Last reviewed 18 March 2015

In April, a new set of national standards for care homes will become operative. Jef Smith reports.

The new set of national standards for care homes, which come into force in April, will carry the adjective “fundamental”. However, whether they will prove any more durable or enforceable than the “minimum” standards (2003–2009) or the “essential” standards (2009–2014), which preceded them, remains to be seen. The idea of a basic level of quality below which no provider should fall was noble and sensible, but the imperative implied by the words minimum and essential has never been a reality, since widespread non-compliance with at least some of the standards has been routinely permitted. Will “fundamental” herald a new era of firmness and consistency? There is already room for doubt.

In some ways, the Care Quality Commission (CQC) seems to be placing even less stress on this latest manifestation of what care homes must, at the most basic level, achieve in order to obtain — and retain — the registration without which they cannot legally provide a service. The regulator’s view of a home’s performance, always important for reputational purposes, will soon be absolutely vital, since it will be the basis for a public rating. It is hoped that increasingly savvy consumers will welcome a system which grades homes as outstanding, good, requiring improvement or inadequate, and that, whether they are self-funders buying their own care or local authorities commissioning services on behalf of those assessed as being in need, they will support high quality and shun homes which fall short.

There are, however, several different statutory or quasi-statutory frameworks which providers will have to keep in mind, both generally in their daily operations and specifically when preparing for inspections, and it is not entirely easy to relate these to each other. For a start, the Department of Health has published, and annually updates, what it calls its Adult Social Care Outcomes Framework. This document, produced in association with local government representatives, works on four “domains”, respectively ensuring quality of life, delaying and reducing the need for care, ensuring a positive experience of care, and safeguarding vulnerable adults, each of which is broken down into a set of outcome measures. It is true that this is aimed principally at commissioners, but the domains can surely be said to relate also to front line services.

Using the framework and the standards

At first glance this framework looks quite sensible, even comprehensive, but when it is placed beside the 11 fundamental standards, it becomes clear that there has been no attempt at aligning the two. Unlike the Essential standards, which were published by the CQC as the regulatory authority, the Fundamental standards are a Department of Health product, so why this lack of coherence? It is not that the documents actively conflict but, as they express objectives slightly differently and in a different order, the effect for a reader is at very least confusing.

The new standards, for example, divide the issue of consumers’ safety into “Safe care and treatment” and “Safeguarding service users from abuse and improper treatment”, a distinction not made in the Framework. The Framework’s section on quality of life might be said to be spelled out in more detail in the Standards’ “Person-centred care”, “Dignity and respect”, “Meeting nutritional and hydration needs” and “Duty of candour”, but could not these also be seen as ensuring “a positive experience” while being cared for? In fact, when you think about it, is there really much of a difference between “quality of life” and “a positive experience of care”. The impression becomes inescapable that these lists, multiple-authored — in fact generally drawn up by committees — are prepared with little reference to each other and with equally little consideration for providers who have to make operational sense of them.

Broadly speaking, the Fundamental standards cover pretty much the same territory as do the Essential standards, with the important addition of the Duty of Candour, but it is a complex task to relate them to each other in detail. This might be thought a rather academic quibble, but from the point of view of a busy home’s manager having to brief staff on their duties and ensure that local policies match national guidance, it represents one more headache.

Using the standards and the KLOE

Even more relevant from a practitioner standpoint is understanding how the new standards fit in with what CQC says its staff will be looking for when they inspect homes. Here, the starting point is a set of five key components encapsulated in the questions “Is it safe? Is it effective? Is it caring? Is it responsive? and Is it well-led?”. Andrea Sutcliffe, the CQC’s Chief Inspector of social care calls these her “Mum’s Test”, attempting, in a way which some find telling but others feel to be trivialising, to make us ask whether the home under scrutiny is one in which we would be happy to place our own mother or — for some of us, even those who are dads or not even parents at all — go into ourselves.

To unpack the five components, the CQC has published what it calls its Key Lines of Enquiry or KLOEs, addressed to inspectors but freely available to providers and others. The KLOEs give for each component a definition, a breakdown into three, four or five areas of application, a series of questions or prompts illustrating how each area might be explored, and a list of the sources of evidence to be considered. Thus, for example, a well-led service will be expected to demonstrate a positive culture, good management, effective methods of delivering high quality care, and evidence of partnership with other agencies. So far, so persuasive.

Doubts start to arise when one asks how these particular five components were selected as critical. The response, that they were widely consulted on and attracted a generally warm reaction, is unconvincing; the consultation offered no alternatives and those who were asked were as unlikely to dismiss any of these apparently positive elements as to find motherhood or apple pie reprehensible. Elsewhere, the CQC has defined its own purpose as ensuring care that is “safe”,”effective”, “compassionate” and “high quality”. Safe and effective match the other list, and compassionate might be regarded as more or less synonymous with caring, but what has happened to responsiveness, and do the pretty vague terms high-quality and well-led equate?

The choice of KLOE terms

The truth is that one could have set out any number of OK words without their proving particularly controversial in themselves, but what about the omissions? Where, for example, is one supposed to judge whether a home gives residents dignity, a key political objective over recent years, or to be sure that its workings are transparent, in line with the currently strongly pressed duty of candour? Obviously one could shoe-horn these and similar desirable qualities into practically any list of components. Indeed the prompts show just how much overlap there is and indeed is acknowledged to be.

To test the validity of the CQC’s structure for inspection, I personally challenged Andrea Sutcliffe when I met her at a recent conference to identify which of the components embraces the politically all-important requirement for care to be personalised. She immediately replied responsive, which does indeed include the — somewhat tautological — question, “How do people receive personalised care that is responsive to their needs?” and another which refers to “co-ordinated, person-centred care”, but there is a separate reference, this time under well-led, to “a positive culture that is person-centred” and many mentions elsewhere which relate to aspects of personalisation like respecting people’s preferences, treating them as individuals, and supporting their personal choices. Personalisation, you might say, features nowhere and everywhere.

Take another example. A home’s policies, procedures and practice in relation to safeguarding its residents would surely be tested during the part of an inspector’s investigations under the component Safe, but could a home be judged well-led or caring if it was unsafe? Surely not. In fact if a home fails on the questions designed for its being safe, responsive, caring or effective, could it conceivably be considered well-led?

Testing the system

Does this sort of double-counting and over-lapping matter? The answer is that it will indeed matter very much when the scores derived from positive answers to the prompt questions are accumulated into a home’s rating. The fact that the grading system will not of course operate by simple and transparent arithmetic actually adds to the problem, as a home which an inspector claims failed to meets one of the components under one set of prompts will plausibly be able to point to a different set on which it did rather better. Andrea Sutcliffe admits that the CQC is preparing for legal challenges, but the system will grind to a halt or at least seriously lose credibility if these multiply significantly. Ratings, don’t forget, will be crucial to business, so there will be every incentive for a home to appeal against a grade which its management considers unjustly low.

It is difficult to see precisely how disputes of this sort will be handled. Andrea Sutcliffe told me that that the five components and the KLOEs provide for a holistic view of a home’s functioning, which is better, she argues, than considering simply compliance with the regulations, indeed that a home may be compliant with all of the regulations but still not be rated as outstanding. The five components and the KLOEs lack the statutory authority which Parliament has given to the regulations, a point which any decent lawyer will surely exploit and any court or tribunal be obliged to take into account. The rating system is going to be controversial whatever criteria are used for making decisions; that the CQC has chosen to erect a judgment structure which is virtually independent of the legislation is surely asking for trouble.