You are invited to join Pannone Corporate’s Care Quality webinar on 8 July 2020 at 10am.

The Care Quality Commission was, prior to the pandemic, increasingly active in the number of the enforcement actions taken against providers it considered had failed to meet the fundamental standards.

The ongoing presence of COVID-19 has however had a seismic impact on the Commission and its ability to pursue enforcement activity, and the long-term effects of the pandemic on its operations are yet to be clarified.

To examine developing trends within the CQC’s pre-pandemic enforcement activity, and anticipate how these may evolve over the coming months given the ongoing presence of COVID-19, Pannone Corporate made a Freedom of Information request to understand the scope and extent of the Commission’s enforcement actions to date.

This webinar will explore and analyse the results of our Freedom of Information request, as well as offering practical ideas and tools to strengthen and support your future dealings with the CQC and its Inspectors.

We are delighted to be joined by Assistant Coroner, Phil Holden, who will provide you with valuable insight into the sector and explain his views on how inquests may also be affected going forwards.
In addition, you will have the opportunity to put your questions to our expert panel and to discuss topical issues with your peers.

Places will be limited so please RSVP to susan.rigg@pannonecorporate-com.stackstaging.com as soon as possible.

We look forward to seeing as many of you as possible.

The Competition and Markets Authority (CMA) has established a new taskforce to investigate and, if necessary, take enforcement action against organisations that breach consumer protection regulations in their response to the consequences of COVID-19.  Specifically the taskforce will investigate refusals to administer refunds where goods or services have not been provided due to the disruption caused by the pandemic.

Making its position clear, the CMA stated, “Where a contract is not performed as agreed, the CMA considers that consumer protection law will generally allow consumers to obtain a refund.

The CMA expects consumers to be offered full refunds where:

• a business has cancelled a contract without providing any of the promised goods or services;
• no service is provided by a business, for example because this is prevented by Government public health measures;
• a consumer cancels, or is prevented from receiving any services because Government public health measures mean they are not allowed to use the services.

The CMA acknowledges that there are a number of other situations which may arise as a result of ongoing restrictions. It has provided the following guidance:-

• Ongoing contracts: where a business provides regular goods or services in exchange for a consumer’s ongoing payment, a refund should be offered for any services the consumer has already paid for but which cannot be provided because of current public health measures. The business  can request a contribution to its costs from the consumer until the service is resumed but this is only permissible where the contract clearly provides for this.
• Non-refundable payments and fees: the CMA considers that consumer protection legislation permits a refund to be provided even where the consumer has paid a ‘non-refundable’ deposit or advance payment. Businesses should not charge administrative fees for processing such refunds.
• Credits and re-booking: consumers can be offered credits, vouchers, re-booking or re-scheduling as alternatives (and in addition) to a refund, but consumers should not be misled or pressured into their acceptance. Any restrictions that apply to alternatives, such as time limits within which they are to be used, must also be fair and highlighted to consumers prior to acceptance.
• Future contracts: businesses should not seek payments for services they know they will be unable to provide, even after current restrictions have been lifted. By contrast, where an organisation reasonably expects to be able to provide a future service those businesses can require consumers to continue making payments.
• Cancellation by consumers for other reasons: if a contract is cancelled by a consumer because they no longer require the goods or services even if they can still be provided, consumers are entitled to a refund in line with the applicable terms and conditions so long as the terms are fair.

Conclusion

The CMA has extensive powers of enforcement if it considers that a business has breached consumer protection regulations, including:

• requesting an undertaking from a business that it will change its practices;
• issuing civil proceedings;
• seeking an ‘enforcement order’ against a business to stop the offending conduct; and
• ‘enhanced consumer measures’ which enable it to seek redress on behalf of consumers.

Whilst COVID-19 continues to cause disruption to many aspects of daily living, businesses must nonetheless be mindful of their ongoing consumer protection obligations and act at all times in accordance with the applicable regulations, or else risk intervention and investigation by the CMA.

The publication outlines the Government’s response to the consultation and details how the reforms are to be delivered. The Housing Secretary Robert Jenrick MP has described the reforms as, “bringing about the biggest change in building safety for a generation.” The proposals build on the recent Budget announcement of a £1B fund to support the remediation of unsafe non-ACM cladding materials on high-rise buildings.

Of note, the Government’s response:

– Mandates the inclusion of sprinkler systems and consistent wayfinding signage in all new high-rise residential buildings over 11m in height;
– Provides practical details as to the formation and delivery of the new Building Safety Regulator;
– Outlines proposals for a, “more rigorous approach to accountability,” through the lifetime of buildings, from their design and construction through to occupation and refurbishment;
– Proposes a stronger voice for residents, providing them with new rights to receive information concerning the safety of their building;
– Requires Building Safety Managers to produce and implement a Resident Engagement Strategy, detailing how they will inform and engage residents and involve them in decision-making;
– Recommends the creation of a new Construction Products Standards Committee, comprising of technical experts and academic, to advise the Secretary of State for Housing on whether voluntary industry standards for construction products should also become UK regulatory standards; and
– Proposes a roundtable meeting between the Housing Secretary and mortgage lenders to work on an agreed approach to mortgage valuations for properties in buildings under 18m in height, to provide certainty for owners affected by vital building safety work.

