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23rd May 2011

Regulatory changes: Promotion of Rights and Choice

The Health and Social Care Act 2008 (updated 2012) brought into effect two Statutory Instruments in April 2010. The Instruments are the Care Quality Commission (Registration) Regulations 2009 and the Health and Social Care Act 2008 (updated 2012) (Regulated Activities) Regulations 2010.

One of the effects of the Instruments was the introduction of the Essential standards of quality and safety, which set out the standards to which all care providers are expected to operate in order to meet the regulations.  By the date of this newsletter, all adult social care providers have been required to register with the Care Quality Commission under the new regulations, and will have declared that they meet the new outcome standards.

The Essential standards of quality and safety consist of 28 Outcome standards, 16 of which affect daily management of the registered care service.  While there will be a number of detailed changes, we intend to return to these in later newsletters, partly because it is as yet early days to judge how CQC are implementing the detail.  This newsletter will look at the strategic changes imposed by the new regulations, which will affect all parts of all services.

In the publication “Guidance about Compliance” by the CQC, each Regulation is listed together with the associated Outcome.  Each Outcome lists: what do the regulations say, what should people who use services experience, and then provides prompts on what must be considered.

Providers will no doubt have noted that each of the Outcome Standards 1, 3, 4, 5, 6, 7 & 9 have a section of “Prompts” in common - Promote rights and choices.  The Outcomes containing this section are those which are directly service user oriented, which intimately affect their experience of the service within the major groupings: Involvement and information, Personalised care, treatment and support, and Safeguarding and safety.  The fact that the Prompt is present in 7 Outcomes, and not an Outcome in itself, possibly signifies that its effect is intended to be felt throughout the service at all times, and to not just be another item for a middle ranking manager or supervisor to tick on an audit list.

What effects does the pervasive inclusion of "Promote rights and choices" have?  To answer this question it is useful to look briefly at some history.  When the author began his career in adult health and social care, the medical model of care was all pervasive.  In the intervening years the philosophy of care in the sector has moved away from the medical model and firmly towards an holistic model.  As recognition of everyone’s human rights has developed over those years (as society becomes more sensitive to and supportive of individuality in general), adult social care has kept pace with the changes.  The advent of the Human Rights Act has given legislative backing to all these changes.  It is now not acceptable for service users to be offered limited choice, if any at all, in their support and care, simply because the professionals in charge “know best”.  Three Articles of the European Convention on Human Rights have particular affect in daily life for a consumer of care services:

  • Article 8: Right to respect for private and family life
  • Article 9: Freedom of thought, conscience and religion
  • Article 10: Freedom of expression

The all-embracing nature of attention to human rights in care services can be demonstrated if we look in some detail at one prompt within Personalised care, treatment and support; Outcome 4 Care and welfare of people who use services: (quoted from the Guidance)

"Promote rights and choices"

4E. People who use services:

Are involved in identifying their care, treatment and support options and the alternatives, risks and benefits of each are explained. Are supported to make informed decisions where they are unable to do this by themselves.

Have sufficient information to enable them or a person acting on their behalf, to make informed choices and decisions about the service.”

The effect of this innocuous paragraph can be seen in the QCS Care Planning Policy and Procedure.  That Policy had, since its origination in the early 1990s, made statements about involving the service user in care planning.  For instance, it was stipulated that the service user (for service user throughout read service user, or, if the service user is unable or unwilling to participate, their advocate) be present during the writing of or review of the care plans and signs them to indicate involvement. To promote a sense of ownership by the service user, the holding of reviews in the service user’s own room was recommended, even going so far as to recommend the storage of the care plan in the service user’s own room.  Such an approach has been acknowledged best practice, confirmed by research, for many years, and Registered Managers of care services, with the benefit of their Registered Managers qualifications, will be well aware of the approach.

However, the approach is not so well known amongst other staff of services, as evidenced by the practices still seen during audits and reviews of care services.  It is far from unusual to find care plan reviews being carried out by staff, on their own, in the privacy of the office or nurse station.  If involvement were to be argued as present in such situations, such as by prior discussion with the service user, then it has to be seen as a poor level of involvement and certainly not happening at the level implied by the requirement for review to take place in the service user’s own room with them present.

During the review of the Care Planning Policy and Procedure to incorporate the Essential standards of quality and safety, it was decided that the Policy needed to be more specific in terms of spelling out the involvement requirements.  In particular, the introduction of Informed Choice required a different level of specification.  Informed choice has always been an implied part of involvement, but given the new standards (contrasted with experience of the shortcoming sometimes seen in real practice), it was felt that reinforcement was required.

