Our reply to the Joint Committee on Human Rights about protecting human rights in care settings
22 Nov 2021 10:53 AM
We have published our reply to the letter from Rt Hon Harriet Harman MP, Chair of the Joint Committee on Human Rights, dated 29 October 2021. This correspondence is part of the committee’s inquiry into ‘Protecting human rights in care settings’. We are doing this so that people who use services, people who deliver services and stakeholders have access to the information we are providing.
Thank you for your letter dated 29 October, which we did not receive until Monday 8 November. Given that by then the letter has been publicly released, we are publishing our response on our website so that people who use services, people who deliver services and stakeholders have access to the information we are providing.
We would also note that we submitted written evidence to your inquiry into protecting human rights in care settings on Friday 5 November, as discussed with the committee staff in advance. A significant amount of the information we are using in our response to your correspondence is drawn from that written submission which we wanted to make you aware of, given the submission is property of the committee following its receipt.
Before responding to your specific questions there are two general points which we think would help inform the committee’s understanding to our approach to visiting rights. The first reflects our statutory responsibilities as set out in the Health and Social Care Act 2008, Section 3(1) to protect and promote the health, safety and welfare of people who use health and social care services. Clearly being able to see friends and family is a significant contribution to the welfare of care home residents which is why we see visitation rights as being so important. Equally, doing everything possible to protect residents from COVID-19 is vital to protect their health. Throughout the pandemic we have sought to help care home providers meet these two, sometimes conflicting, objectives, and to take action where we have reason to believe they are falling short.
As we have previously stated, we have concerns regarding proposals to collect and publish live data on levels of visiting in every care home. It would not give assurance on the provision of person centred care. We believe that attempts to produce live data on visiting would be obstructed by weak data integrity, huge resource implications and would take away from a provider’s ability to provide high quality frontline services. The data gathered would have significant inconsistencies and as a result would not offer a valid or reliable reflection of how care homes are offering visiting, nor on the quality of the visiting experience.
Is the CQC aware of ongoing concerns around visitation rights in the care sector and the scale of the problem?
As restrictions on care homes continue to be relaxed, we will continue to monitor the situation and support care homes to implement new guidance. We have continued to investigate concerns we hear about potential blanket bans. We know the majority of providers are making every effort to follow the latest guidance and we have made clear to them that if something changes and they are no longer able to do this then they should speak with their CQC inspector as soon as possible.
The government guidance on care home visiting is currently being reviewed by the Department of Health and Social Care (DHSC). We have been asked to comment on proposed changes to this guidance, along with other stakeholder groups. We have strongly suggested the guidance becomes a much simpler document which starts off from the very clear premise that it is essential that people who live in care homes are able to receive visits from their loved ones wherever possible.
What data is currently being collected from care providers to monitor compliance with the government’s guidance on visiting care homes, particularly in relation to individualised risk assessments, and how is this information used by the CQC to determine potential actions required?
Blanket bans on visiting
As explained above, our regulatory approach is risk based so that we can focus on providers where we have reason to be concerned. We continue to monitor providers where we have information regarding concerns about blanket bans. Concerns have been raised with us in relation to 51 potential blanket bans, 16 of which have been raised in the last six months. We have taken action in every case, including following up with providers, inspecting, raising safeguarding alerts where applicable and following up with local authorities.
Of the 51 concerns raised (50 unique locations), we gained assurance in all cases that visiting is now in line with guidance. In the case of 12 of the 50 locations we secured assurance by inspecting the service. In the other cases we were able to receive assurance by working with the service and key stakeholders. Of the 12 locations in which we conducted a site visit, we were only required to take action in two scenarios, both were reported as breaches of regulation. In the course of seeking assurance, where appropriate we have maintained the anonymity of the individual who raised the concern with us and no individual resident was prejudiced by our activities.
In your letter you have set out concerns that you say indicate that ‘care homes are implementing highly restrictive visiting rules, potentially contrary to the Government’s guidance’. We would be grateful if you could liaise with any individuals sharing concerns with you to ask if they would be willing to share these concerns with us so that we can take the necessary steps to ensure blanket bans are not in place. As elaborated on below, we will not reveal the source of the information given to us. We wanted to reinforce the request as it is essential to ensure the guidance is being adhered to. We do not have the power, under the legislation given to us by Parliament, to compel care homes to inform us of any changes to their visiting status. Similarly, under our legislation we do not have the power to require care homes to report their ‘live data on levels of visiting’, neither do we have the power to take action against those care homes that are not reporting changes to their visiting status to us.