These measures are in addition to the introduction of the Fire Safety Bill in March 2020, which (if enacted) will confirm that building owners and managers of all multi-occupied residential buildings must assess the risks from external walls and front entrance doors in accordance with the Regulatory Reform (Fire Safety) Order 2005. Local Fire and Rescue Authorities will enforce compliance with the Bill.

Mr Jenrick remains of the view that building safety reforms are a top priority but is also mindful of the challenges presented to the sector by COVID-19 and has explained that the government is, “supporting building owners, managers and residents to ensure that remediation work continues where it is safe to do so.” Vital maintenance and repair work can continue to take place so long as it is conducted in accordance with public health guidance.

Even before the current pandemic, the healthcare sector faced daily financial and logistical hurdles. Now, not only do you have an unprecedented challenge in responding as a sector to an unexpected global event, but at an operational level you must also keep up to date with almost daily revisions to procedure, amended guidance and evolving regulatory approaches.
To help understand the procedural and regulatory changes which have been (and continue to be) introduced, we highlight below some recent headline developments which we consider will influence on a practical level how you respond to the continuing spread of the disease.

Statutory Notifications
Although the Care Quality Commission (CQC) and Health and Safety Executive (HSE) have suspended routine inspections, both organisations have issued guidance detailing the reporting requirements of COVID-19.

• CQC: you do not need to notify individual coronavirus cases, and need only notify if coronavirus affects the day to day running of your business in that you cannot safely meet the needs of your service users or a utility, fire alarm, call system or other item of safety equipment fails for more than 24 hours. Non-COVID-19 notifications should continue to be submitted, “without delay,” in the normal way.

• HSE: in cases of employee infection, RIDDOR reports should only be submitted where:
an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus;
a worker dies as a result of occupational exposure to coronavirus; or
a worker has been diagnosed as having COVID-19 (supported by a registered medical practitioner’s diagnosis) and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

The requirement for an actual diagnosis by a medical practitioner before a case can be considered as potentially reportable is helpful. However, there is still room for interpretation over what amounts to, “reasonable evidence,” that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor as to the circumstances of transmission (which may or may not be available, or forthcoming).

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. It accepts however that as the prevalence of the disease increases, it will be difficult for employers to establish whether or not an infection was contracted as a result of their work.

Going forwards all employers with open workplaces need to remain updated and alive to the potential need to report diagnosed cases.

Inquests
The spread of COVID-19 has had a significant impact on the court system. Mirroring procedural changes introduced within the mainstream judiciary, the Chief Coroner has produced a number of Guidance Notes in an effort to both limit the number of physical hearings taking place, as well as protect court staff.

At a practical level, COVID-19 is an acceptable (direct or underlying) cause of death for the purposes of the Medical Certificate of Cause of Death. Therefore the fact that an individual may have died as a result of COVID-19 is not, on its own, a reason to refer a death to the Coroner. There may however be other circumstances relating to such a death which do nonetheless justify referral and further investigation by the Coroner.

For those deaths which do proceed to inquest, the Coronavirus Act 2020 has suspended the requirement for a jury inquest even though COVID-19 is a notifiable disease.

The decision as to whether ongoing cases can continue to be heard is ultimately at the discretion of the senior coroner for each area. However the Chief Coroner has suggested that:
• no physical hearing should take place unless it is urgent, essential business and that it is safe for those involved for the hearing to take place. For example, any jury inquest, “of significant length,” listed to start between 31 March and 28 August will be adjourned. Currently those hearings listed from 1 September onwards should remain in the list;
• any hearings that do take place should be public and conducted in court; and
• coroners should, where feasible, use technology (including telephone and video-conferencing applications) to enable the participation of all Interested Persons and their representatives.

The full Guidance Note can be found at:
https://www.judiciary.uk/wp-content/uploads/2020/03/Chief-Coroner-Guidance-No.-34-COVID-19_26_March_2020-.pdf

Resident Admissions
Current Public Health England (PHE) advice permits service users to be admitted to a care home from a domestic setting. Whilst some may have COVID-19, PHE considers that such patients can be safely cared for if all other relevant guidance is followed.

If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period, care can be provided as normal.

This advice does not overrule your general obligation to consider whether you can safely cater for a specific individual’s needs. That assessment must still be undertaken in respect of all new admissions in the normal way.

In respect of admissions from hospital, the onus is on the relevant Discharge Service to clarify with the receiving setting the COVID-19 status of an individual, as well as any symptoms observed during the transfer process.

Whilst national testing for the disease remains limited some hospital inpatients will qualify, for example those receiving critical care for pneumonia. However negative tests are not required prior to an individual’s transfer to a care home.

Further guidance can be found at the following link:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878099/Admission_and_Care_of_Residents_during_COVID-19_Incident_in_a_Care_Home.pdf

Personal Protective Equipment (PPE)
A dedicated helpline has been established for organisations who have immediate PPE supply concerns. The contact details are: 0800 915 9964, or supplydiruptionservice@nhsbsa.nhs.uk

PHE has issued, and regularly updates, its guidance as to the appropriate use of PPE by those working in the sector and for those undertaking specialised or nursing care, specific guidance is available at:

https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/covid-19-personal-protective-equipment-ppe

For those providing care to service users who are known to be possible or confirmed COVID-19 cases, specific PPE recommendations are provided. For other individuals an assessment is recommended, to be undertaken remotely if possible, to ascertain whether the individual meets the case definition for possible/ confirmed COVID-19 before care is delivered. If an individual is symptomatic and meets the case definition, appropriate PPE should be worn prior to care.

