Spotting a ‘closed culture’ – CQC inspections
The Care Quality Commission (‘CQC’) has produced guidance (‘Guidance’) for their inspection teams and Mental Health Act reviewers to assist them in identifying ‘closed cultures’ at the earliest opportunity and to take appropriate action to prevent recurrence of the abuse exposed at Whorlton Hall.
In summary, the CQC concludes:
“Closed environments may develop in services where people are situated away from their communities, where people stay for months or years at a time, where there is weak management of these services and where staff often lack the right skills, training or experience to support people. We are paying particular attention to services which provide care for people with a learning disability or autism…”
This echoes the commentary post Winterbourne View in this and those concerns led to the development of the Transforming Care Agenda and the CQC’s guidance “Registering the Right Support” (updated 2017). The latest information is part of the continuing commitment to improve the regulation of services.
The Guidance deals with inherent risk factors, warning signs to look out for and details the various responses which may be warranted if concerns are identified via the inspection process.
Inherent risk factors
The CQC determines the likelihood that a service might develop a closed or punitive culture is higher if one or more of the risk factors set out below are present:
- Service users are highly dependent on staff to meet their basic needs.
- Service users stay in hospital for months or years.
- Weak or poor management:
- Significant changes in management over a short period
- High use of non-permanent staff
- Failure to provide regular staff supervision
- Poor response to complaints
- Adult social care services which mainly employ family members in management roles.
- Characteristics of staff:
- Not enough or appropriate training
- Limited access to professional staff
- High staff turnover and / or use of agency or bank staff
- In hospitals: high ratios of healthcare assistants or non-registered roles with lack of high quality supervision
- Long hours with excessive overtime.
- Feedback from staff working in services, ex-staff, people who use the service, family members or visitors:
- Bullying, cliques, disrespectful language
- Time spent on unproductive activities such as in staff rooms rather than with service users
- Risk of reprisal if ‘speaking up’
- Staff encouraged to be anything other than candid about incidents.
- Lack of meaningful external scrutiny:
- Service is geographically isolated
- Service users are a long way from home
- Service users are isolated from others, rarely engaging meaningfully with local communities
- Multiple commissioners
- Non-existent independent advisory service
- Poor reporting of concerns and limited contact from local authority safeguarding teams.
Where warning signs, of a closed culture are present, the CQC advises that inspectors should follow the Risk Management framework, making enquiries or carrying out responsive inspections as appropriate. Key considerations include:
Leadership and Management
- Do senior staff actually know what is happening? Do they spend a large proportion of time interacting directly with people?
- Are concerns ignored or played down?
- Do managers recognise the impact of violence on staff as well as service users?
- How do managers respond to bullying between staff?
Experience of service users
- Do service users appear comfortable with staff or anxious?
- Do staff tease or make fun of or play jokes on the service user?
- Do staff tolerate abusive language, or inappropriate physical contact between service users?
- Do staff touch service users inappropriately?
- Do staff understand the impact they can have on behaviour and how this may escalate?
- Do staff sometimes use physical restraint when it is not absolutely necessary?
- Are medical interventions carried out in the least restrictive manner appropriate?
- Are punitive measures taken?
- Is the focus on behaviour control?
Skills and experience of staff
- How well do staff know the service users and their plans?
- Do staff use disrespectful language about service users?
- Do staff view service users as problems?
- Are service users poorly dressed and are there signs of poor personal hygiene and physical health?
- What is the food like?
Use of restrictions and restraint
- Are there imposed restrictions in place and are they reviewed? Are they a proportionate response to risk, especially blanket restrictions? Examples include:
- Kitchen being locked, other rooms locked and off limits so service users have limited control over their living space?
- Is access to equipment, such as books, activities, CDs, restricted for service users using the service as it is locked away and staff have the key?
- In hospitals: as well as looking for an increase in notifications, is there is a complete absence of these notifications?
- Is the building dirty or in a state of disrepair?
- Are rooms personalised for service users?
- Is there a high or increasing number of safeguarding incidents, complaints etc.
- Do incidents or complaints involve:
- Inappropriate behaviour to service users by staff?
- Injuries to service users
- Violence by service users towards staff
- Police involvement
- Complaints by visitors of a hostile response
- Lack of privacy when visiting service users
Responding to closed cultures
Inspectors are advised that the presence of one or more risk factors is not proof there is an abusive culture, but could be a sign that there is an increased chance of one developing. When monitoring, planning an inspection and inspecting services, inspection teams need to consider:
- Are people able to self-advocate?
- Is there a high inherent risk?
- Are there any warning signs?
The Guidance gives inspectors pointers on how to monitor and conduct an inspection in cases where there is a high inherent risk and or warning signs, and there is a low threshold advised for responsive inspections.
After the inspection and enforcement
Following an inspection where there is a high risk of abuse, human rights breaches or poor care, inspection teams will consider the appropriate response and whether enforcement action may be required. Appendix C of the Guidance gives examples of what may constitute breaches of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 in this context. The need for providers to have robust procedures to prevent people using the service from being abused is emphasised throughout and the CQC are clear that abuse does not need to have occurred for them to take enforcement action. To meet Regulation 13 requirements providers must have and be able to evidence a zero – tolerance approach to abuse, unlawful discrimination and restraint.
We can assist where the CQC indicates that it intends to take enforcement action and review governance processes in order to advise on compliance. Should you have any questions or concerns please do not hesitate to contact us.
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.