The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
[media id=653]Well, we can all feel inadequate on a bad day and it may sound a bit of an old advertiser’s cliché, but in this case it can have disastrous long-term effects.
The CQC’s Key Lines of Enquiry (“KLOES”) rates services as Outstanding, Good, Requires Improvement or Inadequate. According to the new “Fundamental Standards of Care” only Good is good-enough when a service is judged against the legal service compliance standards. Anything less will be judged to be a breach of the Regulations. Some form of “enforcement action” is likely to follow either immediately or if improvements are not made.
The CQC’s “Special Measures” regime for failing adult care providers only started in earnest on 1 April 2015 but we are already seeing some very serious outcomes. I have been comparing the situation with the special measures regime for NHS Trusts, which started in 2013/2014 and for GP practices in 2014/2015. By 31 March 2015, 14 Trusts and 10 GP practices were in special measures. The Doctor Foster organisation has concluded that special measures have generally had a positive effect on the 11 NHS Trusts. I am concerned that a very different situation may emerge for adult social care services.
It seems to me that the risk with the CQC enforcement of Special Measures for adult social care is that it is an automatic process. If a service rates one inadequate line of service on an inspection it will be re-inspected within six months and if it then gets another inadequate finding, even for a totally unrelated matter, it will trigger special measures that may put the service into terminal decline due to reduced income, local authority concerns, negative local media publicity and loss of consumer confidence. We have already advised a number of clients who have closed services very quickly that the threat of Special Measures has arisen. This is understandable given the cross-contamination that might occur and affect how other services are perceived.
If you run more than a handful of registered services there will always be problem services from time to time. Often the difficulties causing a service to struggle arise from a number of different sources and cannot be solved quickly. In the past failing services might have drifted along. Now complacency may be severely punished by the consequences of getting into Special Measures.
It is vital that any “Inadequate” findings are addressed immediately and in depth. A proper response may include:
- challenging the draft inspection report;
- launching an internal enquiry;
- seeking external support on the approach required to rectify the problem and monitor it;
- seeking support from positive residents and service users;
- addressing similar weaknesses in other registered services;
- addressing personnel issues;
- finally, consider closing the service and re-registering by way of a fresh start.
For further information or to comment on this article, please email John Wearing
John Wearing leads the Anthony Collins, health and social care team and is a leading UK expert in his field. He advises many well-known care providers on strategic issues concerning good governance, risk management, portfolio development and the transfer of care assets.
Anthony Collins Solicitors LLP is recognised as one of leading law practices in the health and social care arena. The firm has strategic partnerships with NCF, UKHCA and VODG among others and acts for many charitable and private sector organisations providing care for older people and disabled adults across the UK.
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