Comfort zone

When the Care Quality Commission (CQC) was established on 1 April 2009, it raised hopes within the care community of more joined-up thinking so that any incidences of failure to deliver the right standard would be picked up more efficiently. The CQC published its strategic priorities last month, with one key element being its aim to act swiftly to eliminate poor-quality care.

While most would not argue with a move towards driving up care standards for the elderly, the CQC has yet to put flesh on the bones of its policy and decide how it will deal with care homes that fail to achieve basic requirements. The threat of closure, should a home fail to meet these standards, is a cause for concern for many involved in the delivery of care '“ particularly since we have already seen many homes close over the last five years '“ and elderly welfare organisations such as Age Concern and the National Care Homes Association put the blame on under funding by local authorities.

Roger Harcourt, head of healthcare at Nottingham-based Berryman who advises many care home operators, feels that the CQC must address how it is going to handle registrations of homes and the quality ratings it will confer on them following inspection. 'These ratings are absolutely crucial to people's businesses and there is concern over an alleged lack of consistency with inspections, which can undermine a home's viability where the resultant rating is lower than anticipated.' A poor rating could lead ultimately to the home being closed.

'When you are a care home owner and something goes wrong, you can rapidly find yourself on the back foot with the local authority and regulator and, if not handled properly, things can quickly spiral out of control,' says Harcourt. 'If you depend on the local authority for the majority or all of your bed placements, that relationship is absolutely critical, and if the press gets hold of something and blows it out of proportion, it would be quite easy for an isolated incident to turn into a situation where the local authority says it is not going to place any more residents with you, or for the CQC to step in and close the home.'

But Adam Hartrick, a partner in the health and social care advisory team at Hempsons who has advised social care regulators (now the CQC) over the years, says that the CQC would normally only close a home as a last resort: 'If the CQC inspects a home and decides the quality of care is poor, it will, before taking steps to close it, give detail about the areas in respect of which it is not meeting standards, and what it needs to do to raise standards, and it will give the operator time to do that '“ as long as this is consistent with protecting those that live there from any serious risk of harm. So there is a process that would have to be gone through.'

It must be a good thing, he says, that the regulator has the strategic aim of raising care standards, 'as the ultimate result will be driving up the quality of care people are receiving in those homes'.

Feeling the pinch

In reality, and particularly in these recessionary times, more often than not closure occurs or is threatened because of economic factors. One issue that elderly care practitioners feel particularly strongly about is the government's squeeze on the budget for elderly care, which is prompting many local authorities to renegotiate their contracts with care homes.

'A lot of care home owners already felt, before the squeeze, up against it,' says Anthony Fairweather, partner and elderly care specialist at Clarke Willmott, Bristol. 'And now, we are seeing local authorities going back and reassessing what is already a very tight contract.' One care home operator, he recounts, was receiving £450 per week for a resident, then last month the local authority came in, reassessed the contract, and is now only offering £300 per week.

Many care home managers now cannot afford to take on social security residents as the cost of their care is more than the awards the authorities make. Private sector patients will end up having to top up those who are social security funded.

Roger Harcourt predicts that many businesses will not survive the squeeze. 'The better-run businesses will be able to bend with that extra pressure, but it's going to be interesting to see what happens as on the one hand local authorities need providers, as most don't want to run their care homes. So you need providers in the market, and you've got an ever-growing elderly population that needs to be housed. If you are going to pay lower rates to people, this might result in taking stock out of the market, and it's not sustainable. You can't just slash the budgets, it won't work.'

Jennifer C Margrave, a Guildford-based sole practitioner who specialises in advising elderly clients, would like to see the government accept that its social care budgets are inadequate. 'They can afford to send a lot of people out to fight a war, and never say we can't afford that, so I am a little cynical. If the government puts its budgets in the right place, it can afford the care old people need.'

