Could 2024 Be The Beginning Of A New Dawn?

Print Friendly, PDF & Email

Could 2024 Be The Beginning Of A New Dawn

Author: Jenny Wilde

Key Contact: Jenny Wilde

Looking Ahead To Upcoming Themes And Trends In The Health And Social Care Sector

CQC – changes in the law and inspection regime

We are now all well-versed in the upcoming changes to the CQC’s inspection regime. There are increasing numbers of the new, short-form inspection reports appearing on the regulator’s website and 2024 will be the year that all providers are brought under the new umbrella – and the year that we see whether yet another one of Ian Trenholm’s digital gambles pays off.

Whilst the streamlined system and more remote approach to inspection could have a positive impact on providers, there are also potential danger zones. These include concerns about challenging dynamic rating changes, conveying positive examples of care through the provider portal and making sure that services are fairly reflected through the new scoring system. My prediction is that more dynamic, risk-based regulation could lead to an increase in CQC prosecutions, especially as the very binary scoring system could trigger such a response (think “computer says no”).

As you may already be aware, figures show that compared to the pre-pandemic regulatory era (2017 – 2019), CQC prosecutions have increased by 50% in the period 2020-2022, rising from 30 to 45. Furthermore, the average fine is now more than £550,000 compared to £160,000 pre-pandemic, amounting to a 242% increase.

A lesser-known change relative to the CQC is an amendment to the legislation that underpins the services provided by those who are registered.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023 will come into force on 6 April 2024.

They amend the existing regulated activities regulations by inserting a new regulation (9A) in the area of “Person Centred Care”. This provision sets out a new fundamental standard concerning visiting and accompanying in care homes, hospitals and hospices.

This new regulation provides that, unless exceptional circumstances exist, service users (a) must be facilitated to receive visits (b) in respect of care home residents, must not be discouraged from taking visits out of the care home, and (c) in respect of hospitals and hospices where there is no overnight stay, must be enabled to be accompanied by a friend/family member/other supporter.

The CQC will be keen to test compliance with this regulation. It may seem like an unnecessary legal enshrinement of existing practice, but providers should be careful to specifically address this requirement in care planning documents in order to evidence that the obligations around visits are being met.

A change in government

One thing that we know for sure is that by 28 January 2025, there must be a General Election. Odds are, this will happen in May 2024.

As the Conservative Government enters its 14th year of power many will be looking for new leadership to devise and implement strategies that will repair the damage of Brexit and COVID-19. The likelihood is that this will result in a Labour Government – so what will this mean for the health and social care sector?

Given the economic difficulties facing the UK, the Labour Party appears wary of making uncosted or unaffordable pledges or any detailed spending commitments when trying to be seen as a sensible, serious potential government. At the Labour Party Conference in October 2023, Wes Streeting, shadow health and social care secretary, told attendees, “Reform is even more important than investment. Because pouring ever increasing amounts of money into a system that isn’t working is wasteful in every sense. A waste of money we don’t have.”

The number of local authorities on the verge of or in the mire of bankruptcy is likely to increase and this could have a significant impact on fees paid to care services.

There have been murmurings of a proposed National Care Service in addition to Labour’s opaque plans to reform the NHS, but one thing is clear, there is no bottomless pot of money to make the necessary changes. My obvious prediction is that under a Labour Government the needs of an ageing population requiring costly complex care will increase and there will be a continuation in the privatisation of elements of the NHS and increases in taxation to fund those services.

Whichever party comes to power after the next General Election must engage meaningfully with key figures in the health and social care sector to determine what is needed on the ground and how health and care can most effectively work together.

International recruitment

The last three years have been difficult for providers trying to recruit staff. Many of my clients have reported that whilst this has now improved, they still face challenges in trying to recruit nurses and Registered Managers.

The staffing crisis had been eased by changes to the salary thresholds of the Health and Care visa which led to more than 140,000 care workers and their dependents arriving in the UK in the year to September 2023.  This saw staffing levels return to a pre-pandemic norm.  

However, in December 2023, the Health and Care Worker visa rules were changed, so visa-holders are no longer able to bring their dependents to the UK.  This will take effect “as soon as possible” in the New Year (the Government’s language – not mine).

This will inevitably discourage overseas workers from travelling to the UK to work in the health and care system, as they may be less inclined to leave their families behind.

The impact of these changes remains to be seen but it is yet another frustration for a sector already in recovery.

In addition to this issue, the CQC has made clear its intention to focus on the risks around modern slavery in the health and social care sector. This means that providers should be vigilant about collecting the correct employment documentation and ensuring that the agencies that they use are reputable and provide all necessary assurances about staff.

