Short-notice care home closures
Intelligence and information sharing: Examples and tips
Examples of what others are doing plus materials they have developed and useful tips.
Market failure occurs when the current supply is no longer able to meet demand and can be caused by a variety of economic and environmental factors. Chief amongst these relate to occupancy levels and the price paid for care. All providers operate within certain margins and if occupancy levels fall below a level, and therefore when income is insufficient to meet outgoing expenditure, those businesses are vulnerable to collapse. It is not unknown for banks, for example, to give only two hours notice of foreclosure, in extreme cases. Many providers do not share this risk with their commissioner in case lost confidence leads to even fewer placements, so the news of the business failing becomes a high-priority crisis.
The commissioner has a responsibility to try to understand these pressures and to ensure that no behaviour of a major purchaser such as the local commissioning authority, jeopardises the stability and viability of local business. Where necessary, however, and especially in the case of poor quality of care, or the wrong type of provision, a commissioner may need to make intervention.
Other changes in market provision can be stimulated by proactive structuring by using the intelligence gained from market and joint strategic needs analysis.
Market intelligence - the development of a common and shared perspective of supply and demand (including any gaps in provision) leading to an evidenced, published, market position statement for a given market. This involves commissioners having an understanding of their market place by routinely updating their knowledge of the provider market in accordance with the data gathered for example in a market intelligence checklist
Market structuring - the actions commissioners take in order to deliver the kind of market considered necessary to meet the needs of any given community; this will include stimulating new providers into the area, or encouraging existing providers to diversify. It covers the activities of commissioners designed to give any market shape and structure, where commissioner and provider share data to formulate business development plans for the future and would additionally impact on the behavioural relationships between commissioners and providers, for instance to be one of more mutual reliance than an adversarial stance.
Market intervention - related to market structuring, but where commissioners may need to take specific and direct action to stimulate new provision to meet identified needs, or to disinvest in provision that no longer meets those needs. It calls upon the commissioner to exercise negotiation powers to encourage new provision and decommissioning and disinvestment strategies to discourage forms of provision that are no longer needed.
Home closures: Some key questions Open
1. Q: Where Care and Social Services Inspectorate Wales (CSSIW) is aware of welfare concerns about service users or a planned voluntary closure or is itself anticipating an enforced closure, does it have any legal power to inform a local authority? Does it have a legal duty to do so?
A: If CSSIW is aware of a planned voluntary closure or has concerns that might lead to an enforced closure, it would inform the local authority in which the home was situated in line with its published protocol. It is expected that that authority would notify any others that were sponsoring service users in the home. As with any other decision by any public body, this decision - if for example it were to threaten the financial viability of the home - would be open to challenge through Judicial Review. CSSIW could, if need be, point to its general duties under Section 8 of the Care Standards Act 2000 and section 92 of the Health and Social Care (Community Health and Standards) Act 2003 to encourage improvement in the quality of social care services and the provision of Welsh local authority social services, taken with its general wellbeing powers under section 60 of the Government of Wales Act 2006. CSSIW would need to be prepared to demonstrate, if required to do so, that it has exercised its functions reasonably.
2. Q: Where the local authority has serious concerns about a care home, does it have any legal power to disclose its concerns to CSSIW or to a local health board (LHB) - even if it means disclosing personal information about service users?
A: Where the local authority has serious concerns about a care home it has a duty to share information about concerns affecting vulnerable adults with CSSIW or to an LHB and any other involved statutory bodies - even if this means disclosing personal information about service users. Any disclosure of personal information to CSSIW or to an LHB would need to be considered against the authority's duties under three legal frameworks, these are:
• the common law duty of confidentiality, which still applies where the issue is not determined by other legislation
• the Data Protection Act 1998
• Article 8 of the European Convention on Human Rights, the right to respect for privacy.
In considering disclosure of personal information, the safest course is to always secure the consent of the service user concerned (the data subject under the 1998 Act). Alternatively, the consent of a donee could be sought where the data subject is unable to give informed consent, the donee has a lasting power of attorney and the authority clearly covers such circumstances. Where consent is not available or has been withheld, the 1998 Act still provides for disclosure to safeguard the vital interests of the person - or to safeguard the vital interests of someone else. In disclosing information the best interests test in the Mental Capacity Act 2005 would also have to be applied. Where there is any concern as to powers to disclose personal information, legal advice should be sought. Next of kin should of course be consulted.
The ECHR Article 8 right to privacy is qualified. In a case involving the death of a resident in a nursing home, the courts accepted that sometimes disclosure was necessary in a democratic society for the protection of health or morals or for the protection and rights of freedoms of others.
(Source: Older People and Long Term Care Policy Directorate, Welsh Assembly Government)
Possible structural arrangementsOpen
Joint Inter-agency Monitoring Panel (JIMP) and Home Operations Support Group (HOSG)
Statutory bodies will need to ensure that they have arrangements in place for a joint inter-agency monitoring panel (JIMP) to lead the escalating concerns process and arrangements for direct operational management for a care home closure (HOSG). The JIMP will be responsible for DAPs and CAPs.
There are several ways in which statutory agencies can discharge their statutory responsibilities in relation to escalating concerns within homes and in relation to homes that are closing. Whilst it is ultimately a matter for local authorities and local health boards to decide how they discharge these responsibilities, they are required under this statutory guidance to have jointly agreed local arrangements in place to manage escalating concerns and closures. They must also be able to demonstrate the robustness of those arrangements.
Where there has been a home closure the JIMP and HOSG will meet to evaluate the whole closure process and to identify lessons learned. The Chair of the JIMP will prepare a report on the home closure. A copy of the report must also be provided to CSSIW.
Developmental & Corrective Action Plans
The following paragraphs describe a proactive and reactive framework to secure immediate improvements in care provision and also to respond to intermediate or longer term issues or concerns. This guidance requires local agencies to develop structures in line with the following arrangements.
A Development Action Plan (DAP) may be required where care management, contract monitoring, complaints monitoring and/or other sources of information indicate a short fall in the quality of service provided and statutory agencies want to see the service moving forward in specific areas of quality and practice.
A Corrective Action Plan (CAP) will be required where immediate action to ensure the safety of service users and/or staff is needed. This would be indicated in situations where a delay in taking preventative or remedial action could result in the need for enforcement action and cancellation of registration.
Corrective and Development Action Plans may also work alongside each other where preventative or remedial action is required to target critical areas of performance and other short falls that require focused or in-depth consideration and action.
The use of CAPs and DAPs do not replace compliance notifications instituted by CSSIW. It is critical that agencies understand their distinctive roles and responsibilities in respect of poor performance and/or breaches in regulations or standards. Local authorities and health services must act within the sphere of their own roles and responsibilities. For example they can take specific action in terms of breach of contract or poor performance where necessary.
CSSIW is principally concerned with compliance by registered providers and managers with national regulations and standards, and enforcement in respect of breaches of statutory provision and of national regulations by registered providers and managers. CSSIW holds a range of enforcement powers to call on through both criminal and civil routes. CSSIW will also encourage improvement in services in line with national regulation. It is not the role of CSSIW to lead on work with providers which is designed to ensure that local service specifications or contractual terms and conditions are met.
(Source: Older People and Long Term Care Policy Directorate, Welsh Assembly Government)