There are many aspects of the Care Bill that will be of interest to commissioners. Jill Mason and Darryn Hale set out the key points
This article was part of the Commissioning Legal Adviser channel, in association with Mills & Reeve. The channel is no longer being updated.
The Department of Health’s statement on the publication of the Care Bill referred to “swift action following the Francis report and epic changes to care laws”.
The bill, which was introduced to the House of Lords in May and is currently at committee stage, has a number of aims. The first is to codify and reform the social care laws in response to the government’s white paper Caring for our future. It aims to fundamentally reform the operation of the law, so as to give priority to people’s wellbeing, needs and goals.
‘It will be a criminal offence to supply or publish false or misleading information’
It also aims to set a cap on the costs that people will have to pay for care in their lifetime. It is proposed that there will be an obligation for a local authority to promote an individual’s wellbeing when exercising their functions under the Bill. This includes physical, mental, emotional wellbeing and personal dignity, as well as protection from abuse and neglect.
There is also provision for the introduction of national eligibility criteria, which aims to avoid the so-called “postcode lottery” and bring transparency to the process of obtaining funding.
The second aim is to respond to the findings of the Mid Staffordshire inquiry, specifically taking forward action to address the “unacceptable failings in care”.
Greater public choice
Among the proposed measures are Ofsted-style ratings for hospitals and care homes, allowing the public to easily compare organisations and choose where they want to go for treatment or care.
It will be a criminal offence to supply or publish false or misleading information. The new chief inspector of hospitals, former cancer tsar Sir Mike Richards, will have the power to instigate processes to tackle unresolved problems with quality of care.
Other key proposals include the changing legal structure of Health Education England and the Health Research Authority. The role of Health Education England will be to assist local healthcare providers with their responsibility for educating and training staff. The Health Research Authority will have a strengthened ability to protect patient interests.
The DH has published a number of factsheets detailing how provisions of the Bill will work in practice.
Safeguarding adults
One of the areas covered by the Care Bill relates to safeguarding adults from abuse or neglect. It has previously been said that the current framework is neither systematic nor coordinated, as a result of the sporadic developments of safeguarding over the past 25 years.
Furthermore, there has never been a clear set of laws or regulations, which has made responsibility unclear. The bill aims to address those concerns by creating a legal framework that sets out the responsibilities for key organisations and individuals.
‘Local authorities will also be required to establish a Safeguarding Adults Board for their area, which will meet regularly to discuss and respond to local safeguarding concerns’
The current proposals are that local authorities will be required to make enquiries where they have “reasonable cause to suspect” that an adult with care and support needs is experiencing – or is at risk of – abuse and neglect.
They will be required to make such enquiries as are necessary to enable a decision to be made on whether any action is required. The obligation to make enquiries will apply irrespective of whether the local authority is actually providing services to that person.
The definition of abuse is proposed to include theft of property, fraud, pressure in relation to property and money, as well as misuse of money or property.
Local authorities will also be required to establish a Safeguarding Adults Board for their area. The board will meet regularly to discuss and respond to local safeguarding concerns and will comprise a number of bodies including the local authority, the NHS and the police.
‘The Care Bill will ensure that patients do not have to wait until reaching maturity to see what services they will have access to, as they will have the legal right to request an assessment before they turn 18’
It will develop a published shared plan for safeguarding, with annual reports to the public on progress. It will be empowered to do anything that appears “necessary or desirable” for the purpose of achieving the objective of protecting vulnerable adults. In certain circumstances, the board will be required to arrange a case review.
This applies where an adult with care and support needs was – or was suspected to be – experiencing abuse or neglect dies, or where there is reasonable concern about how the board, a board member or some other person involved in the case acted. The stated aim of these reviews is to learn lessons for the future.
Transition for children to adult care
The Care Bill sets out the proposed law regarding the transition for children to adult care and support services. The DH has produced a factsheet describing how the Care Bill will provide support through the transition from child to adult services.
Essentially, the Care Bill will ensure that patients do not have to wait until reaching maturity to see what services they will have access to, as they will have the legal right to request an assessment before they turn 18.
It is hoped this will provide for a much smoother transition and avoid gaps occurring in care, as local authorities will be required to provide children’s services until adult care and support is in place.
The single failure regime and how it will be imposed
The Care Bill will implement part of the government’s response to the Francis inquiry, namely the single failure regime, which will allow the suspension of the board to be triggered by failures in care, as well as finance.
It is to be based on three stages: identification, intervention and administration. The CQC will focus on exposing problems and requiring action, while the role of Monitor and the NHS Trust Development Authority will be to focus on interventions for poor-performing providers that have been unable to address the situation with their commissioners.