How might a care plan review be conducted under the new standards?

  • First and foremost, the service user will not be surprised by the review, and will know what the purpose of it is, having been fully involved in the previous reviews or the development of the plans in the first review.
  • The service user will have been consulted about who is to be invited to attend the review, with enough time allowed for those people to be contacted and to therefore have a reasonable chance to arrange attendance. Those people may include family members or advocates, and specialist advisors who may be required to be involved in particular care, support or treatment.  This full group may not be required for every review, some interim reviews being with a smaller group, but in all cases the attendance will have been arrived at by discussion with the service user.
  • The service user will start the review knowing the purpose, location and content of the care plan to be reviewed.
  • The review will take place at the allotted time, in a place suggested by the service user as being one where they are comfortable in physical and psychological terms.
  • The reviewer will base the review on the preceding assessment and care plan, daily records of the delivery of that care plan and its effectiveness in meeting the agreed goals of the care plan, and any other data which is relevant.  Those in attendance will be reminded of the previous records and the data.  The data to be considered should be real and objective.  If subjective data is found to be recorded, this should give rise to a note for the reviewer to coach the data recorder(s) in the effective gathering of data.
  • The service user will be asked to make observations on their perception of the effectiveness of the previous arrangements, and if circumstances have changed, or if more effective intervention is required.
  • The service user will be asked if they have any suggestions for changes to the care plan. Those present should then combine their expertise to develop those suggestions into a range of options, identifying the benefits and risks of each.
  • Each option must then be put to the service user, carefully explaining in particular the potential benefits and risks, and the service user asked to choose their preferred option.
  • The reviewer must satisfy themselves that the service user understands the potential benefits and risks of each option.  If the service user does not appear to understand, further information or support must be arranged so that they do fully understand the options.
  • The service user’s choice of intervention is recorded in the care plan.
  • The date of the next review is then agreed.

This is one small example of how the new standards affect every aspect of the service as experienced by the service user.  That level of involvement, with its basic philosophy of developing a range of choices and then offering those choices to the service user for them to decide, underpins every action from the macro action of care review, to the micro action of “what time do I get up”.

It is the contention of the author that the real change imposed by the new standards, is that the level of involvement and service user control requires that all staff are fully aware of the requirement for involvement, to the extent that acting in accordance with the standard is second nature.  If it is not second nature, it will not happen.  No longer is it possible for a service user to experience lack of choice during their daily contact with staff, but have that occasionally alleviated by an attentive Manager who knows how to conduct a compliant review.  The service user experience must be one of full involvement at all times.

For that to happen, the author believes that the level of staff training generally seen in the care sector requires a quantum leap of intensity and effectiveness.  If all staff are to comply with the new standards, they must at the very least be completely knowledgeable of a compliant management system such as that published by QCS.

Ideally, given that the range of variation of interaction between staff and service users is infinite, the staff need knowledge of the standards themselves if they are to be able to act appropriately when confronted by a novel situation.  This goes far beyond the normal NVQ level of generic training, and can be best delivered in-house by regular training, coaching and discussion sessions, amplified by a very effective supervision process, where real attention to the detail of individual performance is carried out.

Another interesting effect of the new standard is that it is the belief of the author that it requires a much better understanding of the day to day requirements of a compliant care service by the Registered Provider.  The CQC is changing its model of inspection and regulation from one of very regular site visits and face to face review of standards, to one of review of data and intelligence, and problem focused site visits.  This change is evidenced by the assertion in a recent BBC programme that site visits have dropped from 57,000 a year to a quarter of that figure.  The implication is that the service itself now needs to generate the data which CQC will review, and not rely on them gathering it themselves.  In order to generate this level of data, the Provider themselves will need to be seen to be highly knowledgeable about the standards to which their service is operating, and the standards to which it should be operating.  Again, it is believed that this level of knowledge requires a level of training of the Provider, and the staff who need to produce the data by excellent recording, which is significantly above that which has been the norm in the past.

Promotion of Rights and Choice is a fundamental underpinning element of the delivery of compliant support, care and treatment under the new standards.  The requirement affects every person, every second of the day.  Whatever the level of expertise elsewhere, failure to train staff to meet this requirement will seriously undermine the effectiveness of the service.  That is why at the beginning of this article, this was identified as a strategic issue.  It affects every element of a care service, and every person involved in it.

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