A more compassionate regulatory approach in the wake of the death of Ruth Perry

The sector is familiar with the tragic case of Ruth Perry, the headteacher who took her own life in the wake of an Ofsted inspection which a coronial inquest determined was “lacking fairness, respect and sensitivity” and was at times “rude and intimidating”.

On 1 January 2024, Sir Martyn Oliver (Ofsted’s new Chief Inspector), announced that Ofsted would be halting all school inspections until the end of January, whilst staff received “immediate training and support” on alleviating the stress put on teachers during inspections.

It is not clear if this pause on inspections will extend to children’s social care services, which are also regulated by Ofsted or of those inspectors will also receive the training.

Sir Martyn’s assessment that the regulator needs to be more empathetic will be welcomed by schools and providers across England.

The public outcry which followed the case of Mrs Perry was tangible and my prediction is that Ofsted will be keen to work more reasonably and compassionately in order to avoid any repeats of what can only be described as a serious blow to the public’s confidence in its ability.

My view is that this much needed focus on empathy and reason will extend across to Ofsted’s regulatory sister, the CQC. As a regulator that thrives on public perception, I believe that the CQC will seek to mirror the difficult learnings that Ofsted has been faced with and invest time and resource in ensuring that its staff do not repeat the same mistakes as the inspectors that visited Caversham Primary School in January 2023.

Growth in the use of technology in social care

As noted above, the CQC’s new inspection methodology will be more “arm’s length” and largely conducted through a Provider Portal where documents will be uploaded and assessed (with or without an accompanying onsite visit).

This change in approach will drive the need for providers of social care services to “go digital” if they want to maximise the way that the regulator reviews their evidence of compliance. As has been widely reported, the Government’s aim is for 80% of CQC registered providers to keep digital social care records by March 2024.  

Many providers have already embraced these changes and are fully engaged with digitalisation, however, those with smaller services and less money to spend may struggle. Providers are best advised to seek assistance with digitalisation and engage with the many free resources out there. Whilst there is no law change around the continued use of paper records, it is clear that the CQC may take issue with their continued use and reflect this in any inspection findings. If that does happen, providers would be encouraged to challenge any adverse findings on the basis that there is no legal requirement to “go digital” – however, paper records must be accessible enough to be send through a portal for CQC review. Failure to be able to easily provide documents electronically means that providers risk not being able to fully reflect their service during a remote inspection.

In addition to the basics of document presentation to the regulator, providers should keep abreast of all advancements in technology, particularly around wearables and other monitoring devices, as well as AI development which could assist with analysis and assessment of risk.

In short, it is important that the sector moves at the same pace as the growth of technology but this will clearly require serious investment of funds and time. My prediction is that many will want to embrace the development of technology but those struggling with funding or ongoing compliance issues may struggle to do so. The government needs to focus resource on helping all providers to make this step as there will be inevitably positive impact on the NHS (as more people will be more effectively cared for within care home and domiciliary care settings).

Conclusion

The new year brings a new dawn and whilst this does include some significant changes and risks to look out for, providers should not be fearful. Engaging properly with the new regime and advancements in technology should ease pressures and create new ways of working.

Where regulators fall short, providers should be empowered to challenge – that mantra has not changed.

More difficult issues around the unpredictability of government funding and the impact of immigration law should be managed with care and pragmatism. Where fees are not appropriate, this should be challenged head on and the risk of under-funding put clearly on the record.

There are many positives ahead for what feels like a new, post pandemic era but some may be concerned. My advice is this, if providers continue to put services users at the heart of everything they do and record that clearly, then you can’t go far wrong.

If, irrespective of that, you still face challenge, do not be afraid to speak up and put your own position forward. If 2023 has taught us anything, it is that the regulator and local authorities are not infallible.

For more information about the Healthcare Regulatory support available at Acuity Law, get in touch.

Recent Posts

Commercial Dilapidations and Fixed Recoverable Costs
Commercial Dilapidations And Fixed Recoverable Costs
February 28, 2024
Court Of Appeal Grants Anti-Suit Injunction In First Of Three RusChemAlliance LLC Cases
February 27, 2024
Top Tips For Inside A Commercial Courtroom
February 23, 2024
SAM litigation
Bank Agrees “Commercial Settlement” Over Shared Appreciation Mortgage (SAMs) Products
February 19, 2024
Hugh Hitchcock The Lawyer Hot 100
The Lawyer’s “Hot 100”: Hugh Hitchcock
February 14, 2024
The Use Of Artificial Intelligence In Courts And Tribunals
February 13, 2024

Archives

Categories

Skip to content