Current guidance states:
• Aprons and gloves remain subject to single use in accordance with Standard Infection Control Precautions.
• Respirators, fluid-resistant surgical masks, eye protection and long-sleeved disposable fluid repellent gowns can be subject to single sessional use, each session ending when the care worker leaves the clinical care setting or exposure environment.
• Once removed, all PPE should be disposed of safely.

In addition, users of face masks should be aware of the HSE’s guidance on face fit testing, full details of which can be found at:
https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm

Medicines
The CQC recognises that the dispensing and checking of Multi-Compartment Compliance Aids (MCAs) is labour-intensive and that pharmacies may withdraw this service during the pandemic. If your supply changes from MCAs to original packs, the CQC recommends that you review and update your risk assessments, policies and procedures, staff training and competency assessments in response.

The key message is that all staff must understand how to administer medicines safely and in a manner which allows for continuity of care.

Additional advice, including in relation to the delegation of tasks to care workers from healthcare professionals, is available at:
https://www.cqc.org.uk/guidance-providers/adult-social-care/covid-19-medicines-information-adult-social-care-providers

DBS Checks
The CQC has issued interim guidance for recruiting staff and volunteers as a consequence of (and during) the pandemic and where the following three factors apply:
– you need staff to start urgently;
– waiting for a full DBS check could cause undue delay; and
– this delay could lead to risks in continuity of your service and impact the safety and wellbeing of people using it.

For emergency roles, you will be able to make use of a fast (and free) Barred List check and, whilst Enhanced Check information will still be processed, this will be issued subsequently.

Helpfully the CQC has confirmed that if employers take reasonable steps to ensure that new staff are recruited in line with the above guidance, they continue to be adequately supported and appropriately supervised and that service users remain safe, it will, “not take a punitive approach.” This means that so long as you record the decisions taken in respect of staff recruitment, together with any risks identified and mitigating control measures, this is likely to influence whether enforcement action is taken in respect of similar breaches in the future.

The CQC’s full advice can be found at:
https://www.cqc.org.uk/guidance-providers/all-services/covid-19-interim-guidance-dbs-other-recruitment-checks

Staff appointments which are not as a result of COVID-19 must continue to be processed in the usual manner.

Conclusion
Despite the relaxation of some regulatory requirements, you need to be mindful that matters potentially of interest to the regulators (and unrelated to COVID-19) will continue to occur. It is imperative therefore that you continue to abide with your pre-existing regulatory and professional obligations to ensure the safety and well-being of both your service users and employees.

A summary of the CQC’s advice, relating to all aspects of social care, can be found at the following link:
https://www.cqc.org.uk/guidance-providers/adult-social-care/information-adult-social-care-services-during-coronavirus-outbreak#restricting-visitors

Should you require any assistance in interpreting or applying current guidance, then please do not hesitate to contact us.

The Health and Safety Executive (HSE) has issued updated guidance for employers as to the RIDDOR reporting requirements where an employee contracts COVID-19.

The guidance confirms RIDDOR reports should only be submitted where:

a. an unintended incident at work has led to someone’s possible, or actual, exposure to coronavirus, this must be reported as a dangerous occurrence. The example given by the HSE is a lab worker accidentally breaking a glass vial containing the virus; or

b. a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure to the virus whilst at work, this must be reported as a ‘disease’. The HSE gives the example of a healthcare professional who is diagnosed with COVID-19 after treating patients with the virus.

Like all government agencies, the HSE is doing its best to keep pace with the pandemic. However, it seems this latest guidance poses more questions than it answers. For example, the vast majority of people, even those with symptoms, are not yet being tested. In the absence of a definitive test it is impossible to state with any certainty whether an individual actually has COVID-19, or is simply presenting with similar symptoms as a result of another infection.

Equally, given the assumed incubation period of the virus it is difficult to know what amounts to “reasonable evidence,” that an individual contracted the disease whilst at work, given the day to day potential for other routes of transmission. This is a particular challenge for businesses away from the frontline. For example, how will a supermarket know if its employee contracted the virus at work, on their commute or at home?

Conclusion
The examples provided by the HSE are simplistic and helpful for those on the frontline. However, the guidance undeniably creates huge scope for interpretation and it is hoped that further clarification will be forthcoming.

Businesses should continue to report other incidents and dangerous occurrences under RIDDOR as required, but need not report suspected cases of COVID-19 unless they are satisfied that one of the above two requirements are met. If you require any support in interpreting the new guidance, please contact us.

Earlier this week the Government announced a package of proposals designed to ensure building owners address fire safety risks.  Part of what has been dubbed “the biggest change in building safety for a generation” Housing Secretary Robert Jenrick MP hopes the changes will ensure that, “everyone is safe, and feels safe, in their own home.”

So what has the Government announced this week?

