Increased Scrutiny and Accountability in the Care Sector · 2019-04-02 · Beware of the Court of...

Increased Scrutiny and Accountability in the Care Sector

18 February 2016| Laura Guntrip

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Dispute | ResolutionToday’s business world is extremely diverse and full of legal complexities.

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HEALTHCARE

Scrutiny and Accountability

Increased public awareness

Increased public appetite to stamp out poor practice and hold poor providers to account

Increased scrutiny

Tougher new powers for regulators

Regulators need to be seen to be taking action

New regulators and new risks to providers emerging

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HEALTHCARE

CQC and Local Authorities

CQC Tougher enforcement powersAbility to prosecute without first issuing a warning noticeRe-introduction of ratings Special MeasuresFocus on services without Registered ManagersIncreased use of urgent enforcement powers and prosecution

Local Authorities Safeguarding investigations Contractual action

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HEALTHCARE

Professional Regulators

Nursing and Midwifery Council Annual Report 2014 – 2015:Overall increase in complaints – over 10%5,183 complaints in 2014/2015Number of referrals from members of the public increased by 47% in 2014/2015Biggest referrers to NMC are still employers (40% of referrals)Patients and members of the public second most common (29% of referrals)Steep increase in allegations of misconduct Decline in striking off orders

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HEALTHCARE

The Insolvency Service

New regulatory threat to directors of care companies

Much wider implications for directors personally and much more restrictive

June 2015 – investigation into Castlebeck following Winterbourne View

Found that Neil Cruickshank, the Managing Director, had failed to ensure that the company and its employees were following the company’s policies and procedures

Mr Cruickshank was disqualified from directly or indirectly becoming involved in the promotion, formation or management of any company, in any sector, for 8 years

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HEALTHCARE

The Media

The media has arguably been the most effective regulator in holding providers to account and in ensuring that good and safe care is provided Media exposed abuse: Winterbourne View, Stafford Hospital, Orchid View, The Old Deanery Media exposed scandals have prompted increased use of surveillance, significant changes in the Regulations and criminal law and have increased not just the accountability of providers but also their administrative burdenCQC has toughened its regulatory response due to its continuing concern about media exposureBeware of the Court of Public Opinion

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HEALTHCARE

The Police

New offences against care workers and care providers

Increased use of existing offences – e.g. corporate manslaughter

Increased role in ensuring care providers are held to account

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HEALTHCAREComparison of the essentialstandards and the fundamental standardsOld regulations

Care and welfare of service usersAssessing and monitoring the quality of service provision Safeguarding service users from abuse Cleanliness and infection control Management of medicines Meeting nutritional needs Safety and suitability of premises Safety and suitability of equipment Respecting and involving service users Consent to care and treatment ComplaintsRecordsRequirements relating to workers StaffingSupporting workers Cooperating with other providers

New regulations Person-centred care Dignity and respect Need for consentSafe care and treatmentSafeguarding service users from abuse Meeting nutritional needsCleanliness, safety and suitability of premises and equipment Receiving and acting on complaintsGood governanceStaffing Fit and proper persons employedFit and proper person requirement for directors Duty of candour

Comparison taken from CQC’s“Guidance for providers on meeting the fundamental standards and on CQC’s enforcement powers”, July 2014.

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HEALTHCARE

Offences

Under the 2014 regulations, some of the regulations allow for direct prosecution when the Fundamental Standards are breached

When breaches of regulations do not constitute a criminal offence, CQC can enforce the Fundamental Standards using civil powers to impose conditions, suspend or cancel a registration. If providers do not comply with the requirements under the civil powers, they will be committing a criminal offence and could be prosecuted

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HEALTHCARE

CQC may prosecute breaches of the following regulations directly without first issuing a Warning Notice:

Regulation 11 Need for consent

Regulation 16(3) Receiving and acting on complaints

Regulation 17(3) Good governance

Regulation 20(2) and (3) Duty of Candour

Regulation 20A Requirement to display ratings

A defence to these offences is available where the registered persons took all reasonable steps and acted with all due diligence (Regulation 22(4))

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HEALTHCARE

CQC can prosecute for the following offences, but only if the breach of the regulation results in people who use services being exposed to avoidable harm, a significant risk of such harm occurring or suffering a loss of money or property as a result of theft, misuse or misappropriation:

Regulation 12 Safe care and treatment

Regulation 13 (1) to (4) Safeguarding service users from abuse and improper treatment

Regulation 14 Meeting nutritional and hydration needs

For breaches of the remaining regulations not listed on these slides, CQC can take regulatory action other than prosecution.

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HEALTHCARE

Health & Safety

Transfer of responsibility from the Health and Safety Executive to CQC in deciding whether regulatory action will be taken in relation to reported incidents of health and safety involving people using services regulated by CQC

It will fall to CQC to investigate incidents such as deaths of service users following poor treatment, physical restraint, choking and falls

Memorandum of Understanding between CQC, HSE and local authorities aims to ensure ‘effective, co-ordinated and comprehensive regulation of health and safety’

Came into force on 1 April 2015

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HEALTHCARE

Manslaughter

Involuntary manslaughterGross negligence Unlawful or dangerous act

Corporate Manslaughter – it is an offence if the way in which the organisation’s activities are managed or organised by its senior management (a) causes a person’s death and (b) amounts to a gross breach of the organisation’s duty of care owed to the deceased

Sherwood Rise LimitedMaidstone & Tunbridge Wells NHS Trust

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HEALTHCARE

Criminal Justice & Courts Act 2015

S.20….ill treatment or wilful neglect: care worker offence

S.21….ill treatment or wilful neglect: care provider offence

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HEALTHCARE

S.20 Ill-treatment or wilful neglect: care worker offence

(1) A care worker commits an offence if-

(a) he has care of another individual by virtue of being a care worker; and (b) he ill-treats or wilfully neglects that individual

“care worker” means an individual who, as paid work, provides:

(a) health care for an adult or child (other than excluded health care), or(b) social care for an adult,Including an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care

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HEALTHCARE

S.21 Ill-treatment or wilful neglect: care provider offence

(1) A care provider commits an offence if-

(a) an individual who has the care of another individual by virtue of being part of the care provider’s arrangements ill-treats or wilfully neglects that individual

(b) the care provider’s activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and

(c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur

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HEALTHCARE

“Care Provider” means-

a) a body corporate or unincorporated association which provides or arranges for the provision of -

a) health care for an adult or child, other than excluded health care, orb) social care for an adult, or

b) an individual who provides such care and employs, or has otherwise made arrangements with, other persons to assist him or her in providing such care.

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HEALTHCARE

Penalties

Fine

Remedial order

Publicity order

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Laura Guntrip | Associate

Laura advises providers of adult care homes, nursing homes, supported living facilities, independent hospitals, children’s homes and schools on a range of issues. Her work includes local authority or CCG contractual disputes, disputes with residents, Court of Protection cases, safeguarding investigations, inquests and police investigations.01202 786187

[email protected]

Increased Scrutiny and Accountability in the Care Sector · 2019-04-02 · Beware of the Court of...

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