UK care homes are failing to protect themselves legally

Solicitors who provide legal advice to care homes have frequently found that care homes struggle to deal with day to day legal issues and subsequently are unprepared for allegations relating to the care of their residents.

From a legal perspective it is very difficult for care homes to protect themselves against accusations of abuse or neglect. Of course the best protection is to provide a service above and beyond what is expected and to at all times adhere to the guidelines of care laid out by the regulatory authority, the Care Quality Commission. One tip from Tim Ogle, employment solicitor of Birkett Long LLP is to not only train employees effectively, but also to create ‘a handbook [to] set out the culture, value and philosophy of the care home and the central importance of the residents.’ But, how can a care home protect itself from that disgruntled ex-employee?

Paul Ridout of believes more should be done to protect care homes against allegations which have no truth to them. His view is that if someone chooses to make a complaint against a home they should be willing to give their name and that any accusation made as ‘anonymous’ should be disregarded.

Eileen Chubb a former whistleblower and founder of Compassion in Care disagrees with Mr Ridout. She asserts that ‘staff fear they may lose their job’ which can account for anonymous complaints. Ms Chubb was blacklisted from care homes in the Bromley area after she blew the whistle on the home she was working in.

In any case, care homes can find themselves vulnerable; however there are a number of steps suggested by Mr Ogle to avoid grievances with staff.

Mr Ogle recommends that a care home has a ‘well publicised grievance policy which it commits to and, more particularly, a thorough and well publicised whistle blowing policy which it commits to. The latter document will encourage employees and workers to raise any concerns, and provide the care home with an opportunity to deal with such concerns, internally. Indeed, if a member of staff ignores an internal whistle blowing process and blows the whistle externally then they may well be outside the protection of the law. For ex-employees, it is more difficult for the care home, and there are legal and practical difficulties of enforcement, but the employment contract can still contain provisions relating to the non-disclosure of confidential information and contractual obligations on both parties to not disparage the other, both during the employment and after it comes to an end.’

Mr Ridout asserts that as ‘a care home is a highly regulated technical environment’ it is extremely important for staff to be trained to deal with the presence of an inspector. For example a key worker, who when asked by a CQC inspector about a care plan states ‘I don’t know anything about it, no one tells me anything’, this remark is completely untrue and ‘doesn’t do justice to themselves, doesn’t do justice to the business’. However it is slightly understandable that a member of staff may take ‘the soft option’ when loomed over by an inspector. Staff need to feel as comfortable as possible around the inspectors and appropriate training can assist this.

Those at the top of the business need to be aware of exactly what is going on in their home and to ‘manage a relationship with an inspection regulator’.

Mr Ridout states that by ensuring you are aware of the inspector’s findings during an inspection if a report comes back with a point highlighted that you disagree with, you are at the least in the position to say; ‘that is not what was felt on the day’. Furthermore if the inspector makes a judgement, you in your professional capacity do not agree with whilst he/she is present in your home, you must bring your grievance up at the time. All too often care homes do not do this, but are then shocked when a report comes through asking them to make a change that they feel is unjustified.

According to Mr Ridout ‘Inspectors are overworked and some are lazy’, if they can short circuit something they will, and more importantly they do not experience the workings of your care home on a day to day basis.

An example may be that an inspector states that you require a second member of staff on duty at night, however, one would assume, that there is a reason you only have one member of staff. If you feel that an extra staff is unnecessary you must say so and why.

‘You should have sufficient confidence in yourself and your senior staff to be better than the experts. You want inspectors to have confidence in the way your home is being managed. If you comply with anything and everything an inspector says without questioning, this ‘can lead to a crisis in confidence’; unless an inspector is less than human, they will assume that you have been caught out.

Just as care homes are highly regulated they also have staff working on many a different basis. Mr Ogle notes that care home’s may become (like many other businesses) liable for unfair dismissal by ‘terminating the contract of a worker, assuming that they are not an employee’. ‘Care homes tend to employ a number of staff working on different types of contracts. This might include full time and part time employees, casual workers and those on zero hours contracts, as well as temporary and agency staff. It is important, therefore, for care homes to get their paperwork in order, to confirm the working arrangements that they have, and for that paperwork to reflect what is actually going on. Otherwise, a care home might risk treating someone unlawfully, without realising it, thinking that the person is working on a different basis from what they actually are in law.’

Care homes are too often in the firing line in the media but with good management, solid contractual arrangements and an established relationship with an inspector, homes can help keep themselves protected legally. Ultimately if a home has a good relationship with well trained staff than standards can be kept to a high standard.

Rebecca Palmer of feels that the care homes that will be best placed to tackle the unexpected crises that inevitably occur are those who ensure that the legal pitfalls that CAN be pre-empted are indeed foreseen and managed as effectively as possible.

With this in mind care homes need to be savvy in their contractual relationships.

Ms Palmer advocates that this is done most effectively by care homes having commercial legal advice well integrated into their business model as early as possible so that it can contribute fully to the process and add real value.

‘From contracts with contractors and professional consultants for building, refurbishment and fitting out, through to contracts with suppliers for provision of on-going services,’ Ms Palmer states that: ‘all contracts need to protect the home’s interests and be tailored to the home’s needs‘.

Ms Palmer continues ‘By ensuring you are well protected legally, care homes can avoid being drawn into spending inordinate amounts of time “fire fighting” legal pitfalls as and when they arise when they would much rather devote their time, money and emotional capacity to making sure that their residents receive the best possible care’.

Click here for Sue Learner's debate on anonymous whistleblowers www.carehome.co.uk/news/article.cfm/id/31/should-local-authorities-ignore-anonymous-whistleblowers