A new Building Safety Regulator

Grabbing the headlines is the immediate establishment of a new Building Safety Regulator (BSR) within the HSE to raise building safety and performance standards and to have oversight of a stringent new regime for higher-risk buildings.

The BSR will be established initially in shadow form ahead of its formal creation on a statutory basis. Dame Judith Hackitt, former Chair of the HSE and author of ‘Building a Safer Future,’ the independent review into building regulations and fire safety commissioned following Grenfell, will chair a board overseeing transition to the new regime.

Previous plans for the BSR incorporated representatives of the Fire Service and Local Authorities in a joint competent authority arrangement.  However, the Government has, instead, chosen the HSE to run the BSR exclusively. 

Details as to the nature, scope and powers of the BSR are yet to be confirmed, as is the basis and source of its funding.

Consolidated building safety guidance

The Government also issued simplified consolidated guidance to building owners on the actions they should take to ensure their buildings are safe (https://www.gov.uk/government/publications/building-safety-advice-for-building-owners-including-fire-doors). 

Covering a range of topics from smoke control to fire doors, the document requires immediate action from owners of buildings of any height to assess and manage the risk of external fire spread.  It also reflects the view that cladding material comprised of ACM with an unmodified polythene core should not be used on buildings of any height and should be removed. 

To speed up remediation efforts in the private sector, the Government will appoint a construction expert to identify ways to speed up the pace of ACM removal. As an added incentive, Mr Jenrick has announced that from February 2020 he will name and shame those responsible for buildings where remediation works have not started.

What next?

With the second phase of the Grenfell Inquiry starting next week, we can expect further announcements in the coming months, including:-

• Sprinklers: the Government’s consultation closed in November and Mr Jenrick has already indicated a will to lower the height threshold for sprinkler requirements from 18 to 11 metres.  More detail is to follow in February.

• Combustible cladding: already banned for high rise buildings (those over 18m), a consultation will be launched that could see a height reduction to 11m.  

• Fire Safety Bill: designed to clarifying the scope of the current Regulatory Reform (Fire Safety) Order 2005, the Bill will require residential building owners to fully consider and mitigate the risks of any external wall systems and front doors to individual flats.  The changes also aim to make enforcement against building owners easier.

Viewpoint

There has been widespread frustration and concern at the slow pace of change post-Grenfell and this injection of renewed momentum is welcome. However, the lack of detail in this week’s announcement makes it tough to determine how effective this package of measures might be. 

And whilst there is widespread support for the HSE’s newly expanded role, the BSR must be properly resourced if it is to make the impact sought.  Mike Robinson, Chief Executive of the British Safety Council agrees; “between 2010 and 2017 the HSE had a real terms cut of over 50%, losing nearly a third of their staff…the Secretary of State has promised that the [BSR] will get the funds it needs.  I’d like to see that funding ring-fenced so that it doesn’t disappear to plug the existing funding gap at HSE”.

It seems clear that we can expect a change of approach when it comes to the assessment and prioritisation of building risks, which Robert Jenrick says have relied on, “crude height limits with binary consequences [which] does not reflect the complexity of the challenge at hand.”  Whilst height will remain a significant factor, going forwards it seems it will be just one of a number of risk factors to be considered.

Further updates will follow as additional measures are announced.  In the meantime, if you have any queries regarding these developments, please contact Rhian Greaves (rhian.greaves@pannonecorporate-com.stackstaging.com) or Bill Dunkerley (bill.dunkerley@pannonecorporate-com.stackstaging.com).

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour back in 2017, he no doubt hoped progress might now have been made. His draft Bill, prompted by his involvement with the Hillsborough families, would require public authorities to admit responsibility following adverse incidents, even before court proceedings have been intimated. Put on hold following the snap General Election, the process has been reinvigorated by the tragedy at Grenfell and the drive towards public accountability pressed by regulators including the Care Quality Commission.

What is proposed?

The Bill addressed a groundswell of opinion that there was an uneven playing field, between bereaved families on the one hand and well-resourced public authorities on the other. There was additional disquiet that, despite the extent of investigations prior to the second Hillsborough inquest, neither the coronial nor criminal justice system had been able to reveal the cover-ups which subsequently came to light.

The draft Bill proposes a statutory duty of candour, which would require public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

‘Public authority’ is given an inclusive definition and is proposed to include, “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

What about failure to comply?

Chief Executives of public authorities will commit a criminal offence, punishable by a fine and/or imprisonment if they fail to meet the duty.

Public servants also commit an offence if they intentionally or recklessly mislead the general public, the media or proceedings. They will equally be guilty if they hinder their authority’s compliance with the duty.

Other proposals of note

The Bill also suggests bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly-funded legal assistance and representation at the same level, or in proportion to, the resources provided to the public authority.
What could this achieve?
When introducing the draft Bill, Any Burnham summarised the motivation as “simple”. “It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

When can we expect a change?

Introduced in 2017, the Bill’s progress was thwarted by the dissolution of Parliament for the General Election in May of that year.

However, the Law Commission is currently considering reform of the offence of Misconduct in Public Office and anticipates discussing the duty of candour in its final report, due in autumn 2019.

Comment

The Bill does not define “candour” and the precise scope of any new duty remains unclear. Certainly we would not expect any duty to require criminal suspects to make admissions prior to appearing before the Court; that would undermine the criminal justice system.

