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CQC Briefing: Is your service a closed culture?

On 1 November 2019, CQC issued guidance for inspectors and Mental Health Act reviewers on the risk factors involved with closed environments. This followed on from the Panorama program about Whorlton Hall in May 2019 and the earlier issues arising from Winterborne View Hospital. Closed cultures were seen as an inherent risk in some types of long term services, especially in relation to human rights issues.

CQC wrote to the providers of learning disability, autism and mental health services alerting them to the risks, which it acknowledged could arise in any long term care environment. Restraint, segregation, and seclusion were highlighted as matters that could compromise human rights.

As a result of the current pandemic, many hospitals and care homes have imposed visiting restrictions, and government guidance has supported that approach. Whilst such arrangements potentially impact on individuals’ rights under Articles 5 and 8 of the Human Rights Act, the Court of Protection held in the case of BP –v- Surrey County Council at the height of the virus surge that the country was currently facing “a public emergency which is threatening the life of the nation” and that as a result of the risk to those in care homes, “a derogation [from those rights] becomes not merely justified but essential”.

Thus there is court authority confirming it was appropriate to derogate from human rights at the time of the pandemic.

Nevertheless, a lack of external scrutiny from family or other visitors, such as non-essential healthcare professionals and regulators clearly gives rise to the perception of the possibility, if nothing else, that the unit may be a closed culture and that with that there is risk of abuse.

CQC is drafting guidance for inspectors on this topic so it will be an issue to be considered when routine inspections return.

So how do providers prepare for this? There are various steps that can easily be taken and processes that can be reviewed to demonstrate an open approach:

  • Ensure staff are aware of human rights
  • Is their training up to date?
  • Are they aware how concerns can be raised?
  • Do you review the use of restraint, segregation or seclusion externally to the unit?
  • What oversight of safeguarding procedures is in place?
  • Do residents have access (even if by telephone or video call) to advocacy in some form?
  • How does the service hear the voices of its residents? How does it listen?
  • How do you assess the internal culture of a service?
  • What external oversight of the unit and its management is in place?
  • Do you have an external whistleblowing line?[i]

Many providers will have systems in place to address these points. However, it would be prudent to review these now and check their efficiency during the period of the pandemic. If there have been operational changes due to the virus, have these still protected residents’ rights?  And can you evidence this?

This is all work that quality teams can usefully start on now.

[i] An external whistleblowing service is provided by RadcliffesLeBrasseur LLP-for further details please contact andrew.parsons@rlb-law.com

Afternote: CQC has now issued guidance on this which can be accessed following this link.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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