, be it the conduct of the officer or the resultant report, then providers should feel empowered to make their concerns known and ensure that the final outcome is fair and reflective.
In conclusion, there are a number of checks and balances that providers are subject to. These are undoubtedly necessary, but they must operate in such a way that promotes consistency, fairness and proportionality. Providers should feel empowered to make sensible challenges, backed up by evidence. Where those challenges fail, serious consideration should be given to the instruction of a legal representative to prevent the matter from escalating and having a long-lasting, costly and highly destructive impact.