Improving the effectiveness of Special Measures

As published on Local Government online on 18 July 2014.

The proposed introduction of a Special Measures regime for care providers is an interesting development and one that has the potential to address significant issues in the sector.

However, the policy is likely to send a greater proportion of smaller providers to the wall rather than improving the standards of care that they provide. This will be of significant concern to local authorities given their market oversight and care provision responsibilities.

It is important to bear in mind that the care system is hugely fragmented with the top ten specialist and elderly care home providers accounting for only 14% and 21% of the respective markets. Larger players are unlikely to be particularly phased by the introduction of the new system as they have the resources to proactively engage with the CQC and ‘parachute’ in teams to resolve any issues.

It is the smaller operators who are less likely to possess the resources to respond to being placed in this process (or avoid it arising at all) and who may be faced with insolvency as residents hear the words ‘Special Measures’ and vote with their feet.It will also inevitably have an impact on the ability of local authorities to arrange for an orderly transfer of any remaining patients.

Does the term ‘Special Measures’ therefore do justice to the issues that the CQC is likely to face? Is the language too inflammatory at a time when other regulators such as Monitor are looking to collaborate more closely?

Other questions remain around the triggering of the review. Will a ‘crisis event’ rather than generally poor performance be needed before a flag is raised? The CQC would say that their normal inspection process ought to be sufficient to identify and address ‘non-crisis’ issues anyway, but given the extent of sector fragmentation, do both the regulator and the smaller providers possess sufficient resources to properly monitor and then address issues?

Of course, this may be desirable. Regulation of smaller local operators is notoriously difficult, complex and expensive. The CQC has expressed the view that it wants poor providers to fail but it may also want to encourage greater consolidation in the market and, as a consequence, larger providers who have access to greater resources to self-police performance and rectify shortcomings without intervention.

However, there is a balance to be struck between the interests of the patient and the adverse impact on patients of failure. The requirement to move to a different location is a major issue for vulnerable patients, and there is, of course, no guarantee that the errors of the past will not be repeated should there be a change in ownership, especially if the personnel of the provider remain in place.

Perhaps what is needed is a way to encourage and foster improved provision through a ‘Special Measures’ process that puts the interests of the resident (and, some would argue controversially, the provider) first.

I would make four recommendations to improve the effectiveness of Special Measures:

  1. Adopt a different name for the procedure –one that is less emotive and that more accurately describes the spectrum of measures that might be taken – which would at least allow the provider’s reputation to be protected as they emerge from the system.
  2. Encourage a more collaborative approach to resolving performance issues and sharing examples of best practice between the CQC and providers, particularly at the smaller end of the market. The aim would be to reduce the likelihood of Special Measures from occurring for example by publishing case studies showing the practical steps that providers can take to move out of Special Measures.
  3. Incorporate a speedy challenge process to enshrine a ‘right of reply’ for providers.
  4. Establish transparency not only around the problem that each case of Special Measures identifies but also what is required to address it in order to emerge from the process. This would be consistent with the CQC’s current inspection reports and would enable patients to assess more accurately the impact of shortcomings rather than automatically packing their bags, thus improving the chances of emerging from the process intact.

The use of a Special Measures process in other sectors has taught us that it is possible to emerge from the process as a much more effective organisation capable of meeting and exceeding expectations.

Smaller providers don’t have the resources of their larger counterparts to confront the issues which a Special Measures regime presents and are more likely to regard it as another layer of potentially unhelpful regulatory control which they may not be able to afford.

Ultimately the treating large and small operators as one and the same could blunt the ability of Special Measures to continuously improve the service delivered to residents. That would be an opportunity missed.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.