Infection, prevention and control (IPC)
Infection Prevention and Control (IPC) is an essential part of safety in care settings. It became even more important during the COVID-19 pandemic in protecting people using services and staff by aiming to prevent the spread of infection. We have enhanced our approach, when inspecting care homes, to include a mandatory question, in our IPC tool for care homes, to assess whether appropriate measures are in place and being applied to limit so far as possible in order that all types of visitors are prevented from catching and spreading infection. The questions help us gather information about the service; where the strengths are and if there are any gaps or concerns about infection prevention and control. Where there are gaps, we aim to signpost the service to resources that could help or, if necessary, we will take enforcement measures.
From its introduction, our IPC inspection tool has included a question for providers on visiting. In line with the new visitation guidance issued in March 2021 by DHSC, a further question was added to the tool on visiting. The question asks if a service is facilitating visits to people living at the home in accordance with current guidance.
During the period 24 July 2020 to 26 October 2021, there have been 6,638 IPC inspections completed. Of these, we were assured with the IPC practices of 89.2% (5,920) of services, with some requiring some support to make necessary improvements and we were assured with the visiting practices of 6,452 cases (97.2%), with some services requiring some support to make improvements.
Since the visiting guidance was amended on 8 March 2021, we have completed 2,348 care home inspections which have included an IPC review. 96.6% of these inspections confirmed that the care homes were enabling visiting to happen, and action was taken following the 79 inspections (3.4%) where we had outstanding concerns. [Data up to 31 October 2021.] As part of the inspections we spoke with people using the service and their visitors; we talked to staff; we reviewed policies and procedures and we observed practice.
Delivering an individualised approach on visiting
As part of our updated monitoring approach we ask providers how they are facilitating visits to people living at the home in accordance with current guidance, or where this is not possible enabling other forms of contact. These questions focus on how the provider supports people particularly at risk from the impact of social isolation; asking how the provider has considered protected characteristics. To corroborate reports from providers we work with our Experts by Experience who talk to residents, their loved ones and friends, and help to enhance the evidence gathering performed by inspectors in their monitoring of a service.
We have received reports that some care homes have been issuing ‘general policy’ related to visiting. We expect providers to follow government guidance on visiting. This clearly sets out that all care home residents can choose to nominate an essential care giver who may visit the home to attend to essential care needs. The essential care giver should be enabled to visit in most circumstances, including if the care home is in outbreak. Where we have any evidence that this is not happening, we will continue to take action.
Where we have identified this is the case in a care home that is part of a corporate provider, we have sought assurances that individual assessments on the safety of visiting are taking place for each resident, in each care home in the network, and we have conducted our own investigations to identify whether this is the case.
How do your inspectors engage with the evidence received and how do they follow up in case additional action is required from care providers?
We gather evidence of people’s experience of care through multiple channels, for example through feedback we receive directly from people who contact us or through contact we make with people to seek their views. Our inspectors, our analysts and our colleagues that receive concerns raised by members of the public have been working throughout the pandemic to identify risks and hear details of concerns, including those related to the human rights of care home residents. They are focused on gathering insightful information and developing a complete picture of how a care home is operating in order to support services to make changes that protect the human rights of care home residents and allow them to live their best lives.
We have taken decisive action throughout the pandemic to help keep people safe in care settings while making it absolutely clear to providers that blanket approaches to visiting are unacceptable and may trigger an inspection. We have been clear throughout the pandemic that the individual must be at the centre of decisions around visiting.
Assurance regarding provider compliance
Since the publication of new government guidance, we have been proactive in seeking assurances about whether the guidance is reflected in the experiences of residents and families. When our inspectors investigate a concern related to visiting they ask questions of other agencies and families and people that use the service, and they gather evidence to better understand the concern that has been raised.
We have been working with relative representation groups, Rights for Relatives and the Relatives and Residents’ Association, for many months in order to hear their concerns related to care home visiting. Whether these concerns relate to one care home in particular or a network of care homes operated by a corporate provider, the details are shared with the inspector and are followed up in every instance, wherever we are able to identify the care home or network of care homes.
