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17th November 2015

Managing staff over poor quality care

The Mail on Sunday published an article on 8th November expressing concern over worrying information obtained from the CQC confirming that 424 out of 1357 care services across England received “inadequate” or “needs improvement” ratings following inspections in the last 12 months.

This is nearly a third of registered agencies failing to deliver good quality care, with evidence of vulnerable service users being neglected because of missed visits, being given the wrong medication or left at risk of injury with proper background checks on staff not being carried out.

The Facts

Incidents reported by the Mail on Sunday included:

  • An 86-year-old dementia patient who died after suffering severe burns from a scalding bath she ran while her live-in carer slept.
  • Another dementia sufferer who had to undergo skin-graft surgery for burns because carers failed to notice her back was against a burning radiator after a fall.
  • An acclaimed musician with the Royal Philharmonic Orchestra who died in 'agonising pain' because care workers failed to administer pain relief, or gave her too high a dose.
  • A carer who had to see 15 clients a day and persuaded a bedridden 76-year-old cancer patient to falsify documents saying she had carried out a shift when she hadn't.

It goes without saying that all care providers are continually striving to achieve, as a minimum, a “Good” or “Outstanding” rating. Indeed most, if not all, will have in place the various systems and procedures designed to ensure that highest quality of care is provided to its service users. Key will be recruiting the right staff, inducting staff properly, supervision, on going training and support, regular 1-2-1's, spot checks and service user’s feedback. Indeed some may even consider the use of mystery shoppers.

However it is also critical that care providers manage properly incidents of poor care. From a HR perspective this means tackling any behaviour or standards which fall below the standards expected of your organisation. Such incidents may come to light from a report by a service user, another member of staff or via supervision/spot checks.

Conduct vs Capability

When tackling such issues it is important to investigate any issue fully. Get all the facts, including a statement from relevant service users (or their family) if necessary. Pull together the employees personnel file to remind yourself of their qualifications, training provided (including at induction) and any previous issues of a similar nature. It is then important to assess whether the issue is one of conduct or one of capability. The simple test is:

  • Conduct is where someone can do something but chooses not to i.e. it is within their control; and
  • Capability is where someone can’t undertake a particular task or can’t do it to our standards.

Identifying the above at the outset will then dictate whether to treat the issue as a conduct disciplinary matter or performance/capability issue. This is key as the processes will differ depending on the cause of the issue. In particular, capability issues may adopt a similar warning process to that under the disciplinary process, but there should be much greater emphasis on:

  • Identifying the failures.
  • Identifying any training required to prevent those failures against.
  • Identify any support/supervision needs.
  • Agreeing a period by when to demonstrate improvement.
  • Consider redeployment where a person demonstrates no competence in a particular role.

Of the matters reported by the Daily Mail, each one appears to be one of misconduct. Indeed such is the seriousness of the issues allegations of gross negligence and/or dishonesty and fraud could be made warranting summary dismissal.

Consistent Management

Appropriate management within the organisation need to be empowered to tackle such behaviour or capability issues and escalate where required as well as trained to manage such processes.

Care Providers should understand that Employment Tribunals are well aware of care providers legal, social and moral responsibility to deliver high quality care and as such, where there is evidence that the conduct or performance of a staff member has placed a service user at risk, such matters will be treated as serious issues just as they would with a breach of health and safety legislation.  As such, dismissals for serious or gross misconduct and/or a breach of trust and confidence can be justified in the right circumstances.

Of course, care providers can only take action where they become aware of issues and so the onus falls on care providers to ensure that their methods of auditing the quality of care provided to service use are above and beyond those required by the CQC or other regulators. Consider the use of mystery shoppers, confidential whistle-blowing lines for employees and service users and regular service user satisfaction surveys.

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Oliver McCann

Napthens LLP – Employment Law Specialist

A highly experienced employment lawyer, Partner Oliver McCann acts for employers across all industry sectors, from owner-managed business through to large PLCs, as well as education establishments and charities. He has particular experience in advising employers in domiciliary care, leisure, retail, security, manufacturing, marketing, and the IT sectors. Read more

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