Short-notice care home closures

Legal issues

Local authorities have clear legal duties when undertaking a home closure and it is important to get the process right for residents, families, staff, the owner and the public.

We wanted to make sure that the way we are doing it (is set out) clearly, minimising risk for people. We wanted to make sure primarily that we were protecting individuals, but also that we wouldn't fall foul of the law

Local Authority DASS

• Underpinning legal responsibilitiesOpen

  • There is no legislation specifically defining the powers and responsibilities of local authorities or NHS bodies during care home closures but there are many legal frameworks (see below) that need to be adhered to.
  • Commissioning authorities need to comply with the statutory duty to safeguard the needs and welfare of all residents in care homes affected by circumstances that may interrupt their continuity of care.
  • Local authorities need to recognise that their statutory duties apply equally to all residents whether they are self-funded or publicly-funded and regardless of which local authority has placed them there in accordance with Ordinary Residence Criteria.
  • When working with people who might lack mental capacity to decide for themselves where and how to live the Mental Capacity Act 2005 applies.
  • Local authorities should consider their powers under the Local Government Act 1972 (and subsequently updated in 1999, 2000 and 2003) to incur expenditure to resolve a crisis situation.
  • Local authorities need to abide by the National Assistance Act 1948 and the NHS and Community Care Act 1990 which set out the key statutory duties in respect of the provision of accommodation and the assessment responsibilities.
  • Local authorities need to ensure that they work towards preventing escalating concerns developing (and home closures potentially occurring) by putting in place quality control and monitoring systems as part of their approach to commissioning.
    
    

  See examples and tips for more information.

• Commissioning authority requirementsOpen

  • Local authorities are required by the duty of care invoked when they commission placements to be proactive in monitoring service delivery, safety and performance of care providers and managers.
  • Commissioning authorities owe a duty of care to all residents regardless of whether their placement is funded privately or publicly, and all must comply with human rights legislation, particularly in regard to safeguarding someone's privacy and dignity.
  • Local authorities need to ensure the safety and wellbeing of residents as where there is a failure in the provision of care which causes suffering, this can constitute a breach in duty of care and could amount to a criminal offence being committed by the home.
  • Local authorities must undertake the transfer of residents to alternative accommodation in accordance with safeguarding procedures, good practice and due diligence within the law.
  • Where people do not have the mental capacity to make decisions without support, local authorities must pay particular attention to the requirements of the Mental Capacity Act (2005) in situations which involve the transfer of residents.
  • Local authorities have a duty to instruct independent mental capacity advocates (IMCAs) where accommodation arrangements are being made on behalf of a person lacking mental capacity and without friends or family.
  • In the case of insolvency, and where an administrator has been appointed, the council must engage with the administrator under provisions of administration and/or receivership (see 'Administrative receivership' under 'Legal issues - examples and tips'). The administrator's principal objectives to stabilise the business and optimise attempts to sell it may, however, differ from the commissioner's primary requirements to ensure continuity of care and the best outcomes for residents.
  • Local authorities need to adhere to the choice directions where individuals are moving location as a result of a home closure and where choice is constrained by availability, suitability and the provider's willingness to accept contract terms.

  
  

  See examples and tips for more information

• Legal responsibilities in practiceOpen

  • Local authorities need to be able to draw on basic guidance on what can and can't be done, and the legal basis for it.
  • Local authorities need to identify and consult immediately with the lead people within the commissioning authority who have expert knowledge of legal parameters and, ideally, previous experience of dealing with 'unsteady state' situations.
  • Local authorities need to be familiar with the relevant clauses and sections of the legislation that govern a commissioner's activity.
  • Local authorities need to cascade the knowledge of the legislation and ensure that staff involved in emergency transfers (such as the local response team) understands the requirements, and the sequence of activities that need to occur.
  • Local authorities need to understand the roles and responsibilities of each of the partners in the area and what governs their activity, including the role of the regulator.
  • Local authorities need to appreciate the legal rights of some agencies - for example, police, UK Border Agency, Care Quality Commission (CQC), to enforce, deal with 'breach of the peace',  and - in cases where a commissioner's staff face hostility and antagonism in carrying out their statutory duties - provide police protection in volatile situations.
  • Local authorities need to try to ensure that their contracts make suitable provision to 'step in' where necessary to have access to the premises for the purpose of continuity of care and, furthermore, lay a requirement upon care providers to cooperate.
  • Local authorities will need to ascertain the legal status of residents and their financial circumstances as part of the assessment and care planning process.

  
  

  See examples and tips for more information

Examples and tips

Examples of what others are doing plus materials they have developed and useful tips.

Legal Issues - examples and tips sections

Key points from policy and research

Whilst there is little specific research on this topic, all legal advisers point commissioners to key policy documents and the legal frameworks that underpin them, for example:

• 'No secrets' (DH 2000) sets out the policy framework and requirements for safeguarding vulnerable adults. A major consultation exercise on whether and how policy and legislation should be updated was undertaken in 2007, but no major changes have yet taken place.
• The Office of the Public Guardian published various booklets to explain the provisions of the Mental Capacity Act 2005 and the responsibilities of people taking on the roles under Lasting Power of Attorney and the Justice Department
• Data Protection Act 1998
• Freedom of Information Act 2000

What the regulator says

• Commissioners should make contact with the Care Quality Commission (CQC) at the earliest opportunity. The Commission will provide information about the compliance status of the provider and any action it is taking under its information sharing protocols, in line with the requirements of the legislation.
• CQC will work with the service provider, commissioners and other stakeholders to promote and protect continuity of care (although the provision of care is not directly CQC's responsibility). This will include consideration of the requirements of the legislation, regulatory requirements and any specific response which is required during a crisis period. 
• During any transition period the focus of CQC will be on ensuring that the essential standards of quality and safety continue to be met and people using services continue to be safe. The Commission has a range of powers which are applicable to different scenarios so early engagement with and involvement by CQC are essential.