Care home operators under financial pressure

Recent reports in the media suggest severe financial difficulties being suffered by the UK’s care home sector.

The Advinia Group is apparently under scrutiny from the CQC in terms of its cash flow and financial management. Advinia operates 38 homes in England and Scotland including 22 homes that it took over from BUPA in 2018, and is the UK’s 10th largest care home operator.    It has been asked to submit to an independent audit of its finances under the CQC’s market oversight scheme. The Guardian newspaper reported on 6 October that leaked papers it had seen showed Advinia was not generating enough cash to meet capital and interest repayments, and had refused to submit to the independent audit.  The CQC notified local authorities at the end of August of its concerns regarding the Advinia Group.

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Adult care – a look to the future?

As the Political Party Conference season has drawn to a close we have examined the proposals of the main political parties in respect of social care.   As we look ahead to a seemingly inevitable General Election, the conference agendas will be provide the best opportunity for a sneak peek at likely manifesto pledges.

Liberal Democrats

As the only main political party which is committed to remaining in the EU, the Liberal Democrats consider that the main threat to a deterioration in care services is Brexit.  It is believed that in order to  guarantee continued access to medicines and treatments and create the economic conditions to restore cuts to key services, the UK should remain in the EU.

At their conference, proposals were put forward to increase income tax by 1p on the pound to create £6 billion which would be used to meet immediate priorities, reverse cuts and invest in mental health.

The Liberal Democrats also propose to establish a cross-party commission in respect of NHS and social care funding and introduce a dedicated social care tax to fund it.

Labour Party

Labour has committed to introducing a free personal care for people over the age of 65 and create a National Care Service.  The overall cost is estimated at £8 billion and an eligibility criteria will apparently be set in due course.  It is not clear who would be ineligible as Labour’s vision is seemingly to provide the same level of support to everyone regardless of location and make social care free at the point of need.

Labour also pledge to address the funding crisis and support Local Councils by building capacity to enable councils to deliver care in-house as opposed to out-sourcing services and to improve the access to training by care staff.

Conservative Party

 Social care seemed to be high on the agenda of Boris Johnson following his election as leader of the Conservative Party, as he pledged on the steps of Downing Street on 1st August that his government would fix the social care crisis once and for all.

Whilst the Conservatives have pledged further funding for the NHS, Mr Johnson did not mention plans for social care in his conference speech.  The Minister for Health and Social Care Caroline Dinenage MP could not attend the conference due to commitments in Westminster and was unwilling to provide any substantial comment.

We are therefore none the wiser as to how the present government plan to tackle the crisis, or meet the gap in funding.  We would expect greater scrutiny of the Conservatives and their plans for social care in the run up to any General Election.

Impact on the  care system

All parties agree that the issue of Social Care needs to be addressed, with the Liberal Democrats and Labour pledging significant funding and the Conservatives expected to detail their own plans.

We are in a period of great uncertainty and it is difficult to know how the departure from the EU and a possible General Election will directly affect the care system going forward.

For the moment, there is no foreseeable change in the way the care system will be funded.  Care homes will likely continue to operate under funding pressures .According to the Liberal Democrats and the leaked documents from Operation Yellowhammer this situation will worsen if Britain leaves the EU. There is reference to stockpiling of medicines and increasing cost generally .How this manifests into claims is really a wait and see?


murphy_katie_web Written by Katie Murphy, solicitor at BLM

Care providers urged to ensure they are ready for Brexit

The Government and other bodies such as the Care Providers Alliance are urging health and social care providers to ensure they have done everything they can to prepare for a potential No Deal Brexit on 31 October.

The National Audit Office published a report at the end of September noting that whilst the Department of Health and Social Care had undertaken a lot of work since June 2016 to prepare the sector for leaving the EU, there was still a lot of work to be done before 31 October in respect of the social care sector. For example the report notes that whilst the NHS has taken steps to stockpile medication for immediate use across the healthcare sector,  care homes often rely upon non NHS suppliers for supplies of items such as rubber gloves. The Department did not originally advise the social care sector to stockpile such items, but rather advised that care providers should be simply “ready to deal with any disruption”.

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Inquests – Social Care – Investigations by The Coroner’s Office

Working in social care with the elderly is likely to mean that there will be occasions when you will be  required to assist the coroner. Deaths will inevitably occur whilst providing care in residential and nursing homes and in domiciliary care in circumstances where the Coroner may need to investigate.

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Highlighting issues regarding sex and dementia

The Guardian has today highlighted the tricky issues regarding dementia patients and sex.