Interestingly, whilst the emphasis is on public authorities, the proposed duty would also apply to private organisations where their activities are delegated or contracted to them by an organ of the state, or where they have a health and safety obligation to the public.

Questions will also arise as to the tension between the requirement for candour and the right to silence in the criminal process. Where someone reasonably asserts that right, the draft Bill suggests they will not be guilty of lacking candour. However, the idea that any assertion of the right of silence will be subject to third party scrutiny is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years begs the question: where will the money come from?

Interestingly, the Bill also proposes a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in fine imposed.
Sentencing Guidelines for health and safety offences are stated to be punitive and designed to send a message to shareholders and can therefore be seen as a ‘stick’ to encourage early admissions.
However, there is no comparable carrot. In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant is likely to consider themselves caught between a rock and a hard place.

Despite the suggestions for improvement which have been highlighted by bereaved families over recent years, the enactment of a statutory duty of candour appears low on the Government’s priorities at the current time. If the duty is to become law then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all.

Pannone Corporate has published its inaugural Care Report, following a recent Freedom of Information request to the Care Quality Commission (‘CQC’). The purpose of the request was to understand the CQC’s use of its enforcement powers to date, and to identify if there were any developing trends.

In summary, whilst the CQC is taking an increasing amount of enforcement action, its preference to date is to use civil, as opposed to criminal, sanctions. That being said, the CQC’s Chief Executive has recently indicated that the organisation is preparing to potentially initiate more prosecutions in the future, with a decision on enforcement pending in around 220 investigations.

In light of this indication it is imperative for care providers to ensure that health and safety is treated as a business priority, and to seek early and expert legal advice should they be investigated by the CQC.”

http://pannonecorporate-com.stackstaging.com/wp-content/uploads/2019/06/PannoneCareReport.pdf

Issues surrounding individual service users’ rights to liberty and security, and the extent to which these may conflict with their care needs, have been a source of ongoing concern for care providers for a number of years.

Although the last decade has already seen legislative changes, court rulings and judicial commentary, further revisions have recently been enacted as a result of the Mental Capacity (Amendment) Act 2019, which received Royal Assent on 16 May.

Development of the Deprivation of Liberty Safeguards

Article 5 of the European Convention on Human Rights (ECHR) confirms the right of every person to liberty and security of their person, and prevents their unlawful detention. Deprivation of an individual’s liberty is however permitted in specified circumstances, including where the detainee is of an ‘unsound mind’ (Article 5(1)(e)). Any such detention must be undertaken, “in accordance with a procedure prescribed by the law.”

This right was incorporated into English law by (amongst other legislation) the Mental Capacity Act 2005, which permits the deprivation of an individual’s liberty if that person lacks capacity. The relevant test being whether, “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” The Act required any measures imposed to be in the best interests of the person who lacks capacity.

Despite the provisions of the Mental Capacity Act, the European Court of Human Rights considered in the Bournewood case that there remained a lack of procedural safeguards for those deprived of their liberty, as required by Article 5. For example, it considered that there was a lack of clarity as to who was able to authorise deprivations, and where responsibility rested for undertaking continuing clinical reviews and assessments once someone had been deprived of their liberty.

To address the ‘Bournewood gap’ the Deprivation of Liberty Safeguards (‘DOLS’) were introduced in 2009 as an amendment to the Mental Capacity Act, and prescribed the procedure by which impositions on liberty were to be authorised by the state. The Safeguards however only applied to deprivations occurring in hospital or registered care/ nursing homes, with any deprivation outside of these settings only capable of being authorised by the Court of Protection.

Further changes came in 2014 when the Supreme Court widened the interpretation and scope as to what may amount to a deprivation of liberty and decided in the case of P v Cheshire West that all those who were:

1. under continual supervision and control; and
2. lacked freedom to leave the place where they lived

were being deprived of their liberty. This wide definition conceivably included any measures taken which adversely affected an individual’s freedom, but which were otherwise deemed to be in that individual’s best interests. The potential for routine residential or nursing care to fall within this definition was therefore significant.

Practical Implications
Any deprivation imposed outside the prescribed DOLS procedure ran the risk of amounting to an unlawful deprivation of liberty, with all the consequential financial and legal implications flowing from this. The incentive for care providers on a day to day basis therefore was to err on the side of caution and apply for authorisation in every instance that restrictions were required, in order to avoid being accused of an unlawful deprivation. This cautious approach (which had been expressly endorsed by the Court in P v Cheshire West) resulted in an exponential increase in the number of DOLS applications submitted. The sudden increase in the number of submissions created a significant backlog of pending decisions within local authorities which often took many months, if not longer, to be considered and returned.

In addition to the increased turnaround time for submitted applications, criticisms were also raised that the authorisation process itself was overly bureaucratic and convoluted. For example, the 2013- 14 report of the House of Lords Select Committee on the Mental Capacity Act 2005 was critical of the procedure and considered that vulnerable adults were being failed by an Act which had been designed to protect and empower them, with many individuals likely being deprived of their liberty outside the protection of the law. The report considered that the existing legislation was, “not fit for purpose.”