Our inspectors regularly engage with residents, relatives, loved ones and carers as part of their inspections and investigations of concerns. In October 2020, we introduced our new approach to monitoring services during the pandemic. As part of this we have been working with our Experts by Experience to talk to residents, their loved ones and friends, to enhance the evidence gathering performed by inspectors and through our Give Feedback on Care service.
Our Experts by Experience are members of the public from diverse backgrounds who play a vital role in our regulation of health and care services. They bring their personal knowledge and experience of services to help us with our inspections and other key aspects of our work. Experts by Experience talk with people who are using services and their carers during inspections. This helps inspectors to assess and rate the quality of care being provided. We are currently evaluating the results of a pilot study in which we used Experts by Experience to make targeted telephone calls to family members of people who live in care homes. In these calls the Experts by Experience used a series of prompts to explore these family members’ experiences of care home visits. Where concerns are identified we may take further regulatory action, including an inspection.
Another service we have established, that helps us to monitor and understand the challenges providers face with compliance with the government’s guidance on visiting care homes, is the Adult Social Care COVID Response Panel. Questions raised with us which cannot be resolved by an inspector can be escalated to the panel. These are often enquiries from providers but also from people using services or their families. Between March 2020 and October 2021, 2,351 questions were escalated to the panel and the responses shared across the organisation, as a source of reference. The most common human rights issues that the panel heard related to disproportionate visiting restrictions. This included concerns from providers about implementing the government guidance. The panel consider each query and offer a comprehensive response, detailing the action necessary to resolve or mitigate the concern, and how to implement it.
What further actions has the CQC taken to make sure it fulfils its responsibility to promote compliance with guidelines on visitation restrictions?
In response to the pandemic we suspended our routine inspections. This was to limit the risk of transmission of COVID-19 and to enable providers to focus on care delivery during the unprecedented challenges of the pandemic. We continued to inspect where we were concerned about the safety of people using services. In parallel we made real progress in our ability to monitor services. As stated above, since the introduction of our monitoring approach and our IPC inspection tool we ask providers how they are facilitating visits to people living at the home in accordance with current guidance, or where this is not possible enabling other forms of contact.
We have continued to develop our monitoring approach throughout the pandemic and as we move out of transition we are evolving our approach again. We rolled out our updated monitoring approach in July 2021. This new approach uses a range of intelligence measures to help us prioritise which services we need to inspect or hold a monitoring call with. All monitoring calls are informed by an understanding of the experiences of people using that service and this influences our decision making as to whether any further regulatory activity such as an inspection is required. Evidence about people’s experiences may come from recent feedback we have received, evidence supplied by the service, Healthwatch or advocacy groups, or through direct contact between an inspector or Expert by Experience with people using the service and their supporters.
As of 24 October 2021, we have carried out 19,553 calls to adult social care services. These conversations include questions that focus on how providers protect people from abuse, ensure that any restrictions imposed on people meet best practice standards and legal requirements and how families are involved in people’s care and treatment. We also include people’s experience of care.
We constantly keep our regulatory approach under review in order to learn lessons and support our programme of improving and transforming the way we regulate services. This work considers how we have protected people’s human rights, including but not limited to the role of our COVID-19 Equality and Human Rights Impact Assessments.
Assurances from corporate providers
Since the beginning of the pandemic we have held meetings with the corporate providers of care homes. In these meetings we have stressed the importance of ensuring visits are facilitated for people. We emphasised that enabling visits ensures person centred care is promoted and people’s human rights are upheld. We advised corporate providers that if we had concerns that visits were not being facilitated, we would discuss this with them and would always take any regulatory action if people were being unduly denied visits with their loved ones.
We have been in immediate and direct contact with the executive team of corporate providers of care homes on hearing concerns related to locations in their organisation. We have asked these organisations how they assure themselves that each location is following the government guidance and advised them that continuous review is necessary to meet compliance with the guidance. This position is then corroborated through on-site inspection activity.
Has there been progress in establishing a more effective complaints mechanism for care residents?
If people experience or see poor care from an adult social care service, they have a right to complain to the organisation that provided or paid for the care. By law, all health and social care services must have a procedure for dealing efficiently with complaints.
We are not able to take up formal complaints about individuals’ care because we do not have powers under our legislation to investigate or resolve them. Instead we would signpost such complaints to the Local Government and Social Care Ombudsman (LGSCO). The LGSCO can investigate complaints about all adult care services, whether they are paid for by a council or by someone with their own money.