With the onset of dementia, residents of care homes are likely to lose legal capacity and with that the ability to consent to sexual activity. However the onset of old age and dementia does not mean the desire for sexual activity and physical relationships disappears. It is also recognised that positive physical relationships are beneficial to an elderly person’s mental health and well-being.

In addition, this is of course a delicate subject for the families of residents to deal with. The article in the Guardian today highlights a case study of an elderly couple who had moved into a care home together. The couple’s adult children became disturbed by their physical relationship and a decision was made for them to live on separate floors within the home. This resulted in a lot of upset for the couple with them displaying more challenging behaviours.

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Liberty Protection Safeguards – the new ‘gilded cage’

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019 and the Deprivation of Liberty Safeguards (DoLS) will be replaced with the Liberty Protection Safeguards (LPS).  The DHSC has confirmed that the intention is for  the LPS system is to come into force on 1 October 2020.

Under the new LPS, just as with the DoLS, there is no statutory definition of deprivation of liberty and it is given the same meaning as it has under Article 5(1) of the European Convention on Human Rights (ECHR).  Guidance is to be given in the LPS code of practice about the type of arrangements that would give rise to a deprivation of liberty. Progress is being made and the final draft of the Code is expected to be prepared by Spring 2020.

The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference with or breaches of Article 8 ECHR (right to private and family life).

The acid test for what restrictions constitute a deprivation of liberty will continue to be whether a person is under ‘continuous supervision and control and not free to leave’, as per the Supreme Court ruling in P v Cheshire West [2014] UKSC 19.

What has changed?

  • The LPS apply to any setting (and will include supported living, private and domestic settings, unlike before) so authorities will no longer need to apply to the Court of Protection for individuals not in a care home or hospital.
  • The LPS will be extended to all those aged 16 or above (DoLS only applied to those aged 18 or over).
  • A responsible body will be able to authorise arrangements that give rise to a deprivation of liberty (in any setting or more than one setting):-
    1. Where the arrangements are in an NHS hospital this will be the “hospital manager” (the trust or health board).
    2. Where the arrangements are mainly in an independent hospital, the responsible body will be the “responsible local authority” in England and the equivalent health board in Wales.
    3. In cases of NHS continuing health care, the relevant clinical commissioning group or health board.
    4. In all other cases the responsible local authority.
  • Before a responsible body can authorise the arrangements, the following three conditions must be satisfied:-
    1. The person lacks the capacity to consent to the arrangements.
    2. The person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983.
    3. The arrangements are necessary to prevent harm to the cared for person and proportionate in relation to the likelihood and seriousness of harm to the cared for person.
  • Before arrangements can be authorised the responsible body must consult with defined individuals to try and ascertain the cared for person’s wishes or feelings about the arrangements.
  • A pre-authorisation review must be carried out by person who is not involved in the day-to-day care or providing treatment to the person.
  • If there are any challenges/objections then an Approved Mental Capacity Professional will be appointed provide an additional level of scrutiny to make the process more workable and proportionate.
  • Authorisation can have effect immediately or up to 28 days after.
  • Unlike DoLS, under the LPS authorisation can be renewed. Initial authorisation will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained, provided that the authorisation conditions continue to be satisfied.
  • The responsible body must arrange a programme of regular (as well as statutory) reviews.

Appeals

The Court of Protection will continue to have jurisdiction to hear any challenges, including whether the LPS apply to the arrangements, whether the authorisation conditions are met and the duration of the authorisation. The court can also vary or terminate the authorisation or direct the responsible body to vary the authorisation.

Commentary

It is inevitable that there will be an increase in the number of applications in the care home setting to which the new LPS regime will apply and the impact will be significant. Care homes will need to implement transitional arrangements for current DoLS authorisations and familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.

In circumstances where the arrangements are wholly or partly carried out in a care home, the responsible body will have to decide whether to arrange the necessary assessments or whether the care home manager should do so. The responsible body can delegate tasks in relation to renewal to a care home manager in relation to care home arrangements.

The responsible body/care home manager must ensure that the detention arrangements do not go beyond the scope of the authorisation. The Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers has not been taken forward but the government has taken the view that the tort of false imprisonment should provide an adequate remedy, by way of civil claim, against private care providers responsible for the deprivation. It is likely that this will be revisited as such cases arise.


Written by Jane Lang and Aliyah Hussain at BLM

NHS pays firms £181m to care for patients with serious mental illnesses

Due to a severe shortage of NHS mental health beds in England, the NHS has been left with no option but to pay private institutions such as the Priory increased sums to provide residential rehabilitation each year.

“The NHS is paying private firms an “eye-watering” £181m a year to look after people with serious mental health problems in units often hundreds of miles from their homes.” – The Guardian.

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