‘NHS trusts could end up in special administration where it is considered to be in the interests of the health service to do so’
In the identification stage, the CQC will assess providers through peer-led inspections, with the ratings being led by the newly appointed chief inspector of hospitals, Sir Mike Richards. The CQC will be empowered to issue warning notices to NHS trust and foundation trusts to highlight systemic failings and require remedial action within a prescribed period.
If the CQC has issued a warning notice to a foundation trust, then Monitor will be able to impose extra licence conditions. If these conditions are not met, it will then have the power to remove board members or governors. The CQC will also be able to review further action where necessary improvements are not made and can consider imposing special administration.
The special administration process is amended by the bill and will be open to Monitor where a foundation trust becomes clinically unsustainable. Monitor’s power to do likewise is preserved in respect of financial insolvency.
NHS trusts could end up in special administration where it is considered to be in the interests of the health service to do so. The CQC will also be able to direct that Monitor place foundation trusts in special administration on quality grounds; it will have a similar power for NHS trusts, which will be directed through the NHS Trust Development Authority.
‘Liability will attach to the organisation as a whole and potential punishments include remedial orders to take specific steps, publication orders to publish details of the offence and an unlimited fine’
In order to assist with this process, the CQC will again be charged with development and publication of a new, independent rating system for health and social care providers. This follows on from a report by the Nuffield Trust, which recommended there should be ratings for GP practices, hospitals, care homes and domiciliary care.
It is not intended to be the sole identifier of poor care but will assist in identifying performance issues. For the first time, it will allow the public to compare public and private social care organisations.
The bill also proposes to criminalise provision of false or misleading information. It is planned to be a strict liability offence and applies to providers who are knowing, reckless (ought to have known) or wilful in giving such information.
Failing to take all reasonable steps to make sure false or misleading information is not given out will also be an offence. Liability will attach to the organisation as a whole and potential punishments include remedial orders to take specific steps, publication orders to publish details of the offence and an unlimited fine.
The Care Bill and regulation
The DH has published a joint policy statement to accompany the Care Bill providing further details as to the oversight and regulation of NHS trusts and foundation trusts.
It is jointly published by the DH, the CQC, NHS England, Monitor and the NHS Trust Development Authority. It was made in response to the systemic failings identified by the Mid Staffs Inquiry, and a report commissioned by the secretary of state from the Nuffield Trust into whether the health and social care world would benefit from aggregated ratings to assess performance.
The report identified that such ratings would benefit the public in being able to choose the best services, as well as to drive commissioners and providers to seek better performance.
‘CQC registration will include a set of fundamental standards which, if breached, can be prosecuted directly’
The statement makes it clear that failures of quality are equally as important as financial failings, as well as emphasising that overlap between the roles of the regulators should be removed. To this end, it is proposed that the CQC will assess and report on quality, while Monitor and the NHS Trust Development Authority will be responsible for the use of enforcement powers.
The CQC will be the authoritative voice on standards of quality, which it is hoped will drive improved standards. Through the chief inspector of hospitals, the CQC will assess each NHS hospital’s performance and will be assisted in this process by the new system of ratings, which follows on from the Nuffield report.
This will ensure all organisations are working towards a common set of quality-based standards. CQC registration will also include a set of fundamental standards which, if breached, can be prosecuted directly.
‘If the CQC has issued a warning to a foundation trust that is not heeded, then Monitor will have the power to remove governors and directors’
Where there are identified failings that have not been addressed, it will be for the NHS Trust Development Authority in respect of NHS trusts and Monitor for foundation trusts to take enforcement action and not the CQC.
This is to preserve a delineation of powers, which will better serve the necessary regulation aspirations. They will need to assess whether the relevant organisation is taking reasonable steps to address highlighted deficiencies and intervene if they are not.
The NHS Trust Development Authority has published a paper, Delivering High Quality Care for Patients, which sets out a number of options it will consider in order to intervene. These include requesting recovery plans, instigating independent investigations, reviewing the skills and competencies of executive and non-executive board members, as well as commissioning interim support.
If necessary, the NHS Trust Development Authority will be able to place trusts in special administration.
Monitor will also consider a wide range of interventions in respect of foundation trusts, which it regulates. It can impose additional licence requirements, apply discretionary requirements or seek enforcement undertakings.
If the CQC has issued a warning to a foundation trust that is not heeded, then Monitor will have the power to remove governors and directors. It will also have the special administration power.
Jill Mason is partner and Darryn Hale is solicitor at law firm Mills and Reeve
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