England

The duty to regulate for the purpose of securing services that ‘cause no avoidable harm’ is defined by statute to mean services that do not ‘cause or contribute to, whether directly or indirectly’ any ‘harm [that] is avoidable, in relation to a service, unless the person providing the service cannot reasonably avoid it (whether because it is an inherent part or risk of a regulated activity or for another reason)’.

Almost all of the regulations governing social care provision have a bearing on service-user safety and wellbeing. The information below focuses on the parts of the regulatory regime that have a particular impact on careworkers and are solely and specificallyconcerned with the safety and safeguarding of individuals.

If a person is barred from engaging in certain ‘regulated activities’ under the Safeguarding Vulnerable Groups Act 2006, including the provision of personal care and other assistance to older or disabled adults, it is a criminal offence for them to undertake such work, or to seek or offer to do it. It is also an offence for a service provider to permit a barred individual from undertaking activities from which they are barred and for an employment agency to provide a barred person to a service provider, in order to work in an activity from which they are barred.

CQC guidance on regulation 12 (safe care) states that registered providers should have policies and practices in place for anyone to raise concerns about the care and treatment of people they care for represent.

This suggests that conditions for safe care require, at minimum, a form of grievance procedure that goes beyond the ability and duty to report suspected abuse and includes any concern of staff that relates to the care and treatment of service users.

CQC Guidance for Providers on Meeting the Regulations (2015)

Under Regulation 13 (Safeguarding service users from abuse and improper treatment) service providers must be protected from abuse and improper treatment, and service providers must establish and operate systems and processes operated to:

(2) ‘prevent abuse of service users’ and

(3) ‘investigate, immediately upon becoming aware of, any allegation or evidence of such abuse’.

The regulation stipulates certain specific matters that are or may amount to abuse, including discrimination, control or restraint (unless it is necessary to prevent harm), degrading treatment, ill-treatment (whether psychological or physical) neglect, deprivation of liberty, and criminal offences including sexual offences and theft. Guidance makes clear that service providers must take a ‘zero tolerance approach to abuse, unlawful discrimination and restraint’ and to have ‘robust procedures and processes’ to prevent individuals being abused by staff or others. Registered providers are also expected to take ‘appropriate action’ without delay, including investigation and referral to relevant bodies, if ‘any form of abuse is suspected, occurs, is discovered, or reported by a third party.

Breach of certain parts of this provision is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation. Further information is provided below.

CQC Guidance for Providers on Meeting the Regulations (2015)

The Guidance creates detailed expectations in relation to staff responsibilities on safeguarding. Staff are expected to be aware of their individual responsibilities to prevent, identify and report abuse when providing care, including referral to other providers and investigating concerns. This implies that safeguarding individuals from care and abuse is the personal responsibility of all care workers. Providers are expected to produce accessible information and guidance for raising concerns of abuse and staff are expected to ‘understand their roles and associated responsibilities in relation to any of the provider’s policies, procedures or guidance’. Staff are expected to understand their roles and associated responsibilities in supporting actions that are taken by their employer in responding to allegations and concerns of abuse. They are also expected to have ‘access to support’ from their line manager ‘when considering how to respond to concerns of abuse’.

The Guidance also expects staff to ‘know and understand’ local safeguarding policy and procedures and ‘the actions they need to take in response to suspicions and allegations of abuse, no matter who raises the concern or who the alleged abuser may be’. Staff are expected to ‘follow local safeguarding arrangements to make sure that allegations are investigated internal or externally’, and service providers are expected to make sure that staff are kept up to date about changes to both national and local safeguarding arrangements.

Service providers must ensure that care is provided in such a way that it does not discriminate against a service user on the grounds of any of the protected characteristics set out in the Equality Act 2010 – ie: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The Guidance expects that staff understand ‘their individual responsibilities in preventing discrimination’ on any of these grounds (emphasis added).

Breach of this provision is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

CQC Guidance for Providers on Meeting the Regulations (2015), guidance to regulation 13.

