England

An amendment to the regulatory framework in 2015 put reducing harm at the heart of social care regulation in England. The Secretary of State has powers to choose whether or not to make regulations that impose requirements on providers about care quality or the health, safety and welfare of service users.

However, since 2015, the Secretary of State has an additional duty to make regulations to impose requirements that the Secretary of State considers necessary to secure care services that ‘cause no avoidable harm to the persons for whom the services are provided’.

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)’.

A registered service provider is required at regulation 18 (staffing levels) to ensure ‘sufficient numbers of suitably qualified, competent, skilled and experienced persons [are] deployed in order to meet all the requirements of [the fundamental care standards]. This means that staffing levels and workload issues underpin compliance with all fourteen of the fundamental care standards.

Breach of regulation 18 is not a criminal offence and CQC have powers to impose conditions on registration, suspend or cancel registration of a provider which they will use should service users have suffered harm, be put at risk of harm or be receiving care which is substantially below standard.

CQC Enforcement Policy (2015)

While there is no specific method required for calculating staffing numbers, providers should have a ‘systematic approach’ for determining staff numbers and skill range. In addition, ‘the approach they use must reflect current legislation and guidance where available’. Staffing levels and skills must be reviewed continuously and adapted to respond to the changing needs and circumstances of people using the service.

For compliance with regulation 18 (staffing levels) Skills for Care notes that when assessing suitable staffing numbers providers should go beyond thinking about ‘care tasks’ to include satisfying individuals’ needs and wishes. They should ensure enough time is given to staff to check ‘cleanliness’, complete documents, ensure effective handovers, completion of documentation, talk to relatives and healthcare professionals, time for supervision, and time for staff personal development.

Providers must report to CQC without delay if ‘an insufficient number of suitably qualified, skilled and experienced persons being employed’ prevents, or appears to be likely to threaten to prevent, the providers’ ability to carry on regulated activities safely and in accordance with regulations.

Regulation 12 (safe care) demands that care ‘must be provided in a safe way for service users’.

For compliance with this imperative the regulation states that a registered provider must do ‘all that is reasonably practicable to mitigate any risks to the health and safety of service users’ (our emphasis in bold). Concerns about service staffing levels or the importance of manageable workloads are a highly relevant consideration in the provision of safe care.

A breach of regulation 12 is a criminal offence if it results in service users being exposed to avoidable harm or significant risk of harm. The CQC has powers to directly prosecute the registered provider/manager.

CQC Enforcement Policy (2015)

Risk assessments for service users are required by regulation 12(2)(a) and CQC guidance includes an expectation of planning and delivery of care that should include arrangements to respond appropriately and in good time to people’s changing needs.

This suggests the need for staffing levels to be above the bare minimum.

CQC Guidance for Providers on Meeting the Regulations (2015)

If a provider does not provide staff with adequate time for effective handovers this might constitute a breach of regulation 12 (safe care) and regulation 13 (safeguarding). There is no CQC guidance about handovers, so providers must decide for themselves how to operate within the regulations. However, Skills for Care notes that good handovers ensure safe care, while poor handovers can put people at risk.

Regulation 12(2)(b) requires registered providers to do ‘all that is reasonably practicable to mitigate risks to the health, safety and welfare’ of people using services.  The corresponding CQC guidance emphasises that registered providers ‘must be able to demonstrate they have done everything reasonably practicable to provide safe care’ (our emphasis).

It seems that decisions about staffing levels must be demonstrably informed by the need to mitigate health, safety and welfare risks.

CQC Guidance for Providers on Meeting the Regulations (2015)

According to Skills for Care, compliance with regulatory standards about staffing levels requires providers to think beyond working-time regulation and factor in specific issues that may cause staff to experience fatigue and be less able to deliver safe care, such as working long shifts. Providers should consider the likely impact on the productivity of experienced staff if they work alongside new or inexperienced workers, agency workers or volunteers. Skills for Care advises that providers be ‘realistic’ about the impact of high staff turnover on staffing levels.