As a result of the above criticisms and increasing delays within the authorisation system the Law Commission was requested to review arrangements, its report being published in March 2017. In summary the Commission recommended that the DOLS system be replaced as it was, “overly technical and legalistic, and too often failed to achieve any positive outcomes for the person concerned or their family.” It also considered that the best interests assessment often merely rubber stamped the decision already taken by the relevant care team, with the implication that the DOLS process was, “not really a safeguard.”

The Commission concluded that Article 5, “must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory,” and recommended that the DOLS scheme be replaced with a new regime – the Liberty Protection Safeguards (‘LPS’). The LPS were proposed as a system of ‘protective care’ to sit alongside and compliment the existing health and social care system and to streamline the process of obtaining authorisations, as opposed to imposing an additional layer of bureaucracy.

The Commission proposed that the LPS include: enhanced rights to advocacy; periodic checks on the care arrangements of those affected; greater and more express consideration of an individual’s human rights; and whether a deprivation of their liberty is necessary and proportionate.

Mental Capacity (Amendment) Act 2019
Following the Government’s positive response to the Commission’s report in March 2018, in July 2018 the Mental Capacity (Amendment) Bill was published which broadly sought to implement the Commission’s recommendations and proceed towards a system of Liberty Protection Safeguards. It should be noted however that the Act now in force does not refer to the phrase ‘liberty protection safeguards.’

Despite having now received Royal Assent, the draft Bill was subject to a number of revisions prior to its commencement. For example, the Law Commission suggested that responsibility for securing the authorisation (and treatment) which deprived individuals of their liberty in private care should rest with the relevant registered care manager. Concerns were however raised within the sector in terms not only that managers may lack the necessary training to determine such issues, but also that this process could place home managers into a conflict situation, having to consider granting an application for an individual in a home for which they were responsible.

Whilst revisions have reduced the role of home managers from the Commission’s initial suggestions, the Act still requires home managers to identify those who may lack capacity and whose care requires them to be restricted. As such the potential for a conflict of interest to arise remains.

Likewise, the Act replaces the Law Commission’s initial suggestion that deprivations required someone to be of ‘unsound mind’ with the requirement that they have a ‘mental disorder.’ Pending introduction of codes of practice and guidance, this change could easily lead to satellite litigation as courts attempt to interpret the provision in a manner which is compliant with Article 5 (which itself refers to ‘unsound mind’).

The Act also introduces other changes which mark a departure from both the previous Deprivation of Liberty Safeguard regime and the Law Commission’s initial proposals. For example:

• The distinction between deprivations within a care setting and elsewhere has been abandoned, with one process applicable across all providers (private and public);
• Applications can now be submitted in respect of anyone aged over 16 years, as opposed to the previous minimum age of 18;
• An express requirement that service users be consulted in relation to any proposed restrictions. The extent to which a service user with advanced dementia is capable of expressing an informed view is however questionable;
• Removal of the requirement that an authorisation must be in an individual’s best interests. The Act requires that arrangements are necessary to prevent harm to the cared-for person and are proportionate in relation to the likelihood and seriousness of harm to that person; and
• Authorisations are to last for an initial period of 12 months. Subsequent renewals thereafter may last for up to three years before further review is required, therefore tripling the current amount of time that people can be deprived of their liberty without re-assessment.

Conclusion
The changes contained within the Mental Capacity (Amendment) Act 2019 are on the whole to be welcomed, on the basis that they attempt to simplify and clarify a regime which had evolved as a result of numerous legislative provisions and discrete decided cases.

It is also to be hoped that the new Liberty Protection Safeguards not only assist care providers with the practical day-to-day administration of deprivations, but ensure that any such restrictions also serve the needs and requirements of those most affected – the service users.

It has been over three years since the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines were introduced.
To consider the extent to which the Guidelines have met their stated aims the Sentencing Council has recently undertaken an Impact Assessment, which has made the following key findings:

• The fines imposed on all organisations have increased following the introduction of the Guidelines.
• There has been an unanticipated increase in the fines imposed on ‘smaller’ organisations.
• An increasing number of individuals are being prosecuted for health and safety offences, and the fines imposed have increased.
• An unanticipated increase in the level of fines imposed on organisations and individuals convicted of food safety and hygiene offences.
• Fines following conviction for corporate manslaughter have increased.
• Fewer appeals against sentence have been successful.
  Comment
  During consultation it was anticipated that the net effect of the new Guidelines would be to increase the levels of fines imposed, given that fines against organisations were to be primarily based on turnover and not (in contrast to the previous guidelines) universal starting points irrespective of an organisation’s size.
  Whilst this anticipation can be seen to have become a reality, the Impact Assessment reveals unexpected increases in the fines handed down against both smaller organisations and those individuals convicted of health and safety and food safety and hygiene offences.
  Having considered the findings of the Impact Assessment, the Sentencing Council intends to investigate further the operation of the Guidelines, especially its application to smaller organisations and individuals and will consider in due course whether any revisions are necessary.

The fact that fines are on the increase, across the full range of offences caught by the Sentencing Guidelines, perhaps offers little comfort to dutyholders. However, rather than taking the increase as a negative, organisations and individuals should rather treat these figures as an incentive to ensure that health and safety remains a top priority and to motivate them to take whatever steps are necessary to ensure that they do not form part of the figures for the next Impact Assessment.