In illustrating her point, Margrave says she often applies for NHS funding for clients, yet the administration and bureaucracy that goes into it amounts to false economising: 'My local area has at least ten staff '“ managers, assistants, and nursing assessors '“ each probably getting an average of £40k if you take into account their benefits, pensions and holidays. The money that's involved in trying to stop people getting NHS funding would pay for the care of about ten people.'

Bad moves

The fundamental issue for Margrave is the risk of harm to elderly patients in moving them from one care home to another, should theirs be closed. There is currently no formal test for risk of harm, and no accepted evidence. But it is a matter that has had significant media coverage, with solicitor and champion of elderly rights Yvonne Hossack '“ having been cleared by the SRA for allegedly 'inappropriately urging clients and others to engage in a media and political campaign' (see Solicitors Journal 153/36, 29 September 2009) '“ now saying she has solid evidence that home closures do cause real harm and that she wants to take this evidence to the European Court of Human Rights.

Margrave agrees with the view that moving elderly residents is detrimental to their wellbeing: 'They say there's no evidence that it causes stress, but there is. Old people who are settled in a home, if they are moved, often deteriorate and sometimes die earlier than they would have otherwise.'

But Adam Hartrick's view is that 'if you plan carefully and make sure alternative accommodation is just as good, if not better, then you would struggle to say that simply moving an elderly resident will shorten their life'. The local authority guidance, he says, clearly states that the resident's interests needs to be borne in mind when any closure or move is considered.

Although publicly funded residents could potentially bring a claim under the Human Rights Act, 'this is not an absolute right, and there would still be an argument as to whether what the local authority is doing is reasonable and proportionate', says Hartrick. 'As part of the consultation that a local authority must undertake when proposing to close a home, it must set out and explain what provision it will put in place, what care will be available and how will it meet needs.'

Cold comfort?

The government has issued proposals to improve the care system overall, publishing its 'Shaping the Future of Care Together' Green Paper on 14 July 2009. The main proposal is to create a unified National Care Service that will secure a 'fair, simple and affordable' care funding system for everyone (see www.dh.gov.uk/en/socialcare/index.htm). In doing so it would give all people with care requirements above a particular threshold a percentage of their care costs, dependant on their income.

But there are concerns that the cost to the individual will not be reduced and may even be higher than it is currently. The proposals have also been criticised as the options put forward do not take into account accommodation costs, which the government believes should be the responsibility of the individual (subject to means-testing).

Certainly, with the cost of care and the number of people requiring it ballooning, there needs to be an open debate about it; it is an issue than needs tackling sooner rather than later. The consultation is due to end later this month. But Margrave says she is not taking the proposals seriously 'because they've been put forward by a party that's highly likely not to be in government next year, so how far is that Green Paper going to go?'

Roger Harcourt thinks that the burden of care funding will ultimately fall to the individual. 'Not everyone considers the future or how they are going to support themselves in later life. Some assume the state will provide, while others think people should look after themselves, to the extent they are capable. Everyone knows they are going to get old and if with old age comes infirmity the chances are they will need some sort of care.'

Margrave, however, thinks that the financial burden of funding your own care is virtually impossible for most individuals to carry, with all the other costs of life that people have to account for '“ such as having children and paying a mortgage. 'It goes back to what the government is doing with our money,' she says.

Funding issues are at the heart of the debate and have been for years; but could the problems with our elderly care system actually be more to do with our culture? Anthony Fairweather thinks this is certainly a point worth considering. 'In a lot of cultures outside the UK, the elderly are looked after at home within the extended family. To some extent the huge worth of elderly people is far more appreciated in other countries. They are not marginalised like they are here.

'If people do not like paying huge amounts in care home fees, the alternative is that people need to be looked after at home or within the family structure,' although he admits this is not always possible.

The reality of the situation, he says, is that 'people have got to learn to save for their care; there are no two ways around it'.

'I think it's fair to say that we are not a great nation of savers,' Fairweather continues. 'Most people faced with knowing they are not saving enough do very little, even when advised that they should act. The public does not seem to respond to these challenges. But the cost to the treasury is just going to become too huge.'