Attention to the abuse and neglect of people in institutional settings is at the forefront of existing and proposed policy agendas. Investigations, reviews and calls for action feature in the workload of the Joint Committee on Human Rights; the Health and Social Care Select Committee; the Equality and Human Rights Committee and the Care Quality Commission (CQC). Most recently, the failure of existing regulatory, corporate and legislatives regimes to safeguard people with learning disabilities and autism against poor inpatient care resulted in the development of the National Safe and Wellbeing Programme by the NHS Executive in 2021. That policy initiative acknowledged that “current quality oversight processes are not always robust enough to identify poor standards of care particularly in relation to people’s physical wellbeing and quality of life.” In this blog, Kirsty Keywood and Margaret Flynn use their experience of undertaking and contributing to a number of Safeguarding Adult Reviews to profile two themes relating to regulatory challenges that require significant attention.  They also highlight areas for further development and reform.

• Only 3% of beds in care homes are owned by the public sector, 13% by the voluntary or not-for profit sector, while 84% are owned by private companies. Greater financial transparency is required of private sector, profit-making organisations involved in the provision of care.
• Criminal law should be expanded to address instances of weak corporate governance that lead to poor outcomes for adults in care.
• Significantly increased engagement by CQC with relatives is required to ensure effective compliance with standards around safety and service user dignity.

Regulating Profit-Making in Institutional Care

In December 2021, documentary series Panorama broadcast a programme outlining the damaging impact of profit-driven care companies on care provision for older people. This was foreshadowed by academic research 20 years prior which identified an association of poor outcomes with private-sector care. In 2019, data from the Institute for Public Policy Research and Future Care Capital found that 84% of beds in care homes were owned by private companies.

As a consequence of the downward squeeze on local authorities’ revenue spending, these companies have increasingly relied on ‘self-funders’ to remain in business. The profit-driven marketisation of care homes is characterised by the Chair of the Health and Social Care Select Committee, as the “unacceptable face of capitalism”. Since the Panorama broadcast, a number of organisations have called for care to be provided by not-for-profit organisations. The actions of the private sector in health and social care generate concern in light of scandals in private care homes and hospitals such as Cawston Park, which resulted in the deaths of three adults with learning disabilities; Winterbourne View where 11 staff members were convicted of offences of ill-treatment and wilful neglect; and Whorlton Hall, where nine members of staff are due to stand trial in 2023 for ill-treatment and wilful neglect.

Since corporate structures in the care sector are complex and likely to be fragmented, it is increasingly difficult to identify all corporate bodies that derives financial benefit from neglectful or abusive care provision. This poses very significant difficulties for the CQC. It is unable to take enforcement action or investigate multiple providers which are owned by separate legal entities, regardless of whether they are closely connected. Life-altering abuses and neglect are often found at multiple care homes of providers owned by the same company, such as in the case of Operation Jasmine in South-East Wales and Atlas Homes in Devon. However, financial transparency is not presently required under the CQC’s regulatory scheme, even though immediate implementation of this by the Department of Health and Social Care was strongly advised by the Equality and Human Rights Commission in 2020. Although the CQC has powers to determine the financial efficiency of many NHS Trusts and the financial viability of large, independent sector adult social care providers, its assessments do not currently permit a focus on or consideration of the financial gains secured by providers, their shareholders or their parent companies; or the extent to which companies’ assets and resources are moved beyond UK jurisdictions.

Relatives: The Undervalued Regulatory Agents

The CQC relies on strategies of registration audit, inspection and enforcement of care standards. Those strategies are reliant on the insights and observations of CQC professionals and inspectors. A lay perspective also informs the work of the CQC in the form of recruiting ‘experts by experience’ in inspections, engaging with family members and residents who report poor and insensitive practices, plus opportunistic discussions with residents and their family members as part of the inspection process.

Elsewhere, healthy and social care policy expressly acknowledges the crucial role of family members in decision-making, for example the Mental Capacity Act Code of Practice and the Care and Support Statutory Guidance.  Although families are critical to safeguarding their relatives, they are used to being distanced and ignored by services that are performing poorly, even though their perspectives in care decision-making are foregrounded in the right to respect for private and family life under Article 8 of the European Convention on Human Rights (G v E (By his litigation friend the Official Solicitor), A Local Authority, F [2010] EWHC 621 (Fam); Glass v United Kingdom 61827/00). Without an understanding of people’s lives, services cannot adopt a meaningful life course perspective, since it takes time and trust to gather information about a person’s life. By creating distance between residents and their families, it becomes difficult to truly integrate health and social care with a rounded understanding of the person.

Knowing residents as loved family members, with roles within and outside their families, is critical to the provision of valued care and support. Families have developed skills, expertise and powerful advocacy over time and yet these are rarely perceived as complementing those of professionals, untrained and unsupervised support workers, or even the ‘experts by experience’ commissioned by the CQC. The confident knowledge of families that things are ‘not right’ often begins when placements are being considered, at the outset of these placements and during reviews when marginalisation is commonplace. Families have a deep desire to demonstrate the worth of their relatives to hospital and care home staff and to ensure that they are not harmed.

An Agenda for Legal and Policy Reform

Given our research and experience in informing safeguarding adult reviews, we propose that the following have promise:

• There is impetus for an ethically-informed model of care commissioning such as that advocated by Hudson that takes seriously the commitment to service user dignity, sustainability and community benefit.
• Powers of enforcement and sanction are needed against parent companies that are organisationally, legally and functionally distinct from their care providers. Such powers would significantly enhance the CQC’s current regulation of ‘complex providers’.
• There is merit in expanding criminal law to address the most egregious instances of weak corporate governance; an issue which is currently under consideration by the Law Commission.
• The perspectives of relatives on their loved-ones’ experience of poor institutional care require enhanced recognition in policy and legal frameworks. Significantly increased engagement by CQC with relatives is required to ensure institutional compliance with regulatory standards around safety and service user dignity.

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