However, all information about the quality of care that people experience is invaluable to our understanding about quality and risk and where we should be focusing our regulatory efforts. Our role is to bring together a range of information to form a picture of how well a particular service cares for all the people who use it. We value all the information that is shared with us and use this to help us to decide where, when and what specific areas of a service to inspect.
Give Feedback on Care
We launched our updated Give Feedback on Care (GFOC) service in January 2020, to capture information about people’s experiences of the care services they or their loved ones use or that they have experience of through their work. The new service was designed around the needs of users and a full accessibility audit (carried out by the Digital Accessibility Centre) was completed, which involves testing by people with physical, sensory and mental impairments.
We have had a 75% increase in contacts from the public via Give Feedback on Care in the period April-August 2021 compared to the same period in 2020. We have also seen a 17.7% increase in concerns raised with us by staff this year (2021) as compared to last year (April to September). These concerns, and others, help to inform our inspections. In September 2021, of those inspections that have a recorded risk trigger (not regulatory history), 53% are triggered by information of concern that has been shared with us.
We run public behaviour change campaigns to encourage and enable people to share their experiences of care directly with us through our GFOC channels. Our 2020/2021 campaign, Because We All Care, was delivered in partnership with Healthwatch, with support from health and social care charities that represent people who use services, providers of services and commissioners. Building on the success of last year's campaign we will be launching a refreshed Because We All Care campaign in January 2022. The national launch will be supported by Patients Association. Further spikes of activity will target carers, long term conditions, over 55s, people with a learning disability and autistic people.
In addition to our time-specific behaviour change campaigns, we have also partnered with a small number of national charities who hear from and have direct trusted reach to some of the key populations we wish to hear from. These funded partnerships involve Disability Rights UK, Relatives and Residents Association, Mind, Carers UK and Patients Association. Partners encourage and enable those they work with to complete our Give Feedback on Care form. We have recently renewed this programme for another year, until December 2022.
What is the CQC doing to ensure that residents, patients, and relatives, who need to complain about their providers in the short term, can do so, with a view to protect anonymity and to ensure that concerns are seriously investigated and dealt with?
Through our engagement with organisations that represent people who use services we have heard how worried people who use services, and their loved ones, are that if they raise concerns, whether to the care home or to CQC, they will face negative consequences. Throughout our monitoring and inspection activities all information that is shared with us by members of the public remains anonymous. Our inspectors are trained to plan and complete engagement and regulatory activities, including inspections, in such a way that their investigations of anonymous information do not reveal the source of that information.
We will continue to work with campaign groups and residents’ and relatives’ organisations and with providers to build understanding about the standards we expect and to promote the protections we offer under regulation for residents who raise concerns.
Over the past few months, we have been working with our Experts by Experience in a pilot project in which they have spoken with family members of people in care homes about their experiences of care home visiting during the pandemic. We are in the process of analysing information from this pilot work.
What processes are in place to fully investigate reasons for eviction, discharge, or transfer, of every resident or patient, with the aim of ensuring freedom from retaliation and with the goal of providing the best possible care services to individuals?
We have been clear in our statements to the sector and to the public that a service that is safe, responsive and well-led will treat every concern as an opportunity to improve, will encourage its staff to raise concerns without fear of reprisal, and will respond to complaints openly and honestly.
Any negative behaviour or actions on the part of the care home provider following the raising of a concern by a resident is unacceptable. We will continue to highlight this to care homes and investigate all such concerns that are shared with us.
We will continue to engage with organisations that represent people to hear concerns about making anonymous complaints and to act on concerns from people or their loved ones where they feel they are suffering adversely from raising concerns, or where they believe their feedback is not welcome.
As part of our funded partnerships with Relatives and Residents Association, Disability Rights UK, Mind, Carers UK and Patients Association, and our regular engagement with a wide range of voluntary organisations, directly and in a group forum, we invite feedback and ask for concerns to be raised. The meetings are open, with the conversation led by the representative organisations.
We hope that you have found this letter helpful to you. If a further conversation would be helpful to the committee’s work then we would be happy to meet again.
Peter Wyman CBE DL
Chief Inspector of Adult Social Care
Cc: Ian Trenholm, Chief Executive, Care Quality Commission
Cc: Gillian Keegan MP, Minister of State (Minister for Care and Mental Health)