Standing Firm: The Art Of Being A Health And Social Care Provider

Running a health and social care service has never been for the faint of heart – but difficult economic and political times bring new problems to providers in the sector. We see it as part of our job to empower providers to stand up for their services and demand fairness and a reasonable approach from the multiple stakeholders that have serious influence on their business.

Whilst this can often seem easier said than done, we have put together some tips on standing up for yourself and your service which could ease the path ahead:

Inspections

It has never been more important to have a CQC or Ofsted rating that fairly represents your service. The overall rating and inspection report is a service’s biggest marketing tool and commissioners are generally placing people at “Good” and “Outstanding” services over those that are “Requires Improvement”.  “Inadequate” services can face huge struggles to attract service users or are even subject to an automatic embargo. As commissioners become more reliant on inspection reports, providers find themselves desperate to ensure that their service is in the running for their custom. As such, when the inspector calls there is a lot at stake. So what happens when a draft report comes back and it is inaccurate or not enough weight has been given to the many positive aspects of your service? Providers need to feel confident in submitting robust factual accuracy comments and challenges to the proportionality and general judgement of the inspection team. If a report is not a true representation of your service then this must be highlighted and the correct position put forward. Likewise, if the inspector has acted in such a way that a provider believes the impartiality of the inspection has been inhibited, then this should also be raised by way of formal complaint at the earliest opportunity. If a provider does not challenge inaccuracy or unfairness, the report will be regarded as factually correct. This is of particular significance when there are adverse findings that could accumulate across consecutive inspection reports and result in regulatory enforcement action. HCR Law has represented a number of clients in producing such representations that not only highlight the deficiencies with draft reports, but also use the CQC’s or Ofsted’s own guidance to expose impropriety in the way an inspection has been performed.

Commissioner Contract Negotiations and Fees

The cost of staffing, energy, food and other expenses associated with running a care service have risen exponentially over the last year. Nationally, we are seeing more providers than ever leaving the sector but what about the ones that remain committed to weathering the storm? How do they survive in a time when money is tight? The answer is by standing up to your commissioner to ensure that you are being paid a rate that is fair and that will cover all costs that are needed to deliver safe care. We are helping an increasing number of providers to challenge fees being paid by their commissioners on the basis that the existing rates (some of which have not been increased in years) are no longer covering the needs of vulnerable people. Many providers feel that challenging fees will “rock the boat” in what is already a complex relationship, however, HCR Law would remind providers that if inadequate fees are resulting in corners being cut or an increase in risk, then they themselves will be responsible should the unthinkable happen. Setting out your concerns about low fees in the first instance will put on record the dangers that are posed to vulnerable people when commissioners refuse to pay a fair rate.

Safeguarding

Safeguarding service users is the cornerstone of care delivery. No provider would argue that safeguarding, as a concept is unnecessary, but many would challenge the opaque, cumbersome and seemingly arbitrary way that investigations are conducted. Safeguarding matters can feel like a dark and endless tunnel where specific detail is scant and you may not feel fully included in the consideration of the facts. In order to feel fully represented and taken into consideration during safeguarding investigations we would encourage providers to stand up for themselves by taking control of the proceedings as much as possible. Demand an agenda when you are asked to a safeguarding meeting. Ask for all available information on allegations and if you know what the matter concerns provide as much information as you can about the incident. The level of investigation you can do will depend on the involvement of the police (this will be prohibited if the police are involved) but it is important to provide information that will guide and inform the investigation – particularly when the source of information could be an unsubstantiated and potentially vexatious whistleblower or a mis-interpretation of information that can be explained by the provider and would result in any concerns being resolved. All too often do safeguarding teams steamroll their way through such investigations and often the provider will only find out the details once an outcome has been decided (with potentially minimal input from the provider). HCR Law would always advise that providers persist in finding out as much as possible about an allegation and provide as much information to investigating bodies, even when formal requests have not been made.

Relationships with Service Users and Families

Successful care services are built on the positive relationships fostered between staff, service users and their loved ones. However, some relationships are complex, fraught with challenging emotions, concerns about funding and other day to day worries about the care that is being delivered.

Most issues can be resolved through clear communication, empathy with the service users and their loved ones at time of distress and reasonable inclusion.

Unfortunately, there are occasions where relationships degrade beyond repair, be it through a service user’s anti-social behaviour, bullying of staff by the service user or their family or a simple refusal to pay fees (in cases of private fee payers or top-ups). These situations need careful management. When problems with these types of issues arise, we would encourage providers to stand up to the relevant party and remind them of any contractual agreements that there are in place e.g. a service agreement that dictates fees to be paid or a minimum standard of behaviour from service users and their families (obviously taking into consideration their complex needs and presentations). Whilst legal confrontations are a last resort, providers must be reminded that the wellbeing of all service users are the priority and that as an employer, they have a duty to protect the staff delivering care. As such, communication should be as open and frank as possible and the aim should be to resolve without conflict. However, providers should be reminded that there are likely to be legal mechanisms in place that will assist them should matters go past “the point of no return”.

Being a care provider is challenging and there is often a temptation not to “aggravate” a regulator or commissioner. However, in our experience, not speaking up only deepens issues that could be resolved through robust and frank challenges. Providers need to be assured that standing up for themselves in the first instance is for the greater good in the long-term.