Service providers must ensure that acts intended to control or restrain a service user do not take place, unless they are necessary to prevent a risk of harm to the service user of another person, and are proportionate response to this risk of harm. The Guidance expects that in their induction programme staff are trained ‘to make sure any control, restraint or restrictive practices are only used when absolutely necessary, in line with current national guidance and good practice, and as a last resort’. This training should be relevant to the staff member’s role and at a suitable level, and staff should be kept up to date at appropriate intervals. The Guidance also expects providers to make sure that restraint:

·      Is only used when absolutely necessary;

·      Is proportionate in relation to the risk of harm and the seriousness of that harm to the person using the service or another person;

·      Takes account of the assessment of the person’s needs and their capacity to consent to such treatment;

·      Follows current legislation and guidance.

Breach of this provision is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

CQC Guidance for Providers on Meeting the Regulations (2015), guidance to regulation 13.

Service providers must not provide care in a way that is degrading for the service user. The Guidance expects both providers and staff to take ‘all reasonable steps to make sure that people who use services are not subjected to any form of degradation or treated in a manner that may reasonably be viewed as degrading. The Guidance suggests that providers ‘consult and consider the views of people using their service when defining the meaning of “degrading”’. Examples of degrading treatment are given, which include:

·      being left in soiled sheets for long periods.

·      being left on the toilet for long periods and without the means to call for help.

·      being left naked or partially or inappropriately covered.

·      being made to carry out demeaning tasks or social activities.

·      being ridiculed in any way by staff.

The Guidance makes it clear that this list is not exhaustive.

Breach of this provision is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

CQC Guidance for Providers on Meeting the Regulations (2015), guidance to regulation 13.

Service providers must not provide care in a way that ‘significantly disregards the needs of the service user for care or treatment’.  The Guidance expects care and treatment to be provided in a way that enables all of a person’s care needs to be met and makes specific mention of allocating sufficient time to allow staff ‘to provide care and treatment in accordance with the person’s assessed needs and preferences’. Staff are expected to ‘raise any concerns with the provider about their ability to provide planned care’ and providers should respond ‘appropriately and without delay’.

Breach of this provision is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

CQC Guidance for Providers on Meeting the Regulations (2015), guidance to regulation 13.

The Guidance expects both service providers and staff to understand and to work within the requirements of the Mental Capacity Act 2005 ‘whenever they work with people who may lack the mental capacity to make some decisions’. It reminds providers and staff that when a person lacks the mental capacity to consent to care, a best interests process must be followed in accordance with the 2005 Act and that other forms of authority, such as advance decisions must be taken into account.

Regulation 20(1) (duty of candour) requires service providers to act ‘in an open and transparent way’. The Guidance on this Regulation expects providers to have, and ensure that staff follow, policies and procedures that ‘support a culture of openness and transparency’. Providers are expected to make ‘all reasonable efforts’ to ensure that staff understand their individual responsibilities in relation to the duty of candour and are supported to be ‘open and honest with patients (sic) and apologise when things go wrong.’ Providers are expected to have arrangements to support staff who are involved in a notifiable safety incident. They are also expected to take action against bullying and harassment in relation to the duty of candour and investigate instances where one member of staff ‘may have obstructed another in exercising their duty of candour’. Staff are expected to receive training in relation to the duty of candour, and the Guidance advises that all staff ‘must have responsibility to adhere to [the provider’s] policies and procedures around duty of candour, regardless of seniority or permanency.’

Breach of this provision is not a criminal offence, but the CQC can take [regulatory action].

CQC Guidance for Providers on Meeting the Regulations (2015).

The CQC has also provided guidance for care workers on whistleblowing. This suggests the following actions if a care worker is concerned:

·      Tackling the ‘unsafe practice, risk or wrongdoing’ directly when it is seen. The guidance suggests that ‘a firm, polite challenge is sometimes all that is needed’.

·      Talking to a line manager or other senior person.

·      If the careworker does not feel able to raise their concern in this way, following their organisation’s whistleblowing policy, if there is one.

·      Raising a concern with the CQC if all of these have been tried or the careworker does not feel able to raise the concern internally.

The guidance notes that a person raising a concern may be protected from suffering detriment, or being dismissed as a result of the disclosure under the Public Interest Disclosure Act 1998.