CQC guidance indicates time and staffing level implications underpin compliance with Regulation 9 (person-centred care) because staff must be kept up to date with any changes to a person’s needs and preferences and individuals must have a choice of food and drink that meets their needs and preferences as far as reasonably practicable. Staffing levels should therefore be determined with capacity for providing such choices and maintaining good communication between staff. Breach of regulation 9 is not a criminal offence and CQC have powers to impose conditions on registration, suspend or cancel registration of a provider which they will use should service users have suffered harm, be put at risk of harm or receiving care which is substantially below standard.

Skills for Care advice on ‘safe staffing levels’ encourages registered providers to use ‘contracted workers’ instead of temporary staff on grounds of continuity of care and long-term cost effectiveness.

CQC guidance stresses the imperative that staff ‘must treat individuals in a caring and compassionate way’ as well as ‘respecting individual preferences, lifestyle and care choices’. Accordingly, compliance with Regulation 10 (dignity and respect) has important time and staffing level implications. Furthermore, CQC guidance about Regulation 10 (dignity and respect) states that staff must ensure they respect a person’s privacy when providing support to use the toilet, washing and bathing, or having private conversations.

Meeting the standards expected in Regulation 10 (dignity and respect) and Regulation 13 (safeguarding) will require staffing levels and time to care that are consistent with CQC expectations that service providers take a zero-tolerance approach to abuse.

Regulation 13 demands that registered providers put in place ‘systems and processes’ that are ‘established and operate effectively to prevent abuse’.

The meaning of abuse for the purpose of the regulations includes ‘neglect of a service user’. Guidance on Regulation 10 is explicit that individuals must not be neglected or left in undignified situations.

CQC Guidance for Providers on Meeting the Regulations (2015)

Regulation 13 (safeguarding) demands that service users be protected from abuse and improper treatment. Time and staffing level implications are particularly apparent at regulation 13(c) and (d) which states that care ‘must not’ be provided in a way which ‘is degrading for the service user’ or which ‘significantly disregards the needs of the service user for care’.

A breach of regulation 13 is a criminal offence if it results in service users being exposed to avoidable harm or significant risk of harm.

The CQC has powers to directly prosecute the registered provider/manager.

CQC Enforcement Policy (2015)

CQC guidance states that care providers ‘must 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’ (my emphasis).

The guidance explicitly includes ensuring that people are not left in soiled sheets for long periods, nor left on the toilet for long periods without the means to call for help, nor left naked or partially / inappropriately covered.

CQC Guidance for Providers on Meeting the Regulations (2015)

Skills for Care advises that to comply with regulation 13 (safeguarding) providers are expected to consider the care-setting in which services are provided, including the layout of care homes and the locations in which people are to receive homecare. They should also consider the potential for individuals’ needs to change or increase, as well as the increased needs of those at end of life.

According to CQC guidance on Regulation 13(4)(d) (safeguarding, disregard for needs) staff are expected to have enough time to ensure care is not provided in a degrading way.

In particular, the guidance states that ‘care and treatment must be planned and delivered in a way that enables all a person’s needs to be met’ (my emphasis in bold).

In addition, registered providers must ensure ‘enough time is allocated to allow staff to provide care and treatment in accordance with the person’s assessed needs and preferences’. Failure to satisfy the CQC that the standards of Regulation 13 are met can result in the removal of a providers’ registration.

CQC Guidance for Providers on Meeting the Regulations (2015)

Skills for Care advises that providers use a ‘dependency tool’ to assist CQC inspectors to have confidence that staffing level calculations are compliant. If staffing levels do not match dependency tool data, people in need of care could be at risk. Skills for Care also encourages providers to use electronic monitoring technology to support safe staffing. There is reference to cost savings and other efficiencies that may accrue.

Skills for Care advises that providers use a rota system so that ‘staff can plan their lives’. Staff planning ‘should support continuity of care’ since CQC research published in Driving Improvement in Adult Social Care (2018) found ‘people who use services are best served by having a stable group of staff they know and who know them’.