Bradford Teaching Hospitals NHS Foundation Trust has been issued with a fixed penalty notice of £1,250 by the Care Quality Commission as a result of its failure to apologise to a family in a reasonable period of time.
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires regulated providers to, “act in an open and transparent way,” and to notify the ‘relevant person’ (being either a service user or their representative) as soon as reasonably practicable after becoming aware that a ‘notifiable safety incident’ has occurred. The Regulations explain that a notifiable incident in relation to a health service body is:
“Any unintended or unexpected incident that occurs in respect of a service user during the provision of a regulated activity that, in the reasonable opinion of a health care professional, could result in, or appears to have resulted in [either] the death of that service user… or severe harm, moderate harm or prolonged psychological harm.”
In practice, Regulation 20 serves to foster a culture of candour, openness and honesty by obliging regulated providers to:

– Inform service users when something goes wrong;
– Offer appropriate support and a remedy; and
– Issue an apology.

In the case of Bradford Teaching Hospitals NHS Foundation Trust, a baby was admitted to Bradford Royal Infirmary in July 2016. There were delays in diagnosis and missed opportunities in the care that was provided and whilst the Trust recorded the case as a ‘notifiable safety incident’, it did not inform the baby’s family that it had done so or issue an apology until October 2016.
Professor Ted Baker, the CQC’s Chief Inspector of Hospitals, said of the fine:
“The action that we have taken against Bradford Teaching Hospitals does not relate to the care provided to this baby, but to the fact that the Trust was slow to inform the family that there had been delays and missed opportunities in the treatment of their child. Patients or their families are entitled to the truth and to an apology as soon as practical after the incident – which didn’t happen in this case.”
Comment
Whilst the issue of this fine, the first of its kind, is perhaps further evidence that the CQC is increasingly willing to exercise the full range of its enforcement powers in holding providers to account, it is questionable to what extent the fine achieved the general aims of sentencing.
Although the CQC considered that a fixed penalty notice was a proportionate alternative to prosecution in this instance, it is difficult to understand how a low fine (likely representing only a tiny fraction of the Trust’s turnover) can be considered a deterrent to other providers.
In addition, Regulation 20 does not give any indication as to what would be considered to be a ‘reasonably practicable’ time period in which to issue a notification. In the above case three months was held to be too long, but it is not clear if this period was intended to be of universal application, or specific to the facts at hand.
Only time will tell whether the CQC considers fixed penalty notices to be a useful tool at its disposal, or whether it deems it necessary to use its additional enforcement powers, including prosecution, to hold healthcare providers to account. In any event, care providers should consider this an opportunity to review their crisis response systems and to seek further advice if required.

Two weeks after the tragic fire at Grenfell Tower Dame Judith Hackitt, former Chair of the Health and Safety Executive, was commissioned to prepare an Independent Report in respect of building regulations and fire safety. Her final Report was published in May 2018, with the Government’s positive response being provided in December 2018. The Government will consult further on her recommendations from Spring 2019.

Chief amongst Dame Hackitt’s findings was that the regulatory system relating to high rise and complex buildings was not, “fit for purpose,” and that the prevailing culture within the construction sector motivated duty holders to compete in a, “race to the bottom.”

In total the report made 53 recommendations, of which a primary suggestion was the establishment of a Joint Competent Authority (‘JCA’), comprising of representatives from the HSE, local authority building control and the fire and rescue services, which would operate to help identify the relevant roles and responsibilities of duty holders, as well as to drive cultural change amongst regulators, the construction sector and building owners.

A number of other proposals were also made in an effort to clarify the roles and responsibilities of relevant duty holders, and to help improve standards across the entire lifecycle of building construction and usage. For example, the Report proposed to establish a database of all High Risk Residential Buildings (HRRBs), detailing the relevant duty holders for all such buildings, as well as introducing a more robust testing regime in respect of construction materials generally.

Pending implementation, the Government proposes the establishment of a Joint Regulator’s Group to trial the proposed new framework before the introduction of relevant legislation. This will help assess the likely financial and human resource costs of the JCA.

Whilst the Government has agreed, “in principle,” with the majority of the Report’s recommendations, it remains unclear how the JCA will achieve its proposed aims in practice. For example, it is not clear at this stage whether the JCA will be a local or national organisation, if it will be a collaboration between representatives, or whether it will take the form of an entirely new entity. Given the already stretched resources of the HSE and local authorities, questions can also be asked as to how the JCA will be funded.
On a practical level, whilst the Government has stated that it wishes for the JCA to be established, “as soon as possible,” no specific timeframe has been indicated despite it being already 18 months since the Grenfell fire.

The Report states that the JCA will initially only apply to residential buildings of 10 storeys or more, which serves to exclude a large number of buildings, including care homes and hospitals, from its remit. The suggestion also within the Report that there be a greater emphasis on safety at the procurement stage leads to the conclusion that increased costs are likely to be incurred prior to works being undertaken, which may not correlate well with commercial reality and industry norms.

Whilst the recommendations absolutely are to be welcomed and seek to achieve a sea-change within the industry, presently the finer details are lacking. Therefore it will be interesting to observe and consider the responses to the Government’s consultation in due course.
If you have any queries or would like to discuss any of the matters raised, please contact Bill Dunkerley on 0161 393 9087

Since April 2015 the Care Quality Commission (‘CQC’) has been the enforcing authority in respect of regulated care activities and has extensive powers of enforcement, including the ability to prosecute both individuals and corporate care providers which it considers have failed to provide safe care and treatment.

Despite its wide-ranging powers, to date there have been only a handful of CQC prosecutions. However, recent comments by the Commission’s Chief Executive indicate that the organisation is conscious of the low number of prosecutions and is preparing itself to pursue more enforcement activity in the future.

Background
Prior to 2015 health and safety investigations arising out of the operation of care and nursing homes were undertaken by the Health and Safety Executive (‘HSE’), in accordance with its statutory powers.
Genesis for change came with the publication of the Francis Report, commissioned as a result of the failings at Mid Staffordshire NHS Foundation Trust and events at Winterbourne View, where 11 people were convicted of maltreatment of patients following a Panorama expose.

The Report concluded that there was a lack of clarity as to which of the HSE, local authorities or the CQC was the responsible organisation for holding care providers to account. Outside of the Report the care industry perceived a lack of familiarity by HSE Inspectors with the intricacies of day to day care activities, the HSE having more experience of investigating and prosecuting breaches in other industries.
Flowing from the Francis Report, a Memorandum of Understanding was signed by the HSE and CQC which aimed to close the, “regulatory gap,” and clarify the scope and extent of both organisations’ responsibilities.

In accordance with the Memorandum, the HSE continues to be the relevant inspection and enforcement organisation in respect of health and safety matters involving service users with non-registered providers, as well as for matters involving workers, visitors and contractors across all providers. The CQC by contrast is the lead inspection and enforcement body for the safety and quality of treatment provided by those organisations and individuals registered with it.

CQC Powers of Investigation
The CQC’s Enforcement Policy sets out two primary purposes:

1. To protect people who use regulated services from harm and the risk of harm, and to ensure they receive health and social care services of an appropriate standard; and

2. To hold providers and individuals to account for failures in how services are provided.

To achieve these aims, and by way of ongoing monitoring of providers, the CQC undertakes routine inspections of registered providers to assess the quality and level of care being provided, following which a rating will usually be issued and corresponding report published on the CQC’s website. If any failings or breaches are identified then this may, depending on the nature and severity, result in enforcement action.

The CQC’s enforcement powers include:
• warning notices;
• civil sanctions, for example imposing conditions on a provider’s registration, or suspending registration altogether;
• criminal enforcement powers, including penalty notices and prosecutions.

The Enforcement Policy makes it clear that the CQC will only take action which it considers is proportionate to the individual case.

Despite having the ability to prosecute, to date there have been only a handful of prosecutions by the CQC. This can be contrasted with the hundreds of prosecutions initiated by the HSE during the same period. The reasons for this discrepancy are unclear, although it appears that the CQC is conscious that only a small percentage of its investigations result in prosecution.

Winds of change?
In an interview with the Health Service Journal at the tail end of 2018 Ian Trenholm, Chief Executive of the CQC, stated that he was, “keen to do more enforcement,” and that he foresaw, “the number of prosecutions increasing.” He went on to explain that the CQC has hired 11 ‘evidence review officers’ to, “help…with looking at and reviewing the quality of evidence [the CQC] are generating to make sure we can prosecute more people and do that much more effectively.”

Mr Trenholm has explained that it wouldn’t, “distress [him] overly much if we lost a few prosecutions because it would mean we are pushing the envelope.”
The indication that more providers may be prosecuted coincides with an increased willingness by courts to impose significant fines following conviction. Although there are no Sentencing Guidelines which are specific to CQC prosecutions, Guidelines do exist in respect of health and safety offences generally. Although these Guidelines do not expressly apply to convictions in CQC cases, recent experience demonstrates that courts do have regard to them when sentencing at the conclusion of CQC prosecutions.

For example:
• Hillgreen Care Limited was fined £300,000, together with costs of £141,000, in November 2018 for failing to provide an appropriate level of care and protect service users from a resident with a history of sexual assaults.

• Southern Health NHS Foundation Trust was fined £125,000 following the fall of a service user who had accessed the roof of his psychiatric unit.
These are significant fines, with any sums paid being unavailable to be re-invested by the provider in its care services.

Conclusion
The combined effect of the court’s ability to impose large fines, as well as the recent indications from the CQC, could cumulatively be interpreted as painting a bleak picture for registered care providers.
Although it is admirable for the CQC to wish to hold more duty holders to account how this will translate into practice, and whether it will result in more prosecutions as opposed to other forms of enforcement, remains to be seen. In increasingly austere times questions may also be asked regarding the use of public funds to pursue prosecutions which are ultimately unsuccessful.
Rather than being viewed as a worrying period however, duty holders should consider this as an opportunity to review their management systems, general compliance and any perceived weaknesses in their undertaking, so as to minimise the potential that they attract the attention of an increasingly prosecution-minded CQC.

If you have any queries or would like to discuss any of the matters raised, please contact Bill Dunkerley on 0161 393 9087